Turner v Commissioner of Police, NSW Police Force

The Hearing

1. At the hearing the Respondent relied on an affidavit of Ms Glen Singer, Senior HR Advisor/Legal Officer, Corrective Services NSW, dated 10 November 2016; and a statement by Senior Sergeant Nargis Fam, External Information Access Unit (EIAU), NSW Police Force, dated 9 November 2016. Ms Singer and Senior Sergeant Fam gave oral evidence and were cross examined. The Respondent provided Further Submissions to supplement the written submissions previously filed in the proceedings.
2. Mr Turner provided written submissions dated 19 November 2016 and 26 November 2016, both with annexures, and tendered a copy of a letter dated 2 March 2010 by Regional Superintendent Barbara Andrews to the General Manager, Wellington Correctional Centre, Corrective Services NSW. Mr Turner had previously provided written submissions dated 17 November 2015 and 30 July 2016.

Submissions

1. The Respondent submits that the Tribunal should affirm the decision to refuse to deal with the application on the basis of s 60(1)(b1), or in the alternative, s 58(1)(b), of the GIPA Act.
2. Section 60(1)(b1) provides: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): … (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, …
3. Section 58(1)(b) provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (b) deciding that the information is not held by the agency, or …
4. In relation to s 58(1)(b), the Respondent submits that the Tribunal should find that there are no reasonable grounds to believe that the requested information exists and is held by the agency. Previous decisions of the Tribunal in respect of access requests by Mr Turner for video and other footage held by Corrective Services NSW have established what footage is held by that agency; the evidence of Senior Sergeant Fam supports the finding that there was no police investigation of the incident in March 2010 that is the basis of the access request, so that while NSW Police were involved there was no action taken by them; the evidence of Senior Sergeant Fam was that if there were video footage it would be recorded in the COPS database; and the evidence of both Senior Sergeant Fam and Ms Singer was that it would only be in the context of an investigation by police that Corrective Services NSW would provide video footage. The Tribunal should also find that the search efforts were in the circumstances of the case reasonable and adequate, based on the search in the COPS database, and the evidence of Senior Sergeant Fam of her additional search in View IMS.
5. In relation to s 60(1)(b1), the Respondent submits that based on the previous decisions of the Tribunal in respect of access requests to Corrective Services NSW, all relevant material has been uncovered. Mr Turner has had access to the relevant recordings. There have been three recordings identified as relevant, and to the extent that there may be an unresolved issue with what Corrective Services NSW states is a typographical error in numbering of recordings, that is properly the subject of separate Tribunal proceedings. The Respondent submits that if the Tribunal is not satisfied that the Respondent's decision should be affirmed under s 58(1)(b), the appropriate course would be to wait until those separate proceedings are finalised to make a decision on s 60(1)(b1).
6. In his oral submissions Mr Turner submitted that the evidence of Senior Sergeant Fam and Ms Singer should not be accepted. There is evidence of illegal withholding of evidence, false file locations, and documents relating to him. The change in video numbering that is referred to in the affidavit of Ms Singer demonstrates that there has been a change in the story about the video footage. Senior Sergeant Fam did not search all relevant areas, for example she did not search Crimestoppers. The COPS event numbers are unreliable, and Senior Sergeant Fam only searched on 7 March 2010, whereas another person on 4 March 2010 called the police. The footage was certainly created, and the police must have obtained it. It is not true that the incident was not investigated by police, because the Corrective Services Investigation Unit conducted a thorough investigation. It is obvious that the footage exists, and one COPS event is not an adequate search. All the videos he saw in 2013 were modified; the case report on which Ms Singer relied is not accurate because it was not dated 2013; and there has been a contravention of s 73 of the Civil and Administrative Tribunal Act 2013 (NSW).
7. Mr Turner's written submissions recount a number of concerns, primarily in relation to Corrective Services NSW, but also to other agencies including the Respondent. Many of the issues raised extend well beyond the scope of any matters which can be considered in this application under the GIPA Act, including allegations of data tampering, concealing of evidence, obstruction of his legal mail, and failure of various agencies to investigate complaints. Those parts of the written submissions that respond to the issues that require determination in the remaining part of access request 128633 allege that CCTV and squad cam footage from Bathurst Correctional Centre (CC) should be in existence, as it is stored for between 7-12 days before it is taped over; that a use of force incident had taken place at Wellington CC; that the Corrective Services Investigation Unit (CSIU) had investigated; and that NSW Police, Bathurst Police, and Corrective Services Investigation Unit had retained both hand-held footage and CCTV footage.
8. In his written submissions dated 19 November 2016 Mr Turner submitted that Corrective Services NSW has tampered with and concealed hand-held video footage and is withholding CCTV footage. The Segregation Block in which the incident occurred is heavily monitored. NSW Police, Bathurst Police and the CSIU, which is a branch of the NSW Police Force, have retained hand-held video footage and CCTV footage. The CCTV videos are inconsistently named, and there are two stated versions of the footage at issue, stated as "VID" and "V10". Hand-held video and CCTV are separate processes, and thus retained by the relevant staff on a different software format. The search conducted was fundamentally flawed, and inadequate. The Corrective Services NSW responses to his access requests were flawed. Corrective Services NSW has not provided him with access to WCC VID.098 footage, and has replaced that footage with the manufactured copy WCC VID.096.

