Incriminating Evidence? Get Lost!
By Bernard LaganJanuary 17, 2014
If government information goes missing – say, CCTV footage of alleged police misconduct – is it simply “game over” for freedom-of-information watchdogs?
Some 25 minutes of footage from a Sydney police station’s closed-circuit television cameras – allegedly showing officers assaulting and ridiculing a gay man – might have been mysteriously deleted. But this loss will at least mark a precedent – albeit an unhappy one – in the history of Australia’s freedom of information (FOI) law, following a fresh legal decision on the case of the Rose Bay police, a couple’s fraught night and the vanished police video.
Followers of the circuitous legalities of Australia’s FOI system have long pondered a scenario in which a government agency, hit with an FOI request for particular information, was no longer able to produce that information, even if its existence once was a certainty.
Would the government agency face legal sanction? Could it be disciplined by higher authorities? Could it be compelled to keep looking?
The answer, it seems, is no to all.
The lawyer and Greens member of the New South Wales parliament David Shoebridge has been trying for over two years to find out what happened to the 25 minutes and 46 seconds of CCTV that was recorded on the night of June 4, 2011 but has since disappeared from Rose Bay police station’s computer system.
You’d be right in thinking that that the departed police CCTV footage may well have contained images that some Rose Bay police officers would not have wished to see widely circulated.
But first let’s look at how FOI laws cope with a situation in which the official information being sought vanishes without explanation.
The answer – at least according to the NSW Administrative Decisions Tribunal, arbiter of the state’s FOI laws – is that the laws don’t cope all that well.
Shoebridge had asked the tribunal to formally refer possible misconduct by Rose Bay police officers – in relation to the disappearance of the footage – to the Minister for Police. He also asked the tribunal to refer the police to the state’s FOI watchdog, the Information Commissioner, who is the senior public servant charged with ensuring that government agencies comply with FOI laws.
Almost a year after Shoebridge’s request was made, the tribunal’s senior member, Stephen Montgomery, handed down his decision, on December 31, 2013. He refused both of Shoebridge’s requests.
Yet Montgomery accepted that the footage that disappeared from the police computers had once existed.
The tribunal’s reasoning as to why no further action needed to be taken against the police involved is very likely to be relied on in future decisions, should a similar situation arise again under FOI law in Australia – that is, in a situation where information known to have existed is claimed to be “lost” by a government agency after it receives an FOI request to produce it.
In his ruling on this case, Montgomery said that the tribunal had the task of deciding whether there were reasonable grounds to believe there was some more, unreleased footage (the “lost” footage) and whether the police had made all reasonable efforts to find it.
To understand how he was able to exempt the police from further sanction over the disappeared footage, we first need to go back to the Saturday night in 2011 in Sydney when a 29-year-old man, John Tanner, went to the Vivid Live music festival at Sydney Opera House.
There was a confrontation with security guards and Tanner, upset and injured, elected to report the guards to Rose Bay police near his home. He was met at the police station by his partner, David Rook, 42, who readily admitted he’d been drinking that night but claimed not to be drunk.
Tanner showed his injuries to the police. They refused to take a statement and advised Rook to take his partner to a hospital for treatment. Rook agreed and drove Tanner home first. But two Rose Bay police officers followed them, and, after Rook had parked and left his vehicle, they breath-tested him. The results showed him to be over the limit and he was taken away to be charged for drink driving. (The charge was eventually thrown out by a magistrate who ruled that the police had exceeded their powers when they breath-tested Rook on his own property.)
John Tanner – unable to get into the house, because the police had Rook – returned to Rose Bay Police Station shortly after 3am in an effort to locate his partner and to complain about a gay slur he says was made by one of the officers when he and Rook were at the station earlier that night. Tanner alleges he was then violently assaulted by Rose Bay police officers inside the station and tossed out the front door. The assault was conducted, he alleged, over a period of about 20 minutes as Tanner repeatedly insisted on making a statement to police. The police rebuffed him. The assault, it is alleged, included punches, hits, abuse and threats.
