Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors

The Administrative Decisions Tribunal Appeal Panel (the Tribunal) appealed a decision concerning the jurisdiction of the Administrative Decisions Tribunal (the ADT) to review a notification issued by the Director-General, Department of Commerce (the Department) under section 28(1)(b) of the *Freedom of Information Act 1989* (NSW) (the FOI Act). The core dispute revolved around whether such a notification, stating that the Department did not hold a particular document, constituted a "determination" that the ADT had jurisdiction to review under section 24 of the FOI Act. The appeal was heard by Beazley JA, Giles JA, and Basten JA.

The primary legal issues before the court were whether a notification that an agency does not hold a document, pursuant to section 28(1)(b) of the FOI Act, is a "determination" for the purposes of section 24 of the FOI Act, thereby conferring jurisdiction on the ADT to review it. Furthermore, the court was required to determine whether the jurisdiction of the ADT, as conferred by section 53 of the FOI Act, extended to reviewing the adequacy of searches undertaken by an agency in response to a request for access to documents made under sections 17 and 18 of the FOI Act.

The Court of Appeal held that the jurisdiction of the ADT is relevantly limited to determinations made under section 24 of the FOI Act. It reasoned that the formation of an opinion by an agency that it does not hold a document, as notified under section 28(1)(b), does not constitute a "determination" for the purposes of section 24. Consequently, the jurisdiction of the ADT conferred by section 53 of the FOI Act does not extend to reviewing the adequacy of searches undertaken by an agency in response to a request for access to documents. The appeal was therefore allowed.