Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors - [2008] NSWCA 140

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140

HEARING DATE(S): 29 January 2008

JUDGMENT DATE:
19 June 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 78; Basten JA at 79

DECISION: Question:
Is a notification under s 28(1)(b) of the Freedom of Information Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review?
Answer:
(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the Freedom of Information Act 1989;
(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24;
(c) the jurisdiction of the Tribunal conferred by s 53 of the Freedom of Information Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to ss 17 and 18 of the Freedom of Information Act.

CATCHWORDS: ADMINISTRATIVE LAW - Freedom of Information Act 1989– access to documents - a notification that an agency does not hold a document under s 28 of the FOI Act is not a “determination” for the purposes of s 24 - ADMINISTRATIVE LAW - Freedom of Information Act 1989 – jurisdiction of Administrative Decisions Tribunal - the jurisdiction of the Tribunal conferred by s 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by an agency

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997, s118
Freedom of Information Act 1989, ss 24, 28, 52, 53
Ombudsman Act 1974, s 26
Supreme Court Act 1970, s 48
Uniform Civil Procedure Rules 2005, r 6.35

CASES CITED: Atkinson v United States of America Government [1971] AC 197; [1969] 3 All ER 1317
Badgery v Murphy (1887) 4 WN (NSW) 85
Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52
Beesley v Commissioner of Taxation [2001] AATA 476
Brisbane City Council v Valuer-General (Qld) [1978] HCA 40; (1978) 140 CLR 41
Cianfrano v Director-General, Department of Commerce [2005] NSWADT 282
Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195
Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; 148 FCR 427
Daykin v SAS Trustee Corporation [2001] NSWSC 58; 51 NSWLR 328
Director-General, Department of Commerce v Cianfrano [2007] NSWSC 849
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
DQ v Commissioner of Police [2002] NSWADT 215
Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106
Frost v Amaca Pty Ltd [2004] NSWCA 358; (2004) 61 NSWLR 159
Holmes v Angwin [1906] HCA 64; (1906) 4 CLR 297
Jones v Wrotham Park Settled Estates [1980] AC 74; [1974] 1 All ER 286
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373
O’Hara v North Sydney Council [2005] NSWADT 100
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Puglisi v Administrative Decisions Tribunal of NSW [2001] NSWCA 298; 52 NSWLR 350
Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163
Re Kalman and Department of Veterans’ Affairs [1992] AATA 321
Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779
Sasterawan v Morris [2007] NSWCCA 185
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
The Queen v Rigby [1956] HCA 38; (1956) 100 CLR 146
Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443
Zukerman v Law Society of NSW (1986) 5 NSWLR 292

PARTIES: Administrative Decisions Appeal Panel (Appellant)
Director-General, Department of Commerce (First Respondent)
Robert Cianfrano (Second Respondent)
Sydney Markets Ltd (Third Respondent)

FILE NUMBER(S): CA 40566/07

COUNSEL: Submitting appearance (Appellant)
J Kirk (First Respondent)
In person (Second Respondent)

SOLICITORS: I V Knight, Crown Solicitor (First Respondent)

LOWER COURT JURISDICTION: Administrative Decisions Tribunal Appeal Panel

LOWER COURT FILE NUMBER(S): 069042

- 6 -

CA 40566/07

BEAZLEY JA
GILES JA
BASTEN JA
19 June 2008

Administrative Decisions Tribunal Appeal Panel

v

Director-General, Department of Commerce

Headnote

Mr Cianfrano made an application to the Department of Commerce under the Freedom of Information Act 1989 (FOI Act) seeking access to government documents in relation to the sale of land. The Director-General refused access to some of the documents sought.

Upon an application for review filed by Mr Cianfrano in the Administrative Decisions Tribunal (the Tribunal), O’Connor J ordered access be given to some of those documents to which the Director-General had continued to refuse access: Cianfrano v Director-General, Department of Commerce [2005] NSWADT 282. During the course of that hearing, a question arose as to the sufficiency of the search undertaken by the Director-General for the documents. This question was stood over for separate consideration.

In a second hearing, the Director-General disputed the Tribunal’s jurisdiction to determine the question as to sufficiency of search undertaken by the Director-General in response to the application: see Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195. Pursuant to s 118 of the Administrative Decisions Tribunal Act 1997, the Tribunal, by letter from the Registrar of the Tribunal to the Registrar of the Court of Appeal referred the following question for the opinion of the Court of Appeal:

“Is a notification under s 28(1)(b) of the FOI Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review?”

There were procedural irregularities in the referral that the Court directed be rectified by the filing of a Summons and Special Case pursuant to Part 6 Div 8 of the Uniform Civil Procedure Rules 2005. The Court also permitted the argument to proceed on the basis that, notwithstanding the express question referred, the matter in issue was the question of the Tribunal’s jurisdiction to determine whether an agency had undertaken a sufficient search in response to an application for access to documents made under the FOI Act. The matter also proceeded upon the basis that although there had been no express notification under s 28(1)(b) of the FOI Act that the Department did not hold a document, it was implied in the Director-General’s letter of 16 November 2004 in which he stated the documents to which he would grant access and the documents to which access was refused, implicitly included a statement that the Department did not hold any other documents.

The appeal was allowed.

Held per Beazley JA and Basten JA (Giles JA agreeing with Beazley JA and Basten JA):

Is a notification under s 28(1)(b) of the Freedom of Information Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review?

1. The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the FOI Act.

2. The formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24: [58], [59], [68], [103], [135].

Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (not followed); Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 (not followed); Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443 (not followed).

There is nothing in the express words of the FOI Act to that effect, nor can such words be implied in accordance with the principles of statutory construction: [62]-[65], [68], [105].

Jones v Wrotham Park Settled Estates [1980] AC 74; [1974] 1 All ER 286 (considered); Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (considered); Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 (referred to).

3. The jurisdiction of the Tribunal conferred by s 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to ss 17 and 18 of the FOI Act: [68], [69], [71], [76], [133], [135].

Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (not followed); Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 (not followed); Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443 (not followed).

4. Where a party alleges the insufficiency of an agency’s search, the appropriate channel of review is provided for in Pt 5 of the FOI Act in Div 1, “Review by the Ombudsman”, or by bringing an application for prerogative relief: [32]-[35], [65], [76], [78], [106], [107], [134].

IN THE SUPREME COURT

CA 40566/07

BEAZLEY JA
GILES JA
BASTEN JA
19 June 2008

Administrative Decisions Tribunal Appeal Panel

v

Director-General, Department of Commerce & Ors

Judgment

1 BEAZLEY JA:

Introduction

2 On 25 September 2003, the second respondent, Robert Cianfrano, made an application to the Department of Commerce and the Department of Public Works and Services under the Freedom Of Information Act 1989 (the FOI Act). The documents sought related to land known as Flemington Markets, at the time of sale to a private company known as Sydney Markets Limited (Sydney Markets). Access to 1,241 documents was granted. Access to a further 1,066 documents was refused.

3 Upon an application for review filed by Mr Cianfrano in the Administrative Decisions Tribunal (the Tribunal), O’Connor J, President of the Tribunal, ordered access be given to some of those documents for which the Director-General had continued to claim exemption: Cianfrano v Director-General, Department of Commerce [2005] NSWADT 282. During the course of that hearing, a question arose as to the sufficiency of the search undertaken by the Director-General of the Department of Commerce’s documents. That question was stood over for separate determination.

4 At a second hearing to determine this question, the Director-General disputed the Tribunal’s jurisdiction to determine sufficiency of search: see the decision of O’Connor J in Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195. That question remains at the heart of the issue in the proceedings in this Court, which have been brought pursuant to an order made by the Appeal Panel of the Tribunal under s 118 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), referring a question of law for the opinion of the Court.

5 Section 118 of the ADT Act provides that an Appeal Panel, determining an appeal under Pt 1 of Ch 7, may refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court. On 24 August 2007, in circumstances I explain below, the Appeal Panel made an order referring the following question for the opinion of the Court:

FOI Act 1989

6 The procedural aspects of the referral to this Court were initially founded in a degree of uncertainty and inadequacy. Some of these matters are more important than others and in the end, none are determinative of the appeal. However, certain of the procedural aspects call for comment.

7 The first procedural matter to which reference should be made is that the respondents acknowledge that there has been no express notification under s 28(1)(b) of the FOI Act that the Department of Commerce (the Department) did not hold a document. The only document that could answer the description of a notification under s 28(1) is a letter from the Director-General to Mr Cianfrano dated 16 November 2004, which was the Director-General’s initial response to the FOI Act application, stating relevantly, that:

“I …, Director-general, have determined that you be granted partial access to some information and that you be refused access to some other information which matched the scope of your application. I have enclosed 16 ‘Schedules of Access to Discovered Documents’ detailing the documents and information to which access is refused.”

8 The Tribunal has not decided whether that letter constitutes a notification for the purposes of s 28(1)(b). Counsel for the Director-General indicated that no decision had been made, because it was assumed that once a question had been referred to the Court under s 118, the Tribunal was not to proceed further with the matter until the question referred had been determined: see s 118(3). In my opinion, s 118(3) does not operate to prevent the Tribunal from determining whether the letter of 16 November 2004 was a notification under s 28(1)(b). However, as the parties wished to have the matter determined on this basis, I will assume the letter is a notification under s 28(1)(b), namely, that it was written notice that the agency did not hold documents specified in the application, other than those to which it agreed to grant or refuse access.

9 The second matter, which is of some importance, is that the proceedings in the Supreme Court were initiated by letter without regard to procedural formalities. The initial referral was by letter dated 24 August 2006 from the Registrar of the Tribunal to the Registrar of the Supreme Court, stating that an order referring two questions of law for the opinion of the Court (the referral order) had been made. That letter caused a listing of the matter in the Supreme Court’s Administrative Law List before the Duty Judge, Hall J, on 29 January 2007.

10 The power to refer a question of law to the Supreme Court for the opinion of the Court is conferred on the Appeal Panel of the Tribunal, not on an individual member of the Tribunal or Appeal Panel. A question arose before Hall J as to whether the order had been made by a Deputy President of the Tribunal alone, or by the Appeal Panel. His Honour held, at [56], that the referral order had been made by a Deputy President alone, and therefore was not a referral under s 118 of the ADT Act: Director-General, Department of Commerce v Cianfrano [2007] NSWSC 849.