Consideration

1. As noted in the previous decision, s 9(1) of the GIPA Act provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. In this part of access request 128633 Mr Turner is seeking access to "CCTV, cell, cam recorder footage…".
2. The term "government information" is defined in s 4(1) of the GIPA Act to mean "information contained in a record held by an agency"; a "record" is defined in cl 10 of Sch 1 to the GIPA Act to mean "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means".
3. The material to which Mr Turner is seeking access is "government information"; the issue is whether the decision of the Respondent to refuse to deal with his request for access on the basis of previous access given by Corrective Services NSW, or that it does not hold the information sought, is the correct and preferable decision. The onus is on the agency to establish that the decision the subject of review is justified: s 105(1) GIPA Act.
4. For the reasons which follow, I am satisfied that the decision of the Respondent that it does not hold the information requested is the correct and preferable decision.

The s 58(1)(b) claim

1. Under s 58(1)(b) of the GIPA Act an agency can decide an access application by deciding that the information is not held by the agency. Section 53 of the GIPA Act specifies the searches an agency is required to undertake if it seeks to rely on s 58(1)(b) of the GIPA Act: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
2. In Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 the Queensland Information Commissioner identified two questions for consideration: first, whether there are reasonable grounds to believe that the requested material is held by the agency, and secondly, whether the search efforts made by the agency have been reasonable in the circumstances of the case. That decision has been followed in decisions of the Tribunal under the GIPA Act, including most recently in Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303.
3. Section 53(1) limits the agency's obligation to respond to a request for information held by it at the time of the access request. The obligation does not extend to information once held by the agency but which is no longer held in the primary systems of the agency: Robinson v Commissioner of Police [2014] NSWCATAP 73. The applicant must put some credible material or submissions that information of the kind requested exists, and it is not sufficient for the applicant to assert non-compliance on the basis of a general mistrust of the agency: Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195. The focus of the enquiry required by s 53 is the administrative steps taken by the agency's search officers: Robinson v Commissioner of Police [2014] NSWCATAP 73.
4. As noted above, the Respondent relied on the evidence of Ms Singer and Senior Sergeant Fam. In her affidavit Ms Singer stated that as a Legal Officer for the Professional Standards Branch of Corrective Services NSW between November 2007 to May 2015 she had been responsible for dealing with Mr Turner's application for review of earlier decisions concerning GIPA applications in which he had sought access to information including CCTV footage of himself at Wellington and Bathurst Correctional Centres in 2010. Of relevance to the Tribunal's consideration under s 53, Ms Singer stated that based on her experience, NSW Police would be given access to CCTV footage taken inside a correctional centre where they were investigating potential criminal charges, for example an allegation of assault in a use of force incident, and that NSW Police would not otherwise be provided with CCVT footage taken inside a correctional centre.
5. In her statement Senior Sergeant Fam states that in her current role as a coordinator of the NSW Police External Information Access Unit since March 2009 she oversees all staff members including those involved in the processing of access applications under the GIPA Act. Senior Sergeant Fam states that in her experience NSW Police would only hold CCTV footage if it was obtained during the course of and for the purpose of an investigation. In responding to Mr Turner's access application 128633, Senior Sergeant Fam conducted a search of his previous applications, and identified correspondence from Mr Turner of 25 August 2014 (in relation to IAU reference 126432) in which he provided three discs, which included partially pixelated CCTV footage. The first footage (7 minutes) is named "Lithgow" and shows a number of officers transferring Mr Turner from one part of the gaol to a cell within the gaol; the second (just over three minutes) is named "Wellington" and shows a number of officers searching Mr Turner in his cell. The second aspect of Senior Sergeant Fam's search was of the COPS database. Senior Sergeant Fam described the COPS database as the operational database used by NSW Police officers to record events, activities and inquiries and record the steps taken in respect of those events. Senior Sergeant Fam's evidence was that the COPS database does not allow documents or files such as video footage to be uploaded to it, and at the time of the alleged assault in 2010 any footage held by NSW Police would have been recorded in the event on COPS as a "brief item". Senior Sergeant Fam reviewed the COPS entries in relation to Mr Turner for 2010, and identified COPS Event E39998875 as relevant, and provided a copy (Annexure B to her statement). At paragraph [12] of her statement, Senior Sergeant Fam stated: I have reviewed COPS entries in relation to Mr Turner and I have not identified any reference to there being CCTV footage held in relation to any investigation involving Mr Turner at Wellington or Bathurst Correctional Centres in 2010.
