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Incriminating Evidence? Get Lost!

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.

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.

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.

19 comments on this story
by John

NSW police - crooked one minute, corrupt the next. They have a long history of excluding themselves from the law.

January 18, 2014 @ 8:39am
by Maria Ceresa

You are a gem of a journo Bernie Lagan. Never stop.

January 18, 2014 @ 9:11am
by Fredrick.R

Power is for political purposes swept into corners; If you cant arrest a someone in a police uniform what can you do. Its was like the time the RTA sacked a bikey its just you know what good does that do!

January 18, 2014 @ 10:27am
by Bill Miller

Seems that we cannot rely on police evidence. Is anyone really surprised? If the can get away with deleting it then they can get away with fabricating it. Murphy's law applies: if things can go wrong they will. So, in any transaction where evidence may become important, prepare for things to go belly-up by keeping a record in a form that cannot be denied; in this case if someone's mobile phone had it's sound recording switched on, there may have been incontrovertible evidence of what happened.

January 18, 2014 @ 10:59am
by John Barnes

I thought the courts followed a precedent that if documents of a party in a court case are missing or have been destroyed, then it is accepted that the evidence within the documents were prejudicial for the respondent's case? This precedent is an important one as it compels individuals and bodies to ensure that records are secured and available. (Although this leads to criminals keeping 'two sets of books'. Should this precedent now also apply to video and audio records that are well 'documented' as well as the written word? If so, there would be a chance for justice to rule over law for these victims of what appears to be obvious police corruption. I do hope that Messrs' Shoebridge, Tanner & rook pursue the matter.

January 18, 2014 @ 1:44pm
by Serkan Ozturk

Hi there,

Great coverage Bernard. I've been following this story for two years and in my mind both Mr Rook and Mr Tanner have been sorely mistreated by police. I've written a couple of stories on the case while working in the LGBTI media. For more detail into the case please take a look at:

http://gaynewsnetwork.com.au/news/like-a-bad-horror-movie-5546.html

http://www.starobserver.com.au/news/local-news/new-south-wales-news/police-fag-bashing-case-headed-for-court/108349

Interestingly, it turns out that about six or so months after the incident involving David and John in mid-2011, the commander of Rose Bay police had been replaced by Superintendent Michael Fitzgerald, who was previously director of investigations with the Professional Standards Command which investigates serious criminal allegations and corruption involving police.

January 18, 2014 @ 1:54pm
by Tzephaniah

Govt Authorities are intentionally Destroying the Lives of the Disabled, you wont hear that in the news, they love to cover that up.
Their Practically doing anything & everything they can to stop them having happy healthy sex lives, so they make them out to be Deviants in Law & Court.
On top of that also any brainwashing involved inc. on interviews. an forced coercion by the gun of their shield of Lies of the law.

January 18, 2014 @ 5:55pm
by Peter Timmins

Bernard,
You comment that Mr Montgomery's decision means that 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.

However the decision in this case was that it was probable that the Police didn't hold the information at the time the application was received.

It all sounds murky to me. And a pity that the Information Commissioner didn't dig deeper when the matter was investigated earlier in the piece.

There is nothing new in the ruling that an agency only has an obligation to provide information held at the time the application is received.

However in the situation you pose of an agency 'losing' information after somebody sought to obtain it under FOI laws, s 120 of the GIPA act would be highly relevant:
Offence of concealing or destroying government information
A person who destroys, conceals or alters any record of government information for the purpose of preventing the disclosure of the information as authorised or required by or under this Act is guilty of an offence. Maximum penalty: 100 penalty units.

There are other offence provisions in the act including directing an officer to make the wrong decision on access, and improperly influencing a decision.

The DPP or the Attorney General must authorise proceedings for an offence of this kind in the Local Court. The ADT has no jurisdiction.

I'm not aware of any such proceedings since the act commenced-this doesn't mean there haven't been convenient 'losses' similar to the facts in this case.

January 18, 2014 @ 6:13pm
by John Fraser

<

I don't understand why the police officers involved don't have their names and rank published here.

That way it will be on the net forever and should .... just like the missing tape ..... by "coincidence" any of these police officers come to the attention of the authorities there will be a record of previous engagement.

Then perhaps they can be added to this list :

http://www.bentlawyersandcops.com/bent_cops_list.htm

January 18, 2014 @ 6:28pm
by Cajan

What about providing Mr Montgomery's CV ? Perhaps more of his decisions need pulication.

January 19, 2014 @ 10:06am
by nvjustice

I cannot see the point of naming NSW officers on an English list - especially as there appears to be no evidence or finding as to which particular officer was responsible. That is not to say the issues raised by Mr Lagan's article are not serious and urgently require addressing. Peter Timmin's observations are helpful in this regard.