11 A further question arose in the proceedings before Hall J as to whether the matter was properly assigned to the Court of Appeal pursuant to the provisions of s 48 of the Supreme Court Act 1970 (the Supreme Court Act). Hall J recorded his opinion, at [58], that if an order was properly made under s 118 of the ADT Act, the matter would fall within the terms of s 48(2)(e) of the Supreme Court Act and, in his Honour’s opinion, was a question that would be appropriate for hearing by the Court of Appeal. The correctness of this opinion was not challenged and I have not considered it necessary to divert any judicial attention to dealing with this question. The matter is before the Court and it has jurisdiction to deal with the matter.

12 Following Hall J’s decision, on 24 August 2007, the Appeal Panel of the Tribunal made an order referring the question of law for the opinion of the Court. (Two questions of law had been initially referred to the Court: see decision of Hall J at [1]. On the new order for referral, only the second of the two questions was referred.) In referring the question of law to the Court, the Appeal Panel once again engaged an administrative process, with the Registrar of the Tribunal writing to the Registrar of the Court of Appeal, informing him that the order for referral had been made by the Appeal Panel and forwarding the referral to him. That referral was listed for hearing before this Court on 29 January 2008. This was procedurally deficient, Pt 6 Div 8 of the Uniform Civil Procedure Rules 2005 (the UCPR) requiring a referral by the Tribunal to be by way of special case. Part 6, Div 8, r 6.35 requires that the Tribunal be a party to the proceedings.

13 During the course of the hearing in this Court, the question of the proper constitution of the proceedings was raised and the Court directed the Department to file a summons and special case by 15 March 2008, in accordance with Pt 6 Div 8. The Court nonetheless proceeded with the hearing of the matter and gave the parties liberty to file short additional submissions once the summons and special case had been filed and served. Those directions were complied with.

14 Basten JA, at [90], has remarked upon the anomalous nature of r 6.35. I share his Honour’s view. The purpose behind the rule is unclear. The existence of a power in an inferior court or tribunal to refer a question of law to the Court for determination has long existed. The stated case procedure on a question of law from a magistrate was the typical example. It is a statutorily conferred right that has no common law antecedent or counterpart: see Frost v Amaca Pty Ltd [2004] NSWCA 358; (2004) 61 NSWLR 159 at 165 [29]. See also Badgery v Murphy (1887) 4 WN (NSW) 85 at 86; Holmes v Angwin [1906] HCA 64; (1906) 4 CLR 297 at 304 per Griffiths CJ; Atkinson v United States of America Government [1971] AC 197; [1969] 3 All ER 1317.

15 Section 118 of the ADT Act provides the necessary power of referral in this case so that there is no question that the Court is properly seised of the matter (the deficiencies found by Hall J having been attended to). However, the matter to which I wish to draw attention is the procedural one to which I have adverted. Part 6, r 6.35 of the UCPR provides that the proceedings in respect of which a question of law is referred by the Tribunal, must be commenced by an originating process naming the referring body as the plaintiff. This was not done until rectified pursuant to the directions given by this Court.

16 Having said that, and as already indicated, this requirement seems anomalous and it is difficult to discern why there is such a requirement. The process is that which previously applied in respect of a stated case from an external tribunal: see Supreme Court Rules 1970 Pt 32. One possible reason for the difference may be that in traditional form, a stated case followed a determination by an inferior court or tribunal, whereas s 118 and other similar legislative provisions enable the referral of a question of law prior to any determination by that body. However, that does not explain why the referring body must be the plaintiff in the proceedings. It cannot be so as to make the Court’s determination binding on the Tribunal, as is necessary when prerogative relief is sought against an inferior court or a tribunal, as provision is made in s 118(3)(b) to achieve that effect. That subsection provides that the Appeal Panel is not

“… to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.”

This may be a matter where the rules require some rationalisation.

The special case

17 On 14 March 2008, the summons and special case was filed in compliance with the Court’s direction, referring the question of law to this Court in the terms set out at [5] above. The special case effectively set out the history of the FOI Act application to which I have already referred.

18 Notwithstanding the terms of the question referred, the parties proceeded to argue the question as if the matter in issue was whether a Tribunal has jurisdiction to consider the adequacy of an agency’s search for documents. This articulation was accepted by the respondents as appropriately capturing the question that O’Connor J had determined. I will proceed to consider the matter on this basis.

The FOI Act

Applications and review of applications for access to documents

19 The FOI Act provides for an enforceable right of access to documents held by the government. Section 5(1)(a) provides that it is an object of the Act “to extend … the rights of the public … to obtain access to information held by the Government”. The means by which the objects of the Act are to be achieved include the conferral of a legally enforceable right by members of the public to be given access to documents: s 5(2)(b). That right is provided for in s 16(1):

“A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.”

agency

20 The right conferred by s 16 is exercised by a person making an application in writing for access to an agency’s documents, specifying that the application is made under the FOI Act and containing such information as is reasonably necessary for the document to be identified: ss 17(a); (b); and (d). An application fee may be payable: s 17(c). Sections 18(1) and (2) prescribe who is required to deal with an application. Section 18(3) provides that an application shall be dealt with as soon as practicable (or, in any case, within 21 days) after it is received.

21 Section 19 requires an agency to assist an applicant in circumstances where an application made under the FOI Act is either incomplete or wrongly directed. In the case of an application which does not contain sufficient information to enable a document to be identified, the agency shall not refuse to accept the application without first taking such steps as are reasonably practicable to assist the applicant to provide such information: s 19(1).

22 If the application is not able to be dealt with because the document is not held by the agency, but to its knowledge is held by another agency, or is held by the agency but is more closely related to the functions of another agency, the agency must take such steps as are reasonably practicable to assist the applicant to direct the application to the appropriate agency: s 19(2).

23 Section 20 makes provision for the transfer of an application to another agency. Sections 21 and 22 make provision for the payment of advance deposits should the agency so determine. Section 23 extends the operation of the FOI Act to computer-stored documents.

24 Sections 24 and 28 deal with the determination of an application for access to a document and for the notification to an applicant of its determination. Section 25 specifies the circumstances in which an agency may refuse access to a document. As these three sections are central to this Court’s determination, they are set out below.

“ 24 Determination of applications

(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given – any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall … be taken to have determined the application by refusing access to the document to which it relates.

25 Section 25(1) provides for the circumstances in which an agency may refuse access to a document. Those circumstances are:

“ 25 Refusal of access

(1) An agency may refuse access to a document:

(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, or

(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or

(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, or

(c) if it is a document that is usually available for purchase, or

(d) if it is a document that genuinely forms part of the library material held by the agency …”

26 An “exempt document” (see s 25(1)(a)) is defined in s 6 to mean a document referred to in Sch 1 of the FOI Act, or a document that contains matter relating to functions in relation to which a body or office is exempt from the operation of the FOI Act by virtue of s 9. Exempt documents include Cabinet documents, Executive Council documents and documents affecting law enforcement, public safety and counter-terrorism measures.

27 Section 26 (which is not relevant to the question before the Court) permits access to be deferred in certain circumstances.

28 Once having identified the documents and having made a determination as required by s 24, notice of that determination must be given to the applicant: s 28. That section provides:

“ 28 Notices of determination

(1) An agency shall cause written notice to be given to the applicant:

determination

not held

determination

(i) the reason for the deferral, and

(ii) in the case of a deferral under section 26 – the day on which the agency expects the document to be published, presented or submitted as referred to in that section, and

determination

(i) the reasons for the refusal, and

(ii) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based, and

(f) the amount of any charge for dealing with the application, together with:

(i) a statement of any amount payable by the applicant, or

(ii) a statement of any amount refundable to the applicant,

in relation to the charge, having regard to the sum of any advance deposits paid in respect of the application, and

determination

(i) the name and designation of the officer by whom the determination was made, and

Ombudsman Act 1974

(iii) the procedures to be followed for the purpose of exercising those rights,

and shall be accompanied by the amount of any refund referred to in paragraph (f) (ii).

29 It is apparent from ss 16-20 that the FOI Act is concerned with the grant of access to documents that an agency has in its possession. Sections 24 and 25 confirm that this is so. Section 24 is predicated upon there being documents in the possession of the agency (subject to the documents more readily being accessible through another agency: ss 19 and 20) that answer the description of the documents specified in the application for access. It thus becomes necessary for the agency to identify the documents in its possession that respond to the request. It is in respect of those identifiable documents that the agency makes a determination as to whether to give or to refuse access. To put the matter another way, the decision-making process envisaged by the FOI Act is based on documents that have been requested in an application. There is nothing in the Act which deals with or specifies how this necessary preliminary aspect of identification of the documents that have been requested is to be carried out.

Review of an agency’s determination

30 The FOI Act provides for a number of mechanisms of review of the various determinations that an agency may make, or is required to make, under the Act. Thus, there is provision for an internal review of an agency’s determination in respect of a freedom of information application: Pt 4; for external review by the Ombudsman: Pt 5 Div 1; and for external review by the Tribunal: Pt 5 Div 2. There is also a limited review by the Supreme Court on grounds not presently relevant: Pt 5 Div 3.

31 The jurisdiction that the Tribunal was asked to exercise in this case was under Pt 5 Div 2 of the FOI Act and in particular under s 53, which provides, relevantly:

“ 53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 … may apply to the Tribunal for a review of the determination.

…

(a) in the case of a determination that relates to an access application made by the person under section 17 … if the determination is to the effect that:

(i) an agency or Minister refuses to give the person access to a document, or

…

and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.”

Review by the Ombudsman

32 Reference should also be made at this stage both to the powers of the Ombudsman under the Ombudsman Act 1974 (the Ombudsman Act) and the power for external review by the Ombudsman provided for by Pt 5 Div 1 of the FOI Act. This is relevant, as the Director-General contends that in this case, that was the avenue of review available to Mr Cianfrano.