6. In oral evidence Senior Sergeant Fam stated that since preparing her statement she had conducted an additional search in the NSW Police "View IMS" system, which now enables the uploading of footage. The COPS database previously would state in the body of a report that there was footage and it would be noted under "brief item" and stored manually within the brief. It would not be limited to CCTV or other types of footage, and would record any material obtained in the course of an investigation. If there was no reference to a "brief item", there would be no material. If there was a complaint and police attended and viewed footage, they would get a copy of the footage. NSW Police would have access to video footage of an incident in a correctional centre if a copy was handed to them for the purposes of an investigation, otherwise the ownership of the footage is with the correctional centre. Senior Sergeant Fam stated that in addition to searching for specific COPS Event numbers, she had looked up profiles under Mr Turner's name and found events within that year. The COPS database comes up with variations of the name. Senior Sergeant Fam stated that she had not contacted the Professional Standards Division, or the Commissioner's office, Crime Stoppers, Archives, any local area command, Bathurst Police, staff rosters, or any other repository of NSW Police, as she had no reason to do so. She relied on the information in the COPS Event report, and there was no action taken by police and nothing in the Event report to indicate that there was any type of footage with the NSW Police. She does not have access to microfilm records, and had no reason to check. She did not check with any correctional centre, or any other person from Corrective Services, or any other police officer.
7. The terms of Mr Turner's access request specified "CCTV, cell, cam recorder footage" of himself, "and other relevant", at Wellington and Bathurst correctional centres in 2010. Mr Turner's submission that hand-held video and CCTV filming are separate processes was not disputed by Ms Singer and Senior Sergeant Fam, both of whom acknowledged in oral evidence that there would be a difference between CCTV footage and other footage such as hand held recordings. The issue is whether there may be some CCTV or other video footage relevant to the access application held by the Respondent and, if so, whether the Respondent has undertaken reasonable searches to find it.
8. I accept the evidence of Ms Singer and Senior Sergeant Fam, based on their experience in managing access applications for their respective agencies, that any CCTV or other footage recorded at a correctional centre would be held by Corrective Services NSW, and that access would ordinarily be given to NSW Police for the purposes of an investigation conducted by them. I accept Senior Sergeant Fam's evidence, based on her experience as coordinator of the EIAU, that the existence of CCTV or other video footage would be recorded by NSW Police in the COPS database as a "brief item" and stored manually, and would now be uploaded and accessible on "View IMS".
9. The obligation on an agency to undertake reasonable searches is limited by s 53(2) and (3) of the GIPA Act to use of the most efficient means reasonably available to the agency, and of any resources reasonably available to the agency. The evidence before the Tribunal is that Senior Sergeant Fam searched by referring to previous access determinations, and by reference to Mr Turner's name in the COPS database. A search conducted by examining previous access applications may or may not, depending on the content of those earlier access applications and how broadly or narrowly they have been interpreted by the agency, constitute a reasonable search: see, for example, the discussion in Turner v Commissioner of Police, NSW Police [2016] NSWCATAD 303 at [108]. The evidence available to the Tribunal does not establish whether or not that is the case in the context of this application.
10. The COPS Event No E9998875 provided as Annexure B to Senior Sergeant Fam's statement records the reporting by Mr Turner at Bathurst CC on 7 March 2010 of an assault; the attendance by two Police officers; and the creation of a narrative on 8 March 2010 by Senior Constable Gunning, which records "no further investigation". The narrative records that police spoke to Mr Turner and to "staff". There is no reference in the COPS Event to the existence of a "brief item", or the existence of any CCTV or other video footage, or whether any CCTV or other video footage that may have been in existence was viewed. Based on the evidence of Senior Sergeant Fam relying on her knowledge of regular practice, the absence of any such entry would support the conclusion that any CCTV or other video footage that may have been in existence in March 2010 was either not provided to Bathurst police at the time, or has not been retained by NSW Police.
11. Mr Turner challenged the extent of the searches undertaken by Senior Sergeant Fam. The access request the subject of this review is directed to a specific form of "record", rather than a more general request for access to material or documents. In those circumstances I accept the evidence of Senior Sergeant Fam that the relevant location where the retention by the Respondent of a record of that kind, namely CCTV or other video footage obtained from another agency, would be recorded would be through the contemporaneous entry in the COPS database. As a consequence, I accept the evidence of Senior Sergeant Fam that the absence of any such entry would mean that there was no such material held by NSW Police. I accept the evidence of Senior Sergeant Fam that she did not limit her search of the COPS database to a specific date or Event Number, but searched more generally for 2010 entries under Mr Turner's name.
12. On that basis, I am satisfied that the Respondent has undertaken reasonable searches for the government information specified in paragraph 1(c) of the access request 128663. The decision of the Respondent that it does not hold the information apart from recordings on discs previously provided by Mr Turner is the correct and preferable decision, and should be affirmed.