Rook, joined by Tanner, used FOI laws to request access to the police CCTV footage recorded at Rose Bay police station at the time Tanner was inside. The police, on September 14, 2011, refused their request, citing “an overriding public interest against disclosure”.
The couple appealed the decision, but while awaiting an outcome Rook was allowed by police to view the electronically stored footage at Rose Bay Police Station on September 20.
Rook made detailed notes – which he later sent to his lawyers – of the scenes containing the alleged assault upon his partner. The footage, he maintained, clearly showed that there had been an assault.
Rook and Tanner succeeded with their FOI appeal to obtain the footage. The police Internal Affairs Unit – which by now had taken possession of the footage – was compelled to hand over a copy.
But the crucial part of the footage, showing the period during which Tanner claimed to have been assaulted, was now missing – all 25 minutes and 46 seconds of it.
On November 8, 2011, John Tanner complained to the Office of the New South Wales Information Commissioner – the office charged with ensuring that government agencies comply with FOI laws. Tanner claimed that the police had doctored the footage they’d supplied to him; the crucial scenes were missing.
Three months later – in late February 2012 – the Information Commissioner replied to Tanner. He said he agreed that there were inconsistencies in the footage. There were skips in the recorded time-stamps.
The Information Commissioner’s report said: “Prima facie sections of the footage appear to be missing from the copy of the CCTV footage held by the [police] Internal Affairs Unit and given to Mr Tanner.”
The Information Commissioner said there was a question as to whether Rose Bay police officers had doctored the footage before they passed it over to the police Internal Affairs Unit; but he did not have enough evidence to say that footage police supplied to Tanner was not the version originally recorded.
In the circumstances, the commissioner said, he would not investigate further.
David Shoebridge by then had taken an interest in the case as a parliamentarian. He took a case to the New South Wales Administrative Decisions Tribunal, arguing for the tribunal to refer the conduct of the Rose Bay Police to the Minister for Police and to the Information Commissioner.
Shoebridge claimed that some time after the occasion at Rose Bay Police Station when police had allowed David Rook to view the footage – which contained scenes of the alleged assault on his partner – those scenes had been cut.
He also argued that the evidence showed that there were systemic failures in police CCTV records at Rose Bay Police Station that undermined the worth of the station’s CCTV system as a reliable record of events inside that station.
Shoebridge asked that the tribunal issue a report of improper conduct on the part of Rose Bay Police officers to the Minister for Police.
He failed to convince the tribunal.
In his written determination of December 2013, the tribunal’s Stephen Montgomery said he accepted David Rook’s evidence that the footage he viewed at the police station differed from the copy later provided to him by police. But Montgomery said he could not say how the footage came to be “lost”, although it likely happened before October 18, 2011 when police had been compelled to pass a copy to John Tanner.
Then comes the crucial paragraph of Mr Montgomery’s decision: “That being the case, I am satisfied that it is also probable that the Respondent [Rose Bay Police] did not hold the missing footage when it received the applicant’s [Rook and Tanner] access application on November 8, 2011.”
Montgomery then said that New South Wales FOI law “limits the Respondent’s [in this case the police] obligation to provide access to information it held when the access application was received”.
In other words if a government agency claims it has “lost” information after somebody seeks to obtain it under FOI laws, then there’s nothing much anyone can do.
Rather convenient, you may think.
And, it seems to be an outcome with no consequences – other than a gentle suggestion within Montgomery’s ruling that police review their CCTV system to prevent a similar issue arising again.
Shoebridge is, understandably, unimpressed.
He told The Global Mail: “The tribunal clearly found that CCTV footage went missing at the Rose Bay police and, despite being given every chance, the police were unable to explain how this happened.
“These findings open up the prospect that CCTV recordings at police stations are able to be manipulated, and this places a huge question mark over their utility as a police integrity measure.
“The cloud of uncertainty that now hangs over the police’s internal CCTV records is ultimately not in the interests of the police or the general public,” Shoebridge said.
This story has been changed from the original version to correct the identity of the person breath-tested.