33 The Ombudsman has extensive powers under the Ombudsman Act in circumstances where it determines that the conduct of a public authority is relevantly: contrary to law; unreasonable; based wholly or partly on improper motives, irrelevant grounds or irrelevant considerations; or based wholly or partly on a mistake of law or fact: see s 26. Those powers include requiring a public authority to give a statement of information and to produce and/or to give documents to the Ombudsman: s 18. The Ombudsman also has the powers of a Royal Commissioner, with extensive powers of search and seizure: s 19; and has power to enter and inspect the premises of a public authority to inspect documents: s 20.

34 Section 52 of the FOI Act provides, relevantly:

“ 52 Review by the Ombudsman

(1) The conduct of any person or body in relation to a determination made by an agency under this Act may be the subject of a complaint, and may (subject to this section) be investigated by the Ombudsman, under the Ombudsman Act 1974 .

(c) while any relevant proceedings are before the Tribunal under Division 2.

…

Ombudsman Act 1974

(a) that the public release of the document concerned would, on balance, be in the public interest even though access has been duly refused because it is an exempt document, or

(b) that any general procedure of the agency in relation to dealing with applications made under this Act be changed to conform more closely to the objects and requirements of this Act.

Ombudsman Act 1974

35 Section 52A of the FOI Act provides for a redetermination of an FOI Act application following action by the Ombudsman as follows:

“(1)(c) in accordance with a recommendation given by the Ombudsman in accordance with that Act.”

Such review is to be conducted as if it were an internal review under Pt 4 of the FOI Act. The limitation on such review where the original decision is made by the principal officer of the agency does not apply: s 52A(2).

Mr Cianfrano’s application for external review

36 By application dated 2 December 2004, Mr Cianfrano exercised the rights of review provided by Pt 5 Div 2, s 53. O’Connor J, in determining that application, ordered that access be given to some documents to which the Department had refused Mr Cianfrano access. He adjourned the question of the sufficiency of the Director-General’s search for further consideration: Cianfrano v Director-General, Department of Commerce [2005] NSWADT 282.

37 On 27 June 2006, O’Connor J dismissed the Director-General’s objection to the Tribunal’s jurisdiction to hear and determine the question of the sufficiency of an agency’s search in respect of an FOI Act application: Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195. The Director-General appealed from that determination to an Appeal Panel. There has been no hearing of that appeal, other than for the purposes of having the question of law referred to this Court, as required by s 118(3) of the ADT Act.

38 Mr Cianfrano contends that O’Connor J was correct in his decision that the Tribunal had jurisdiction to determine whether the Director-General had carried out a sufficient search in response to his application under the FOI Act. O’Connor J observed that the jurisprudence of the various tribunals around Australia with jurisdiction to deal with similar FOI legislation, was to the effect that the Tribunal had jurisdiction to review the sufficiency of search undertaken by the agency. His Honour noted that approach had been endorsed by the decision of Hedigan J in Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443. In that decision, Hedigan J rejected an earlier line of authority in the Victorian Civil and Administrative Tribunal (the Victorian Tribunal) to the effect that it had no power to examine this question. O’Connor J also observed that the Tribunal had, for several years, acted upon the basis that it had jurisdiction to deal with an objection that an agency had not engaged in a sufficient search, adopting as correct the decision in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 on this issue.

39 It is convenient to turn to those two decisions before examining O’Connor J’s own reasoning.

Victoria Police v Burton

40 In Burton, Hedigan J was hearing an appeal from a costs order made by the Victorian Tribunal in review proceedings commenced by Mr Burton in respect of his application made under the Freedom of Information Act 1982 (Vic). Mr Burton sought access to documents allegedly held by the Victoria Police relating to allegations of environmental sabotage at Coode Island, upon which an environmental disaster had occurred. The Victoria Police had taken a narrow construction of its statutory obligation to provide access to its documents. This and other questions relating to access to the documents became the subject of an extended series of hearings before the Victorian Tribunal at the instance of Mr Burton.

41 During the course of one of its rulings, the Victorian Tribunal had directed that the Victoria Police was to undertake a search of its documents as it had been directed to do in an earlier Tribunal hearing. In giving that direction, the Victorian Tribunal had stated (as summarised at [18]):

did exist

42 The Victoria Police’s failure to undertake the search and the need for the Victorian Tribunal to enter into the disputation in respect of the search was taken into account by the Tribunal in the costs order it made. The Victoria Police argued before Hedigan J that there was no basis in the Freedom of Information Act (Vic) for the Tribunal to make an order relating to the sufficiency of search undertaken by an agency, the jurisdiction to deal with that question residing in the Ombudsman. The Tribunal had rejected this submission and had held that it would be contrary to the object and purpose of the legislation if it could not satisfy itself that the documents did not exist and could not be located, once that was put in issue by the applicant. The Victoria Police did not appeal from that determination. However, it appealed from the costs order made against it.

43 On the costs appeal, Hedigan J observed that the submission, that the Victorian Tribunal did not have jurisdiction to determine whether documents sought by the applicant existed or whether adequate searches had been made, was based upon an interpretation that s 52 of the FOI Act (Vic) only empowered the Tribunal to review a decision “refusing to grant access” to a document. Hedigan J, at [27], considered that a statement by an agency that a document did not exist “may amount to a refusal” (emphasis added) to produce documents. His Honour considered that in the circumstances of the case before him, the agency’s statement to that effect amounted to a refusal to produce documents.

44 As to the Tribunal’s jurisdiction to deal with the question whether the agency had undertaken an adequate search, Hedigan J said at [29]:

“… once the Tribunal was seized of the issue, its right to direct appropriate inquiries could not be subordinated to and fettered by the overlapping power in the Ombudsman, if he were called upon to exercise the powers … there is nothing in the Act to suggest that the Tribunal did not have the jurisdiction [to determine the question of sufficiency of search] which it decided it did have and did exercise.”

“It was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal … The mere assertion on behalf of the appellant that no such documents were in its possession or control could not strip the Tribunal of the power to consider the matter.”

45 O’Connor J, at [55], accepted that the approach adopted by Hedigan J was correct, notwithstanding the textual differences between the New South Wales and Victorian Acts. The Victorian legislation under s 50 provided that an applicant may apply to the Tribunal for a review of “a decision refusing to grant access to a document in accordance with a request”. Presumably the textual difference to which O’Connor J referred is in the words, “in accordance with a request”.

46 Leaving to one side whether the difference in the language provides a relevant point of distinction between the two legislative provisions, the real difficulty with reliance on Burton, as I explain more fully below, is what I might describe as ‘the assumption of jurisdiction’ made by Hedigan J, which O’Connor J accepted as correct. That is, his Honour assumed the Tribunal had jurisdiction because there was nothing in the Act to suggest otherwise.

Beesley v Commissioner of Police, New South Wales Police Service

47 In Beesley, the applicant had applied to the New South Wales Police Service for documents that related to him. The Police responded that the only document that it had concerning him was “one entry contained in the Computerised Operational Policing System”. Mr Beesley complained to the Ombudsman that the search had been insufficient. That complaint was rejected by the Ombudsman. There was no appeal from the Ombudsman’s decision. The Tribunal considered the matter before it on the basis that Mr Beesley was, in effect, seeking a right of review in respect of the Police Service’s response pursuant to s 53 of the FOI Act. A preliminary jurisdictional question arose as to whether:

“… a determination that no further documents are held by the agency is a ‘determination made by an agency or Minister under section 24’, and whether the applicant is ‘a person who is aggrieved by’ such a determination in terms of s 53(3)”: [4]

48 The reasoning of the Tribunal on that question is to be found in [8] and [9] of Judicial Member Smith’s reasons as follows:

“[8] In my opinion, it is significant that the determination provided for in s 24(1)(a) on the giving of access ‘to the document’ relates to ‘the document’ which is the subject of the application for access. The determination must address the whole ambit of the request, including all ‘documents’ identified as being its subject matter, i.e. including all documents which the applicant alleges to be ‘held’ by the agency regardless of whether this is in fact the case. It is then reasonable to construe the power to make a determination that ‘access to the document is … to be refused’, as encompassing a refusal on the ground that a document or additional documents within the terms of the request cannot be identified or located or that it or they have positively been found not to exist.

49 Smith JM, at [10], found no inconsistency in this construction of s 24(1) “by reason of the absence of express reference to this ground of refusal of access within the grounds listed in s 25(1)”. The Judicial Member considered that the opening words of s 25(1) indicated the section was not exhaustive of the grounds on which access can be refused. Rather, the Judicial Member considered that s 25(1) only addressed the grounds which might arise after documents covered by the application had been located. He concluded that s 25(1) “does not address the antecedent locating of documents identified in the request, and a determination flowing from a finding of ‘does not exist’ “.

50 Smith JM considered that the general language of s 28(2)(e) confirmed that a determination under s 24(1)(a) refusing access may be made on an implicit ground, additional to one expressly listed in s 25(1). He considered, at [12], that s 28(2)(e) confirmed that s 24(1) provided:

“… the source of power to make a determination which concludes decision-making on an application for access upon a finding that a document or additional documents identified in the application are not held by the agency. I do not find this implication excluded by the separate provision in s 28(1)(b) for a notice ‘of the fact that the agency does not hold such a document’. Such a separate notice may well be called for at a preliminary stages of decision-making, for example under s 19(2). For reasons indicated below, it would substantially distort the scheme of the Act to read into s 28(1)(b) an implication narrowing the ambit of the power of determination under s 24 and the review rights attaching thereto, by reading it as excluding from the s 24(1) power the making of all findings as to what documents are ‘held’ by an agency, including such a finding when it provides the operative ground for refusing an application for access in whole or part.”

51 Smith JM found, at [13], that the FOI Act (NSW) provided a procedure that necessarily entailed a duty in the Tribunal to make findings on what were the documents “held by the agency” as requested in the application. He considered that this duty was found within the general duty to determine the request for access within s 24(1). He considered, therefore, that:

“… [a] determination giving effect to the findings by refusing the application for access on the ground that a document or additional documents cannot be located therefore becomes a reviewable determination under s 53(1).”