Section 60(1)(b1)

1. The Respondent's alternative submission was that Mr Turner has previously been provided with the information sought in this access request, relying on the provision of access to CCTV and video footage by Corrective Services NSW.
2. Mr Turner's applications under the GIPA Act to Corrective Services NSW for access to CCTV and observation footage of himself at Wellington and Bathurst correctional centres in 2010 have been the subject of several decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal: Turner v Corrective Services NSW [2013] NSWADT 39, Turner v Corrective Services NSW (No 2) [2013] NSWADT 232, Turner v Corrective Services NSW [2016] NSWCATAD 15, Turner v Department of Justice [2016] NSWCATAD 146. In summary, and without entering into a discussion of the substantive issues, the decisions made in 2013 resulted in Mr Turner being provided with viewing access to CCTV footage, and the 2016 decisions relate to a re-opening of the orders made in 2013. On the information provided by the parties in the course of hearing this application, there is an ongoing issue between Mr Turner and Corrective Services NSW as to that agency's handling of Mr Turner's access requests, in particular in relation to one of the videos.
3. The Respondent submits that to the extent that there is any outstanding issue with that video, that is properly the subject of the separate Tribunal proceedings with Corrective Services NSW and not the Respondent. The Respondent submits that the ongoing Tribunal proceedings in regards to what it describes (and Mr Turner disputes) as a typographical error issue do not vitiate the application of s 60(1)(b1) of the GIPA Act. The Respondent submits that Mr Turner has previously been provided access to the information sought in the present matter, and to seek to agitate the same arguments in the present matter would amount to an abuse of process.
4. In circumstances where there is an ongoing issue between Mr Turner and Corrective Services NSW as to whether the agency has provided access to all the CCTV and other video footage held by that agency, it is preferable that I express no view as to whether the Respondent in these proceedings can rely on s 60(1)(b1) of the GIPA Act, and, having regard to my conclusion on s 58(1)(b), it is unnecessary that I do so.

Orders

1. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 19 January 2017