As to Cajan's comment regarding the Tribunal member, Mr Montgomery, it would be more helpful to address his decision in this case and the reasons for such rather than make sly innuendo about Mr Montgomery's independence / background vis a vis his "CV". Furthermore, if Mr Cajan actually wishes to read decisions of the Tribunal, they have been published online for many years (as are those other jurisdictions) on the AustLii website (http://www.austlii.edu.au/). In this regard, our legal system is open to any member of the community who wish to read original decisions or attend court rather than rely on the gutted and misquoted versions served up by the majority of mainstream media.

January 20, 2014 @ 12:29pm
by John Fraser

<

Reports that 40% of NSW police have a criminal record.

That should give everyone confidence !

January 20, 2014 @ 5:28pm
by David Rook

I am one of the chaps referenced in this story and thanks to Bernard for writing this. I did want to add, the reason why NSW Police were able to get away with this really boils down to the fact they lack SOPs (standard operating procedures) to effectively manage the 'end to end' process of taking CCTV off the hard drive in the station and then transferring it into an executable file. Because they didn't do this properly, the chain of evidence was forever lost, so we never had the original hard drive from the CCTV to compare against and once Police locked up the CCTV into a playable executable fie and disposed of the original hard drive, you can never 'prove' tampering unless, as in my case, I was allowed to see the original and I sent that night a detailed second by second account to my then lawyer. NSW Police were very sloppy in how they handled this, and of course they had good reason to. I was told to make the edits they made, they have clearly used highly skilled experts to make the changes. Each edit we pointed to has a clear and obvious purpose. Why they deployed this dirty trick on a relatively trivial matter is beyond me. Had Rose Bay Police tasered my partner to death that night then the stakes would have been far higher. Until NSW Police apply formal SOPs when they are asked to produce CCTV (and they adhere to these - maintaining a trail of evidence) then this issue will happen again, and given that its clear NSW Police have the ability, when needed, to edit video to cover up their misdeeds, SOPs to then expose what the other hand is doing are needed more than ever.

January 21, 2014 @ 2:39pm
by Thomas McLoughlin

I think that statistic may be 1 in 40 police have a conviction, as per Murdoch tabloid.

January 21, 2014 @ 3:46pm
by Thomas McLoughlin

What in fact does FoI expert Peter Timmins think. That would be good to know. I can't see him quoted here (yet).

January 21, 2014 @ 3:47pm
by John Fraser

<

@David Rook

Australia has to move on from Caesar judging Caesar.

When CCTV evidence is asked for an independent authority must take over .... ICAC perhaps.

I hope you get over your bad experience but still remain an activist for change.

Don't let it rule your life but work so that others don't have to experience it.

January 21, 2014 @ 10:12pm
Show previous 16 comments
by Mark J

Any suggestion of official corruption should be repugnant to us all, and if the CCTV footage subject of this article was intentionally tampered with then that would surely give us all reason to be concerned. However we really do need to take a deep breath before we all start attacking the police like a bunch of seagulls on a potato chip.

The decision by Montgomery seems to me to be a sensible one. An application for information can surely only apply to information which was in the possession of the agency at the time the application was made. The application surely can't apply to information that was once, but is no longer, in the agency's possession. The issue of whether the information sought was improperly disposed of is surely a question for bodies other than the Information Commissioner.

January 22, 2014 @ 8:10am
by Dave Bradley

Yes you are right Mark the suggestion is more than repugnant it is also a grave threat to justice.
Yes I understand your point about the Information Commissioners Limitations .
Yes if I accept your point, then I agree the this should have been referred onto the responsible body.
The question is just who is the responsible body?
And why did the Information Commissioner not refer this on to them immediately, or at least, on having defined what they regarded as their limitations .
Or is there really no accountability?
And it takes since the night of June 4, 2011 to find this out!
The initial response to refusing the request for information “an overriding public interest against disclosure” sounds very similar to Operation Sovereign Borders bizarre rationalisations for attempted censorship and freedom of transparent accountability with the promise of course there will be in due course everything made available to us with relevant legal bodies to oversee and ensure integrity and make sure we are all informed of events.
Seems this is a bit of a pattern well rehearsed at all levels .
How, in Sydney, on September 14, 2011, in what we have to trust is a free democratic society, with rule of law, could our access to judge the truth of an assault by people we need to trust, against people who could be any of us, possibly be a threat “an overriding public interest against disclosure”.

January 23, 2014 @ 9:58am
by Bernard Lagan

Thomas McLoughlin- thanks for your post . Peter Timmins has indeed commented and his post is above and insightful, as always. Cheers

Bern

January 23, 2014 @ 1:18pm
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