52 Smith JM concluded that on an application for review of that determination, the Tribunal was required to consider on the evidence before it, whether the correct or preferable exercise of the s 24 power would be to refuse the request, or part of it, on the ground that a document “falling within its terms [is] not ‘held’ by the agency”. The onus for justifying such a conclusion was on the agency pursuant to s 61 of the FOI Act.

53 Smith JM observed that this approach to the interpretation of the legislation was supported by the decision in Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 at 782-783 (ACT Administrative Appeals Tribunal per Professor LJ Curtis). In that decision, Professor Curtis stated at [11]-[13]:

“[11] … In my view, a failure to grant access in accordance with a request must be taken to be a refusal to grant access as required by the Act …

[12] A statement by an agency that it cannot locate a document in its files amounts to a statement that the document is not in the possession of the agency. For the purposes of the Act, an agency must be taken not to possess documents it cannot find. A document it does not possess is not a document of the agency. A statement that it cannot find a document must be taken, for the purposes of the Act, to be a refusal to give access to the document . The task of the Tribunal is to ascertain whether that is the correct decision. The Tribunal must be satisfied that reasonable attempts have been made to find the document before it can be satisfied that the document is not a document of the agency and that the agency was therefore correct in not giving access to it.

Macquarie Dictionary

O’Connor J’s decision

54 In this case, O’Connor J accepted the reasoning process of Smith JM on the question of jurisdiction. He said at [63]:

on occasions

to proof

“Section 28(1)(b) fits neatly into the scheme of the Act when understood in this way. Section 28(1)(b) deals with the circumstance where the request asks for documents that it is not in the agency’s power to disclose. That situation arises when a document the subject of a request is not ‘held’ by the agency. The applicant can, of course, contest such a notice through a complaint to the Ombudsman.”

55 It is apparent from O’Connor J’s formal conclusion in the matter, at [65] ff, that it is not in every case where an agency asserts that documents do not exist, or that it does not hold a document, that the Tribunal has jurisdiction to determine the sufficiency of search. Rather, his Honour stated:

Raising of a section 24(2) question

Burton

56 It is also apparent that his Honour was concerned that an agency might issue a bare statement that it did not hold documents, or that documents did not exist. His Honour considered that an applicant was entitled to put such a statement in issue on the basis contemplated in s 24(2) and that any other interpretation of the Act would be perverse. His Honour added, at [67], that s 28(1)(b) “is only concerned with the situation where documents are, as a matter of fact, not held by the agency”. It was central to his Honour’s reasoning that the Tribunal had the jurisdiction to make that finding of fact. (It would seem that his Honour would include in this interpretation of s 28(1)(b) documents that were not held by the agency because they did not exist.)

57 It is also apparent from O’Connor J’s reasons that he was concerned about the practical way in which a s 24(2) issue might arise. In particular, his Honour, at [69], observed that a s 24(2) issue did not arise merely by an assertion that there had been non-compliance of the kind to which s 24(2) is directed. His Honour considered that there may be occasions where it would be appropriate for the Tribunal to refer the matter to the Ombudsman for review: see ADT Act s 39. That would be the case where, for example, access had been given to a large number of documents but an applicant was asserting that other documents existed. His Honour observed, at [73], that the Tribunal was not bound to refer a matter to the Ombudsman in such circumstances “if it is seized of a s 24(2) point”. It followed that if the Tribunal was satisfied that a s 24(2) question had been raised, it could give directions to resolve the issue “whether a situation of deemed refusal has arisen”. His Honour considered, at [74], that these directions may include directions as to the sufficiency or adequacy of the search.

Is the reasoning in

Beesley

correct?

58 I have difficulty with Smith JM’s reasoning in Beesley. The FOI Act is an Act that provides a statutory right to access documents. Access can only be granted to a document that exists and is held by the agency to which the application is made. An agency can not grant access to a document that does not exist. The notion itself is nonsensical. The converse is also true: an agency cannot refuse access to a document that does not exist. It can, of course, inform an applicant that a document does not exist, or that it does not have such a document, but that is a different matter altogether. It follows therefore, as a matter of logic, that the specification of a non-existent document in an application can have no statutory consequence.

59 It is not correct, therefore, to construe a statement by an agency that a document does not exist, or that it does not have a document, as a refusal to give access to a document. Nor, as Smith JM concluded, could the Tribunal order that access to a document was to be refused on the basis that the document was not held by the agency. There is nothing in the words of s 24 that has such an effect. I deal further with this question below.

60 That this is the operation of s 24 is confirmed (rather than denied, as Smith JM considered was the case) by s 25.

61 Section 25 complements s 24. Section 24 governs an agency’s responsibility and obligations under the FOI Act after it has received an application. The right to access is a statutorily conferred right and an agency’s obligations relating to granting access and the circumstances in which it may refuse access are also statutorily prescribed. Leaving aside the situation where an agency fails to determine an application within 21 days, giving rise to a deemed refusal: s 24(2); an agency is statutorily required to make a determination in relation to the application. There are, relevantly for present purposes, only two available determinations that may be made: to grant access or to refuse access. A determination to refuse access may be made on one or more of the bases specified in s 25. The section, properly construed, does not permit other circumstances to be taken into account.

62 Smith JM did not appear to recognise the complementary nature of ss 24 and 25. His reference, at [10] of his determination, to the opening words of s 25 is clearly a reference to the use of the word “may”: “an agency may refuse access to a document” on the grounds stated in the subsection. It is apparent that Smith JM has construed s 25(1) as a non-exhaustive provision. I do not consider that to be the correct construction of the section. The word “may” in s 25(1) is used to specify the bases upon which access to a document may be refused. It is not a provision that specifies certain bases upon which an agency may determine to refuse access, but which also permits the agency to refuse access on other and in particular, other unspecified grounds: see generally Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106. Having construed “may” in a non-exhaustive way, Smith JM then found that there could be another basis upon which access to documents could be refused, namely, that documents could not be identified or located, or had been found positively not to exist. As these grounds do not find expression in s 24, they must, on Smith JM’s approach, be read or implied into the section.

63 Words may be read into a statute in circumstances where not to do so would mean that the statutory purpose of the legislation will be defeated. In Jones v Wrotham Park Settled Estates [1980] AC 74; [1974] 1 All ER 286 at 289, Lord Diplock said that three conditions must be fulfilled before this approach can be taken. McHugh JA summarised these conditions in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423:

“First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”

“Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object.“

64 Relevantly, the FOI Act provides an enforceable right to access to government documents: see ss 5 and 16. That right will not be fully achieved if an agency does not adequately search for documents that are subject of an application for access. However, the enforceable right given by the Act is made enforceable by way of varying levels of review of an agency’s determination as to whether to grant access to documents: s 24(1)(a).

65 If the implication found by Smith JM was to be made, it would mean providing for a ‘deemed refusal’ to grant access to documents that the legislature has not articulated. It would not only permit the Tribunal to determine whether an agency has a document or whether such a document existed, it would permit the Tribunal to enquire into and make a determination as to the adequacy of an agency’s search. Sections 24 and 25, however, are directed to the making of a determination. They are not directed to conduct preceding a determination, such as a failure to make a sufficient search. In my opinion, it cannot be said that Parliament inadvertently overlooked the possibility that an agency might make an insufficient search, or that it inadvertently overlooked deeming such a failure to be a refusal to grant access to documents. The object and purpose of the Act does not require that conclusion and the express terms of the section do not support any implication of such a ground. Indeed, the language of ss 24 and 25 point in the other direction. To the extent that Parliament considered it appropriate to provide a remedy for such conduct, it provided for it in Pt 5 of the FOI Act: see Div 1, “Review by the Ombudsman”.

66 Section 25(1)(a1) requires separate comment, as it is in terms different from the other provisions by s25 (1). It refers to the circumstances where

in dealing with

67 As a matter of ordinary language, subs (a1) would include the work involved in locating documents, as well as the work involved in making the determination as to whether access would be given or refused to each document specified or identified in the FOI Act application. To that extent, s 25 operates notwithstanding that documents have not been located. However, a response in terms of s 25(1)(a1) does not raise any question of sufficiency of search. Rather, it is directed to the circumstances prior to search, that is, it permits a response where no search has been made in circumstances where to deal with the application, including searching for documents, the agency’s resources would be substantially or unreasonably diverted. No reliance was placed on s 25(1)(a1) in this case.

68 The other sections of the FOI Act support this conclusion. The terms of s 28 are consistent and, I consider, only consistent with the construction I have given to ss 24 and 25, that is, that a further basis of review is not to be read into the section. Section 28 is concerned with giving a notification of a determination. It is not concerned with a notification or advice or information as to the search that was conducted by the agency to ascertain whether it has documents or knows whether or not documents exist. Section 53 provides for the review of a determination. The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in s 53(1) that draws such conduct within the Tribunal’s review function. A statement that an agency does not have a document is not a ‘determination’ within the meaning of s 24(1). Accordingly, the bases for the implication of an additional right of review for the purposes of s 24, in my opinion, do not exist and Smith JM was incorrect in finding that there was such an implication.

69 The view that I have taken as to the extent of the review available under s 53(1) is supported by s 53(3). That section specifies the circumstances in which a party is ‘aggrieved’ for the purposes of making an application. The subsection, which is exhaustive in its terms, makes no reference to a person being aggrieved because an agency has failed to make a satisfactory or adequate search.

70 Section 58 is also relevant in construing the right of review of a determination under s 24. Section 58 provides that if as a result of a review application, the Tribunal is of the opinion that there has been a failure on the part of an officer of an agency to exercise in good faith a function conferred or imposed by the FOI Act, the Tribunal may bring the matter to the attention of the responsible Minister for the agency. An officer of an agency who bona fide fails to undertake an adequate search may act improperly for the purposes of s 58. The right to report improper conduct is a very different process than that urged in this case, namely, that the Tribunal may, as a matter of jurisdiction, enquire into the question of the sufficiency of search carried out by an agency, and tells against there being any such jurisdiction in the Tribunal.

71 Finally, the relief available in the Tribunal does not accommodate a jurisdiction to review the sufficiency of a search in respect of an FOI Act application. In particular, there is no power in the Tribunal to make an order in the form of an injunction or a mandamus, such as might be necessary to make any such jurisdiction enforceable. Nor do the procedural processes of the Tribunal advance the position in favour of finding jurisdiction in the Tribunal to do so. The procedure of the Tribunal is provided for in Chapter 6 of the ADT Act. Pursuant to s 84, the Registrar of the Tribunal may issue a summons for the purpose of requiring a person to attend and produce documents: s 84(3)(b). However, if a document cannot be identified, s 84 cannot be utilised. If a document is identified but does not exist, a non-return on the summons could not be construed as a failure to produce the document. The procedure of the Tribunal is otherwise within its own determination: s 73. Section 90 enables the Tribunal to make rules for its practice and procedure. There are no relevant rules affecting the question under consideration, which, in any event, is a question of jurisdiction, not of practice and procedure. As Mason P noted in Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, at 132, the “jurisdiction of a court is not to be confused with its powers”.

72 I do not find Smith JM’s reliance on Smedley any more satisfying. As Basten JA notes at [119], there is an unexplained elision between the statement at [12] that a “document [an agency] does not possess is not a document of the agency” and the further comment that a “statement that [an agency] cannot find a document must be taken, for the purposes of the Act, to be a refusal to give access to the document”. As I have explained, there is nothing in the express words of the Act to that effect and the principles of statutory construction relating to the implication of words do not assist.

73 The error in Beesley, as I see it therefore, is that the Tribunal construed s 24 in a way that enabled it to exercise jurisdiction by the implication of a ground of review for which the Parliament made no provision. By approaching the construction of the section in that way, the Tribunal ignored the plain words of ss 24 and 25 and construed a statement by an agency that it does not have a document as amounting to a refusal to grant access to it, thereby giving the Tribunal jurisdiction to review that ‘determination’.

74 The approach taken by Smith JM in Beesley and by O’Connor J in this case, Cianfrano v Director General, Department of Commerce (No. 2) [2006] NSWADT 195, assumed that the Tribunal had jurisdiction to review a determination made by an agency. This is the same assumption made by Hedigan J in Victoria Police v Burton. It is apparent that in each of these decisions, the Court or Tribunal was concerned that the enforceable right conferred by the FOI Act could be thwarted, wholly or partially, by an agency failing to undertake a proper or adequate search for documents. In each decision, therefore, it was assumed that the jurisdiction to review encompassed that process. However, in order to bring such a failure within the terms of the Act, it became necessary to label such a failure of process as something that it was not, namely, as being tantamount to a determination to refuse access to a document.

Conclusion

75 The question that was referred to the Court was whether a notification under s 28(1)(b) of the FOI Act that an agency does not have a document is “a determination” that the Tribunal has jurisdiction to review. As I have explained, the matter before this Court was argued as if the question was whether the Tribunal had jurisdiction to determine the sufficiency of search by an agency in respect of an application for access to documents.

76 There is nothing in the FOI Act that confers jurisdiction to conduct a review of, or enquiry into, the sufficiency of an agency’s search for documents. I agree with Basten JA that the appropriate recourse to a person dissatisfied with an agency’s response that a document does not exist or is not held by the agency is to seek prerogative relief, or relief via the Ombudsman Act.

77 The question referred to the Court was not happily framed. However, in the manner in which the matter was argued before the Court, the question should be answered as proposed by Basten JA.

78 GILES JA: I have had the benefit of reading the judgments of Beazley JA and Basten JA in draft. I do not understand their Honours to differ in their paths to the outcome, or materially in the expression of their reasons. Accordingly, I agree with both, and with the answer to the question proposed by Basten JA.

79 BASTEN JA: This matter concerns an application made by Mr Robert Cianfrano (“the Respondent”) under the Freedom of Information Act 1989 (NSW) (the “FOI Act”). In response to that application, the Director-General located and considered more than 3,000 documents which were apparently covered by the Respondent’s request. These were apparently reduced to some 2,300, access being granted to some 1,241 and refused in whole or in part to 1,066 documents: Special Case, par 9. The decisions to give or refuse access to each document constituted collectively a determination of the application for the purposes of s 24 of the FOI Act. (It is not disputed that an application and a determination can relate to numerous documents or classes of documents and neither is restricted to “the document … identified”: s 17.)

80 Pursuant to s 53(3) of the FOI Act, the Respondent was a person aggrieved by the determination to the extent that the Director-General refused access to any document: s 53(3)(a)(i). To that extent he was entitled to, and did, apply to the Administrative Decisions Tribunal (“the Tribunal”) as constituted by the Administrative Decisions Tribunal Act 1997 (NSW) (“the ADT Act”) for a review of the determination to refuse access to specific documents. To the extent that the Respondent sought to review decisions to refuse access, that review was duly carried out by the Tribunal and no issue presently arises in relation to it. However, the Respondent also asserted before the Tribunal that the Department held documents which had not been dealt with by the determination of the Director-General. The issue, as stated by O’Connor DCJ, President of the Tribunal, was as follows (see Cianfrano v Director General, Department of Commerce (No. 2) [2006] NSWADT 195 at [2]):

“The applicant contends that the agency’s reply to his access application did not identify all documents relevant to his request. He has asked the Tribunal to examine the sufficiency of the agency’s search. The agency objects that the Tribunal has no jurisdiction to deal with that issue.”

81 The Tribunal upheld its jurisdiction and dismissed the objection: at [80]. The heart of the reasons of O’Connor DCJ appeared at [65]-[67] in the following terms:

Raising of a section 24(2) question

Burton

66 Were the agency’s submissions in the present case to be accepted, the Tribunal would be deprived of any capacity to go behind a mere statement by the agency that it does not hold any further documents.

67 An applicant is entitled to put such a statement in issue on the basis contemplated by s 24(2). To interpret the Act otherwise would result in a perversity. An agency could issue a token determination relating to some only of the documents identified by the request, and remain silent as to the other documents. Section 28(1)(b) is only concerned with the situation where documents are, as a matter of fact, not held by the agency.”

82 From this decision, the Director-General sought to appeal to the Appeal Panel of the Tribunal. On 24 August 2007 the Appeal Panel stated a question in the following terms for the opinion of the Court:

Freedom of Information Act

83 The question appears to have derived from errors of law identified by the Director-General in his notice of appeal to the Appeal Panel dated 25 July 2006. Originally a second question had been asked, but after the questions were considered by Hall J in the Common Law Division, and the matter was returned to the Tribunal for further consideration, the only question included in the subsequent referral was that noted above.

Jurisdictional issues: Supreme Court

84 As Hall J noted in a judgment dated 8 August 2007, no originating process had been filed in the Supreme Court: Director-General, Department of Commerce v Cianfrano [2007] NSWSC 849 at [1]. The primary issue dealt with in that judgment was whether the matter should properly have been before a judge in a Division, or whether, pursuant to s 48 of the Supreme Court Act, it was assigned to this Court. Generally speaking, s 48 has been understood as assigning to this Court matters where the tribunal below has been constituted by a judicial officer falling within one of the categories defined in s 48 namely, for present purposes, a District Court judge. Proceedings seeking to review a decision of a specified tribunal and by way of a case stated by a specified tribunal are assigned to this Court: s 48(2)(g) and (h). Similarly, proceedings for determining by declaration or otherwise any matter concerning the powers of such a tribunal are assigned to this Court: s 48(2)(e). A specified tribunal includes “a body of persons having amongst its number a judge or member, being a body functioning or purporting to function under any Act giving power to a body having amongst its number a judge or member, whether as judge or member or as a designated person …”: s 48(1)(a)(vii).

85 The proceedings came to the Court from the Appeal Panel of the Tribunal which, as constituted for hearing the appeal brought by the Director-General, did not include a judge or member of a relevant court or commission identified in s 48(1)(a). Accordingly, it was initially thought appropriate to take the matter to a single judge of the Court in the Common Law Division, in accordance with such authorities as Daykin v SAS Trustee Corporation [2001] NSWSC 58; 51 NSWLR 328, approved by this Court in Puglisi v Administrative Decisions Tribunal of NSW [2001] NSWCA 298; 52 NSWLR 350 at [1] (Heydon JA, Foster AJA and Studdert J agreeing). Hall J held that because the Appeal Panel proceedings were themselves proceedings from the decision of a judge of the District Court constituting the Tribunal at first instance, the matter was assigned to this Court. Whether that conclusion was correct or not, is not presently in issue and need not be addressed further.

86 Secondly, his Honour considered that the order for referral by the Appeal Panel had been invalidly made by Deputy President Hennessy sitting alone. Although a presidential judicial member of the Tribunal had power to exercise an “interlocutory function”, his Honour determined that the referral did not constitute such a function: c.f. Administrative Decisions Tribunal Act 1997 (NSW) (“ADT Act”), s 24A. That conclusion was not disputed by either party and the matter was accordingly remitted to the Tribunal for reconsideration of the referral. When the Appeal Panel made a further order on 24 August 2007, only the present question was the subject of referral, as a question of law arising in the appeal.

87 An order of the Tribunal cannot commence proceedings in this Court. Although Hall J had noted in the earlier proceedings the absence of an originating process, no further comment was made about it in those proceedings, perhaps because the Court held that the referral had miscarried at an earlier point in time. The same procedural error originally afflicted the current proceedings; the Director-General was ordered, at the hearing of the appeal, to take the necessary steps for the commencement of proceedings by summons and the preparation of a “special case” pursuant to the Uniform Civil Procedure Rules, r 6.35.

88 The importance of complying with rules relating to the preparation of a case for referral is not to be underestimated. The jurisdiction conferred on this Court pursuant to s 118(2) of the ADT Act is limited to hearing and determining “any question of law referred to it under this section”. Such a power does not permit the Court to determine questions of fact or to draw factual inferences: see Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381 (Isaacs J); The Queen v Rigby (1956) 100 CLR 146 at 150-151 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ) and Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 58 (Gibbs J, Stephen, Mason, Murphy and Aickin JJ agreeing), referred to in Sasterawan v Morris [2007] NSWCCA 185 at [10]. As further stated in Sasterawan at [11]:

The Queen v Rigby

Dennis v Watt

89 There may be cases where the powers of the Court are not limited to determining questions of law: see Zukerman v Law Society of NSW (1986) 5 NSWLR 292 at 297 (McHugh JA). In such cases the Court will have power to decide facts and may be entitled to operate in accordance with the expanded powers found in UCPR rr 6.39 and 6.40. Whether those rules have application in a case such as the present, where the jurisdiction of the Court is limited by statute to determining a question of law, may be doubted, but need not be decided.

Special case

90 On 14 March 2008 the Director-General filed a summons in this Court annexing a “stated case” to which were attached the volume of documents which had previously been filed in the Court, which was identified as the “composite appeal book”. The summons identified the “appellant” as the “Administrative Decisions Tribunal Appeal Panel”. However, the proceedings were not commenced by notice of appeal but, correctly, by summons, being proceedings other than appeal proceedings: see UCPR r 51.45(1). The Director-General, being the moving party in this Court, should have been identified as the “applicant”, in accordance with Part 51. Unfortunately, and somewhat anomalously, r 6.35, which appears in Division 8 of Part 6 dealing with “referred questions of law and stated cases” requires that the “plaintiff” must be the “referring body” which, under s 118, was indeed the Appeal Panel. Not only is there internal inconsistency between the rules, but r 6.35 might be thought anomalous in requiring the tribunal which refers a question or states a case to be identified as the moving party in the Supreme Court. In accordance with well-understood principle, the tribunal should generally play no part in this Court and, unless an order is sought against it, would not normally be joined as a party: see generally The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35-36 and Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [12].

91 The special case set out in some further detail the procedural steps which preceded the referral to this Court. In particular, it confirmed the specific matter which gave rise to the referral, namely a contention raised by the Respondent between 20 December 2004 and 2 March 2005 that the Director-General “had failed to identify all documents held by the Department which were encompassed by the access application for the purpose of determining the access application …, and … requested that the Tribunal examine the sufficiency of the Department’s search for documents encompassed by the access application”: Special Case, par 12.

92 In addition to regularising the procedures, the summons indicated that the Tribunal did not seek costs and the special case indicated that whilst the Director-General had agreed to pay such court fees as might be required, none of the respondents sought an order for costs in the proceedings in this Court.

Nature of question referred

93 It may be that the question stated in the present proceedings was a true question of law which could be determined in the absence of any precise statement of facts. Indeed, the question was asked at a stage in the proceedings before the Appeal Panel where no findings of fact had been made. Nevertheless, the background to the question, including the manner in which it arose is of importance to understanding its terms.

94 Argument proceeded on the appeal on the basis that the parties were entitled to refer to the determination of the Director-General, the decision of the President of the Tribunal and the notice of appeal therefrom. That provided some assistance to the Court in understanding the question as formulated by the Appeal Panel. Thus it became apparent that the form of the question was derived from the notice of appeal to the Appeal Panel filed by the Director-General.

95 However, the form of the question appears to be based on a misconception. The basis for an application to review a determination is to be found in s 53 of the FOI Act and it is limited, relevantly for present purposes, to “a determination … under s 24”: s 53(1). Section 24 identifies four possible determinations: two relate to the giving or refusal of access to a document and two relate to charges payable. Giving access can only be achieved by an express determination by the agency; refusal can result either from an express determination to that effect or from a failure to determine an application within 21 days: s 24(1)(a) and (2). Section 28 requires that an agency give notice to an applicant stating its determination of the application. Section 28(1)(b) requires that, “if the application relates to a document that is not held by the agency” notice be given “of the fact that the agency does not hold such a document”. Although the matter is not entirely clear, paragraph (b) is probably intended to relate to a transfer of an application to another agency; thus, pursuant to s 20, one agency may transfer an application to another agency “if the document to which it relates … is not held by the firstmentioned agency …”.

96 Reliance on s 28(1)(b) in this context is somewhat obscure: the Director-General in fact made a determination in relation to the application, being a determination which was notified in writing by letter dated 16 November 2004. To the extent to which that determination refused access to documents, the Respondent became a person aggrieved by the determination for the purposes of s 53(3) and thus entitled to make an application to the Tribunal for review of the determination under s 53(1). The determination is not the notification nor is the notification the determination. The determination is the matter which must be notified. Further, not all determinations will be notified: the obligation to give notice of a determination can only relate to a determination which has been made, presumably under s 24(1). Where, 21 days after the application is provided to the agency, no determination has been notified, an applicant may well be entitled to rely upon s 24(2) as a basis for review of a deemed determination refusing access to the document in question. It is unlikely that a failure to determine an application would be the subject of written notification or indeed that s 28(1) was intended to address such a deemed determination. That conclusion is supported by the fact that s 28(2)(a) requires specification in the notice of the day on which the determination was made and that par (e) requires that a refusal be accompanied by reasons for the refusal – something which would not apply to a deemed determination. The answer to the question must reflect these anomalies.

Jurisdiction and powers of ADT

97 The logic underlying the question appears to be that a notification in relation to specified documents constituted, at least by inference, a notification that the agency held no other documents covered by the application. It is that implied notification which appears to be the basis upon which, on one view, an applicant could seek to challenge a decision which did not refer to particular documents. However, even if that analysis is correct, it does not avail the Respondent in the present case. What must be reviewed is a determination under s 24 and such a determination can only be made in relation to “a document” with respect to which the agency is able to give access because it is an agency document, namely one held by the agency.

98 The right to seek review in the ADT derives from s 53(1) of the FOI Act, which states:

“53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency … under section 24 … may apply to the Tribunal for a review of the determination.”

99 Section 24 (and relevant parts of s 25) provide:

24 Determination of applications

(1) After considering an application for access to a document, an agency shall determine:

(c) any charge payable for dealing with the application.

25 Refusal of access

(1) An agency may refuse access to a document:

(a) if it is an exempt document, or

(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 function … .”

100 The other parts of s 25 effectively assume the existence and identification of a particular document held by the agency, with a qualified exception in relation to sub-s (5) which requires the agency to assist the applicant to amend the application before refusing access pursuant to sub-s (1)(a1).

101 In a legal sense, s 24 contains an implied (if not express) obligation that an agency consider an application for access to a document. However the application permitted under s 17 must be an application “for access to an agency’s document”. The term “agency’s document” is defined to mean “a document that is held by the agency”: s 6(1). It would seem to follow as a matter of logic that a valid application cannot be made in relation to a document which is not an agency’s document in the sense of being held by the agency. However, s 20 is inconsistent with an overly strict application of the definition: it permits the application to be transferred to another agency where the document is known by the first agency to be held by the other agency.

102 Furthermore, in a practical sense, there will often be circumstances in which an applicant will have difficulty in describing the document (or class of documents) sufficiently to enable an agency to identify it. In that circumstance, the agency is required to take reasonable steps to assist the applicant to provide information which would allow identification of the document. However, s 19 is poorly drafted. It envisages circumstances where an agency is unable to identify the document, circumstances where the document is held by another agency, and circumstances where the document is held by the agency but is more closely related to the functions of another agency. In the first case, s 19(1) implies that, if the document cannot be identified, the agency may “refuse to accept” the application. In relation to the second two categories, s 19(2) implies that the agency would be “unable to deal with” an application where it did not hold the document or where it held the document but the document was more closely related to the functions of another agency. In the second case, the inability may derive from the fact that the agency which holds the document is in a practical sense unable to make the necessary assessment as to whether access should be provided to the document. In any event, it is clear that in such circumstances s 19 does not anticipate that the application for access will be determined either by a refusal or a grant of access: it anticipates that the application may not be accepted or may not be capable of being dealt with.

103 Concisely stated, the FOI Act envisages that an agency may need to take one or more steps before it can determine whether to refuse or grant access to a document. Those steps must include at least the attempted identification of a document (or possibly documents) falling within the terms of the application, which are documents held by the agency. The formation of a view by a relevant officer that certain documents and no others are held by the agency and fall within the terms of the application, is not a “determination” for the purposes of s 24(1). It is an aspect of the consideration of the application which must be undertaken before such a determination is made.

104 Sections 21 and 22 envisage that an agency may well incur costs in “dealing with an application”. The agency may request that the applicant pay anticipated costs in advance. It is reasonable to assume that such costs will include the costs of searching for and identifying documents to which the application relates. A decision that a particular charge is payable for dealing with the application is a step separate from deciding whether or not to give access, but is a reviewable determination under s 24(1) because it is expressly identified as such.

105 There is no explicit statement imposing an obligation on an agency to search for documents the subject of an application for access. Nevertheless, there is implicit in s 24 (and other sections) a requirement that the agency will consider an application and that it will search for documents which might fall within its terms. Such an implicit statutory obligation may also be derived from the statement of the primary object of the FOI Act, which is to confer rights on the public to obtain access to information held by the government which is to be achieved “by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government”: s 5(1)(a) and (2)(b). However, there is no provision in the FOI Act permitting review of any step taken in the process of considering an application beyond the power to review the determinations identified in s 24.

106 This does not, of course, mean that the obligations imposed on agencies under the FOI Act upon receipt of applications for access to documents are unenforceable in either a legal or a practical sense. As the Respondent accepted, the failure of an agency to consider or adequately consider an application might be the subject of a complaint to the Ombudsman. The fact, as noted by the Respondent, that the power of the Ombudsman might not extend to review of a decision with respect to documents held by a Minister does not mean that in other circumstances a right of administrative review does not exist through the office of the Ombudsman, nor, more importantly, does it mean that the FOI Act should be construed so as to confer a right of review through the Tribunal, which the terms of the Act do not expressly provide.

107 An obligation may also be enforceable by way of judicial review. Although the grounds of review will be more limited and the cost may be a substantial hurdle for applicants, a failure by an agency to carry out its statutory obligations under the FOI Act might result in an order in the nature of mandamus obliging the agency to fulfil its statutory obligation.

108 This approach to the scope of a determination under s 24 is confirmed by s 25 which provides the circumstances in which an agency may or shall refuse access to a document. These include the circumstance that the work, if carried out, would substantially and unreasonably divert the agency’s resources away from its other functions: s 25(1)(a1). However, consistently with the scope and objects of the legislation and the expressed intention that the FOI Act shall be applied so as to further those objects and so as to facilitate and encourage the disclosure of information (s 5(3)), s 25 should be seen as an exclusive statement of grounds on which access may be refused. Unlike the Commonwealth Act, it does not include a decision that the agency does not hold any document fulfilling the description in the application.

Contrary authority

109 Although there are clear parallels between the FOI Act and the Freedom of Information Act 1982 (Cth) (the “Commonwealth FOI Act”) there are also significant differences between the State Act and the latter Act. For example, under the latter Act an applicant may seek review by the Administrative Appeals Tribunal of, amongst others, “a decision refusing to grant access to a document in accordance with a request”: FOI Act (Cth), s 55(1)(a). Thus, a Commonwealth agency may refuse to process a request if it is of the view that the work involved “would substantially and unreasonably divert the resources of the agency from its other operations”: Commonwealth FOI Act, s 24(1)(a). However, that result is effected by the agency refusing to grant access to documents in accordance with the request, thus triggering a right of review under s 55(1)(a). Similarly, where the agency is satisfied that the document is in its possession but cannot be found or that the document does not exist, it is empowered to refuse a request for access to the document: s 24A, inserted in the Commonwealth FOI Act in 1991. That satisfaction depends upon all reasonable steps having been taken to find the document and again, because the result is a refusal to grant access, the decision is reviewable under s 55(1)(a).

110 An example of a challenge to the adequacy of a search under the Commonwealth FOI Act is Beesley v Commissioner of Taxation [2001] AATA 476 (4 June 2001). Mr Beesley also had experience under the State FOI Act: see Beesley v Commissioner of Police (NSW) [2000] NSWADT 52. Because of the different statutory schemes, Mr Beesley’s application under the Commonwealth Act provides no assistance in the present case. However, the resolution of his application under the State FOI Act is relevant and was relied upon by O’Connor DCJ in reaching a conclusion as to the scope of the State FOI Act inconsistent with the views set out above.

111 In Beesley v Commissioner of Police (NSW) judicial member M B Smith took a different view of the operation of s 24 of the Act to that set out above. The principal element in his reasoning is contained in the following paragraph:

“8. In my opinion, it is significant that the determination provided for in s 24(1)(a) on the giving of access ‘to the document’ relates to ‘the document’ which is the subject of the application for access. The determination must address the whole ambit of the request, including all ‘documents’ identified as being its subject matter, ie including all documents which the applicant alleges to be ‘held’ by the agency regardless of whether this is in fact the case. It is then reasonable to construe the power to make a determination that ‘access to the document is … to be refused’, as encompassing a refusal on the ground that the document or additional documents within the terms of the request cannot be identified or located or that it or they have positively been found not to exist.”

112 I do not find this reasoning persuasive. As already noted, the right which is conferred on an applicant is a right to access to “an agency’s documents”: s 16(1). That phrase means “a document that is held by the agency”: s 6(1). The natural meaning of s 24, read in its statutory context, is that the agency is required to consider whether or not to grant access to a document which is specified in the application and has been identified by it. In ordinary parlance, one does not speak of refusing access to some thing or place over which one has no control.

113 The Tribunal in Beesley found that its construction was “consistent with” the language of s 24(2): at [9]. In my view s 24(2) is neutral as to whether it is concerned with documents which the agency does not hold. The same may be said of s 25(1)(a1). However, reference in the latter provision to “the work involved in dealing with the application” might readily extend to searches for a document as well as consideration of a document which has been identified. The fact that such a circumstance is expressly identified as one where the agency may “refuse access” does not carry with it the proposition that in other circumstances, where the agency has carried out appropriate searches (in its view) and has satisfied itself that it does not hold a relevant document, it is then considered to refuse access to the document if it expressly or implicitly notifies the applicant of its conclusion that it holds no other documents falling within the description in the application.

114 The reasoning of the Tribunal in Beesley appears to depend on the proposition, which is stated as apparently self-evident, that the “determination must address the whole ambit of the request”. The inference that the powers of the Tribunal extend to all aspects of the manner in which the agency dealt with the request must be justified by reference to the language of the statute. Whatever the desirability of such a jurisdiction, the language does not support that construction.

115 The Tribunal in Beesley appears to have relied to a significant extent upon decisions made under the Commonwealth Act. Thus, at [6] reference was made to Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163. In that case, the Administrative Appeals Tribunal (Cth) held that the provision in the Commonwealth FOI Act which obliged the agency to provide assistance with respect to documents not held by the agency which was the recipient of the application, indicated that an application may be made for access to “a document which may reasonably be expected to be in the possession of the agency to which the request is addressed”: at [9]. Two documents the subject of that application could not be located by the agency. The agency notified the applicant that it was refusing access, but the Tribunal treated both letters as containing “a denial that the document to which access is requested is a document of the agency, rather than a refusal to grant access to a document of the agency”: at [13]. For the purposes of jurisdiction, the Tribunal held:

“The two ‘decisions’ can, I consider, be regarded either as decisions deferring provision of access to the document requested (s 55) or as merely giving information, so that there has been a failure to make a decision on the request and to give notice of it.”

116 So far as the power of the Tribunal to consider the adequacy of the search undertaken by the agency was concerned, it held that the powers conferred under s 58 of the Commonwealth FOI Act would permit it in an appropriate case to investigate the adequacy of the agency’s search. However, s 58, as then in force, was in broader terms than the equivalent provision in the State Act. It read:

“58(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.”

117 By contrast, s 63 of the ADT Act provides:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it … .

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

118 On the broadest view of the powers conferred by s 63, the Tribunal is, in literal terms, empowered to carry out the search required to be undertaken by the agency in responding to the application. That approach would be incorrect, however, because sub-s (2) is limited to the purposes of sub-s (1), which involves the determination of an application for review of a reviewable decision. Section 63 should be seen as a conferral of power, which assumes, but does not address, the scope of the Tribunal’s jurisdiction. It neither expands nor contracts the scope of the jurisdiction conferred by s 24. I do not understand this to be inconsistent with comments of the Full Court of the Federal Court as to the scope of s 63 in Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; 148 FCR 427 at [28]-[29] (Finn, Emmett and Edmonds JJ).

119 Beesley also sought assistance from the decision of the ACT Administrative Appeals Tribunal (constituted by Professor Lindsay Curtis) in Re Smedley v Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779. In the course of its reasons, the AAT in Smedley stated:

“12 A statement by an agency that it cannot locate a document in its files amounts to a statement that the document is not in the possession of the agency. For the purposes of the Act, an agency must be taken not to possess documents it cannot find. A document it does not possess is not a document of the agency.”

120 The correctness of the reasoning so far must be accepted; the problems arise in the sentences immediately following:

“A statement that it cannot find a document must be taken, for the purposes of the Act, to be a refusal to give access to the document. The task of the Tribunal is to ascertain whether that is the correct decision. The Tribunal must be satisfied that reasonable attempts have been made to find the document before it can be satisfied that the document is not a document of the agency and that the agency was therefore correct in not giving access to it.”

121 This last passage does not follow from the first and the elision is not explained or justified. The AAT proceeded:

“13 The verb “refuse” in its transitive form, is defined in the MacQuarie Dictionary [sic] as ‘to decline to give; deny’. An applicant who is told by an agency that he or she cannot have access to a document because the document cannot be found or because the agency does not have the document is denied access to the document as surely as if the agency told the applicant that, although it had the document, it would not give access. In either case, the consequence for the applicant is the same. He or she does not get access to the document.”

122 This logic has force only if there is such a document. That assumption may be correct in some cases, but not in others. But the relevant question is not whether the assumption is correct but whether it is the function of the AAT to determine not, indeed, its correctness, but whether reasonable steps had been taken by the agency to justify the assumption. There is nothing in the State FOI Act to justify the conclusion that such a function has been conferred on the Tribunal. The fact that the language of the Commonwealth FOI Act, which has changed significantly over the years, may justify such a conclusion is not to the point for present purposes.

123 Although a number of AAT decisions follow this approach there is one case where a different approach has been taken to the Commonwealth FOI Act, namely Re Kalman and Department of Veterans’ Affairs [1992] AATA 321. In that case the decision of the agency was to release all documents to the applicant, but, as Deputy President Forgie noted, in view of “the piecemeal way in which he has been given access, it is easy to understand that Mr Kalman has grave doubts that he has actually been given all of the documents in accordance with that decision”: [40]. Forgie DP considered the argument that, although the decision was to grant access to the documents identified, if the searches had been inadequate, it would not have been the decision to grant access to all documents “in accordance with a request”, as required by s 55(1)(a) of the Commonwealth FOI Act: at [51].

124 It was necessary for Forgie DP to distinguish earlier cases in the AAT, including Re Anti-Fluoridation Association, referred to above. She held that the facts of the case before her were different because there was in Kalman “a very clear decision to grant access to all documents” and nothing in the correspondence with Mr Kalman suggested any doubt in the minds of the officers but that all documents had been released: at [50]. It is clear that the focus of her reasoning was on the nature of the decision under review. Whilst making it clear that her finding was that the Tribunal did not have jurisdiction, she in fact considered the arguments that the searches made had been inadequate: at [54]-[58]. In doing so, she noted the possibility that the Tribunal might go into the agency’s offices and “conduct its own search”: at [56]. That would, as she pointed out, probably be impracticable because the Tribunal would not know how the files were arranged. She considered that, although the agency had been careless and inefficient in handling the request, the searches which had been made were adequate and no obvious gap in the material produced was established. In conclusion, the Tribunal emphasised that its decision was that it did not have jurisdiction to hear the application at [59].

125 It may be that the unambiguous nature of the decision to grant access to all documents highlighted the difficulty in construing that as a decision to refuse access, as was necessary to grant review by the Tribunal. However, it is difficult to see why the language should operate differently, either depending on differences in formulation of the response from the agency or depending on whether the Tribunal believes that there are other documents which have in fact not been produced.

126 Subsequent to Beesley, there have been a number of decisions of the ADT which have held, on the basis of Beesley, that the Tribunal has jurisdiction to examine the adequacy of the search: see, eg DQ v Commissioner of Police [2002] NSWADT 215 at [7]; O’Hara v North Sydney Council [2005] NSWADT 100 at [10].

127 Before the President of the ADT, the Director-General in the present proceedings apparently referred to a number of Victorian decisions “in which the review tribunal eschewed any role for it in dealing with sufficiency of search allegations”: see [2006] NSWADT 195 at [40]. A different view was taken, however, in respect of proceedings before the Victorian Civil and Administrative Tribunal (VCAT) constituted by Mrs Ada Moshinsky QC on 5 November 1998. The applicant in that matter had sought documents supposedly held by the Victoria Police relating to allegations of environmental sabotage as a result of which chemical storage facilities on Coode Island in the Port of Melbourne had exploded causing a toxic plume to spread across the city. The agency denied access to a number of documents, but the applicant was concerned that many documents had not been located. The Tribunal directed the agency to undertake further searches. Numerous additional documents were located and at the end of the proceedings a costs order was made against the agency. As explained by the President in the present proceedings, at [46]:

“The agency appealed against the costs orders, one of its arguments being that the exercise of the costs discretion had miscarried when the Tribunal took into account the agency’s alleged failure properly to locate and identify documents relevant to the request. It contended that the Tribunal had no power to make directions to the agency going to the question of whether it had properly located all the documents in its custody relevant to the request; and so the costs order was defective in so far as it was based on that consideration. The Supreme Court was therefore called on to address the question of the Victorian Tribunal’s power to ascertain whether a sufficient or adequate search had been undertaken.”

128 The challenge was considered in the Supreme Court by Hedigan J in Victoria Police v Burton [1999] VSC 534, who stated at [18]:

“The Tribunal expressed the view that ‘the advice that documents are missing is a refusal to give access, which is a reviewable decision. The review of a refusal may not be limited to grounds of exemption. Pursuant to s 54 the Tribunal has the same powers as the agency in respect to a request; accordingly, in my opinion, it can direct that further searches be undertaken’.”

129 His Honour considered the contention that the VCAT had no power to review the response that documents “did not exist”: at [29]. His Honour continued:

“The Tribunal clearly did conclude that it had that power at least in the circumstances here prevailing when it reached provisional views that the documents did exist but had been either suppressed or diverted out of the possession of the Victoria Police. … In my judgment, there is nothing in the Act to suggest that the Tribunal did not have the jurisdiction which it decided it did have and did exercise. With respect to the argument there is no jurisdiction under s 52(a) to do anything other than review a refusal to grant access, it is an excessively narrow and unacceptable view of refusal. I reject that submission. In any event, s 27 was not likely to be intended to apply to a case in which the issue of proper disclosure of documents was actually before the Tribunal.”

130 Section 27 of the Freedom of Information Act 1982 (Vic) provides for an applicant to be given notice of a decision and included an obligation to inform the applicant of his or her right to complain to the Ombudsman where a document which, if it existed, would not be an exempt document, does not exist or cannot be located: s 27(1)(e). One would expect notice of a determination to precede any application to the Tribunal, except in cases where a decision had not been made within an appropriate time. However, as already noted in relation to s 28 of the FOI Act (at [96] above) the relevance of a notification provision to the construction of the provision conferring jurisdiction on the Tribunal must be limited. In Burton, the Court did not consider how a statement that a document did not exist would constitute a refusal to grant access to such a document for the purposes of a review under s 50(2)(a) of the Victorian FOI Act. (The references to s 52 at [27] and [29] of the judgment should presumably, in each case, be a reference to s 50(2).)

131 The reasoning of Hedigan J was set out in some detail by O’Connor DCJ in the present matter and accepted by his Honour: see [2006] NSWADT 195 at [47]-[55]. His Honour further noted that Kalman could be distinguished “as an instance where the agency’s response was seen as a full one (no documents considered to be covered by the request were refused), and therefore the deemed refusal situation did not arise”: at [58].

132 As noted above Kalman cannot be distinguished in this way: Deputy President Forgie held that she had no power to investigate the adequacy of the search, not that she had power, exercised it and found the search adequate. As a matter of principle, the suggestion that jurisdiction depends upon the outcome of its exercise is implausible. If the statutory language does not reasonably bear the meaning proposed, the fact that on one view the result may be a diminution in the powers of the Tribunal and the adequacy of the remedies available to an applicant, should not lead to a different conclusion. If the language were ambiguous, and the objects and purpose of the legislation called for a particular construction, no doubt that approach would be appropriate. That is not, in my view, the present case, because the FOI Act is tolerably clear in its expression.

Conclusions

133 A review of these authorities does not persuade me that the construction of the New South Wales FOI Act set out above is misconceived. In particular, the language of the FOI Act does not necessarily lead to the same conclusion as that which has been adopted in Victoria and by the Commonwealth AAT. Both the Victorian and Commonwealth Acts, in their respective sections permitting review, refer to a decision refusing to grant access to a document “in accordance with a request”. That language does not appear in s 24(1)(a), nor s 53(1) of the FOI Act. Nor, indeed, does it appear in s 53(3), identifying who is a person aggrieved by a determination, which refers to a determination by which an agency “refuses to give the person access to a document”. To the extent that the authorities under the Victorian and Commonwealth legislation (other than Kalman and some earlier Victorian cases) treated that phrase as a basis for permitting the Tribunal to review the adequacy of the search where the agency denied the existence of any further documents, there is a clear point of distinction between the statutes.

134 Further, the reasoning in a number of the cases placed weight upon the desirability of the Tribunal having power to review the adequacy of a search and the power to direct the agency to undertake further searches. No doubt there are reasons of policy why it might be thought desirable that the Tribunal entitled to review the merits of a refusal to supply access to documents should have power at least to direct further inquiries in relation to the ascertainment of the class of documents to be considered. On the other hand, it may be thought that, administrative review of the search process being available through the office of the Ombudsman, an applicant not satisfied with the outcome of such an investigation should be restricted to judicial review, even though that has potential costs ramifications and is limited to assessing whether the agency has failed to carry out its legal obligations or has acted beyond its legal powers. These matters are, however, for the Parliament and do not form a basis for the Court to reconstruct the statutory language to give effect to that which is perceived to be a desirable outcome.

135 For these reasons, in my view the Tribunal did not have power to inquire into the adequacy of the searches undertaken by the agency and the question referred to this Court should be answered accordingly. The question should be answered as follows:

Question: Is a notification under s 28(1)(b) of the Freedom of Information Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review?

Freedom of Information Act

(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24;

Freedom of Information Act

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Citations

Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140

Most Recent Citation

Kerekes v Dept for Education & Child Development [2013] SADC 149

Cases Citing This Decision

49

Chand v Administrative Decisions Tribunal [2011] NSWCA 131

Commissioner of Police v Mohamed [2009] NSWCA 432

Simring v Commissioner of Police [2009] NSWSC 270

Cases Cited

22

Statutory Material Cited

5

Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282

Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195

Director-General, Department of Commerce v Cianfrano [2007] NSWSC 849

CITATION:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140
HEARING DATE(S):	29 January 2008
JUDGMENT DATE:	19 June 2008
JUDGMENT OF:	Beazley JA at 1; Giles JA at 78; Basten JA at 79
DECISION:	Question: Is a notification under s 28(1)(b) of the Freedom of Information Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review? Answer: (a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the Freedom of Information Act 1989; (b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24; (c) the jurisdiction of the Tribunal conferred by s 53 of the Freedom of Information Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to ss 17 and 18 of the Freedom of Information Act.
CATCHWORDS:	ADMINISTRATIVE LAW - Freedom of Information Act 1989– access to documents - a notification that an agency does not hold a document under s 28 of the FOI Act is not a “determination” for the purposes of s 24 - ADMINISTRATIVE LAW - Freedom of Information Act 1989 – jurisdiction of Administrative Decisions Tribunal - the jurisdiction of the Tribunal conferred by s 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by an agency
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997, s118 Freedom of Information Act 1989, ss 24, 28, 52, 53 Ombudsman Act 1974, s 26 Supreme Court Act 1970, s 48 Uniform Civil Procedure Rules 2005, r 6.35
CASES CITED:	Atkinson v United States of America Government [1971] AC 197; [1969] 3 All ER 1317 Badgery v Murphy (1887) 4 WN (NSW) 85 Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Beesley v Commissioner of Taxation [2001] AATA 476 Brisbane City Council v Valuer-General (Qld) [1978] HCA 40; (1978) 140 CLR 41 Cianfrano v Director-General, Department of Commerce [2005] NSWADT 282 Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195 Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; 148 FCR 427 Daykin v SAS Trustee Corporation [2001] NSWSC 58; 51 NSWLR 328 Director-General, Department of Commerce v Cianfrano [2007] NSWSC 849 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 DQ v Commissioner of Police [2002] NSWADT 215 Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 Frost v Amaca Pty Ltd [2004] NSWCA 358; (2004) 61 NSWLR 159 Holmes v Angwin [1906] HCA 64; (1906) 4 CLR 297 Jones v Wrotham Park Settled Estates [1980] AC 74; [1974] 1 All ER 286 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373 O’Hara v North Sydney Council [2005] NSWADT 100 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Puglisi v Administrative Decisions Tribunal of NSW [2001] NSWCA 298; 52 NSWLR 350 Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 Re Kalman and Department of Veterans’ Affairs [1992] AATA 321 Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 Sasterawan v Morris [2007] NSWCCA 185 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 The Queen v Rigby [1956] HCA 38; (1956) 100 CLR 146 Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443 Zukerman v Law Society of NSW (1986) 5 NSWLR 292
PARTIES:	Administrative Decisions Appeal Panel (Appellant) Director-General, Department of Commerce (First Respondent) Robert Cianfrano (Second Respondent) Sydney Markets Ltd (Third Respondent)
FILE NUMBER(S):	CA 40566/07
COUNSEL:	Submitting appearance (Appellant) J Kirk (First Respondent) In person (Second Respondent)
SOLICITORS:	I V Knight, Crown Solicitor (First Respondent)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal Appeal Panel
LOWER COURT FILE NUMBER(S):	069042