Altaranesi v Sydney South West Area Health Service
[2011] NSWADT 43
•03 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Altaranesi v Sydney South West Area Health Service [2011] NSWADT 43 Hearing dates: 17 September 2010 and 8 October 2010 Decision date: 03 March 2011 Jurisdiction: General Division Before: P Molony, Judicial member Decision: The deemed decision to refuse Mr Altaranesi access to documents is affirmed.
Legislation Cited: Administrative Decision Tribunal Act 1997
Freedom of Information Act 1989
Interpretation Act 1987
Freedom of Information (Fees and Charges) Order 1989Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Department of Treasury and Finance v Kelly 920010 4 VR 595,; [2001] VSCA 246
Re Shewcroft and Australian Broadcasting Corp (1985) 2 AAR 496
Cianfrano v Premier's Department [2006] NSWADT 137
Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70Texts Cited: Pearce & Geddes, Statutory Interpretation in Australia, (6th Ed) Butterworth's Category: Principal judgment Parties: Tareq Altaranesi (Applicant)
Sydney South West Area Health Service (Respondent)Representation: Counsel :
A Britt (Respondent)
T Altaranesi (Applicant in person)
File Number(s): 103029
reasons for decision
Background
On 8 December 2009 Mr Altaranesi faxed an application for access to information under the Freedom of Information Act 1989 (the Act) to the Sydney South West Area Health Service (SSWAHS). The application was in form of a letter. A copy is annexure 'TA1' to Mr Altaranesi' affidavit filed on 7 July 2010. The letter requested that the agency not disclose his health information, and included the following paragraph -
"I apply today, under Freedom of Information Act to get the copy of all my files of Workers Compensation Ms Mary McAllister, Dr. Nossar, Mr Derek Wysocki, Human resources Dept, and others are holding."
On 9 December 2009 Mr Altaranesi again wrote to the SSWAHS (TA3) referring to his previous letter. He attached this letter to a formal application under the Act (TA4) that referred back to the letter for particulars. Included, was a money order for a concessional fee. The respondent says this was received by fax on 11 December and by post on 14 December 2009. Mr Altaranesi relevantly advised -
"Form of access is:-
Inspect the document sand Copy them.
The documents required:
1 - My entire file in the Environmental Service and Corporate services Department of RPAH (includes employment and works compensation issues).
2 - My entire file in Human Resources Department of RPAH. (Includes personal information they are holding, employment and works compensation issues).
3 - My entire With Ms. Mary McAllister [Rehabilitation Coordinator of RPAH]. Regarding all compensation claims, including all assessments and medical & referrer (sic) reports.
4 - My entire file with Dr. George Nossar, HR of RPAH. [including all compensation claim and his previous assessments for me].
5 - My entire file with Mr Meheran and Mr Derek Wysocki, [Compensation office in RPAH]. [Including all documents of compensation claim].
6 - My entire file, Ms Whalan is holding. [Including employment and compensation claim].
7 - other files regarding all works (sic) compensation claim (sic), RPAH or SSWAH are holding."
On 14 December 2009 Ms Sonia Makira, Area FOI Coordinator, acknowledged receipt of Mr Altarenesi's correspondence and asked him to provide certified copies of his proof of identity. A certified copy of his health care card was also requested to verify his entitlement to a concessional fee.
On 16 December 2009 Mr Altaranesi wrote to the respondent as follows (TA7) -
"Regarding my request for the documents as indicated in your letter of 14 December 2009, please amend it to be include also the electronic file (computer files) created for me by Mr. Harding, Mr. Chris Leahy, Ms Mary McAllister (all emails and faxed exchanges between her and, Meheran, Derek, Jan Whalan, Chris Leahy, bob Harding and insurer: Employer Mutual Limited), Dr. George Nossar, Mr Meheran, Mr Derek Wysoki, Human Resources Dept. and Ms Whalan. And also seek Personal Information Cards or file, the HR, Environmental Svc, Dr Nossar and Mr Leahy are holding."
He enclosed an uncertified copy of his health card with the card number and his address deleted. This was received by fax on 16 December and by post on 21 December 2009.
On 22 December 2009 Ms Makira replied in a lengthy letter (TA11). Relevantly she advised -
"... this new re-scoped application, dated 16 December 2009, is now regarded as a new application, which will result in a new time limit arising (21 days from the receipt of your application no new application fee has been charged, - as an application fee was received with your letter dated 9 December (received 14 December 2009)...
However, please be advised that after preliminary review of your amended request, I have determined that its scope is too broad for Sydney South West Area Health Service (SSWAHS) to process in its current form. In my opinion, it would unreasonably divert this agency's resources from its core functions. Under section 25(1)(a)) of the FOI Act and agency may refuse access to documents:
... 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 we by the agency in the exercise of its functions.
By way of explanation, as your application of 16 December 2009 is currently worded, I have estimated that the amount of time to search for, retrieve and manually assess the documents including each of the staff members (you have listed above) to search through their e-mails will be in excess of 65 hours. These hours would not include the time required to process the application, such as determining whether the documents are within scope, photocopying, consulting with third parties, scheduling the documents, making a determination and the general administration of the FOI process.
By refining your request of 16 December 2009, SSWAHS should be able to conduct appropriate searches; and it will also assist in keeping the processing costs to a minimum. Should you wish to limit or clarify the scope of your application, please advise me in writing .
Mr Altaranesi replied on 23 December 2009 by fax (TA12.) He expressed his frustration at the way his application was being dealt with. He said that his 'main application is as indicated in the FOI application form,' He said he 'did not add anything more than mentioned in my application.' The application was as initially stated in his letters of 8 and 9 December. The letter of 16 December simply provided a 'more specific explanation in order to help you in locating the documents required (manually and electronically).' The letter concluded -
"I look forward to hear the following:-
1. Determination decision according to the application of FOI dated 8 and 9 December followed by my explanation of, where these documents are kept. (Without re - scoping the application as you said).
...
On 24 December 2009 Mr Altaranesi attended at RPAH. He says that he sought to produce his ID to Ms Pan. While there are differences as to what then occurred, with SSWAHS saying that Ms Pan advised him that she was not authorised to deal with him, there is agreement that she did not note his ID. Mr Altaranesi put his view of what occurred in a letter to Ms Makira dated that day (TA13 and SM14).
On the same day Ms Makira again wrote to Mr Altaranesi (TA14). Ms Makira noted that Mr Altaranesi had sent in a copy of a certified copy of his health care card which was illegible (her faxed copy was - see exhibit SM 11 to her affidavit), and required production of the original certification. Her letter continued -
"As per my letter of 22 December 2009, you were advised that after preliminary review of your amended request, I determined that its scope was too broad for Sydney South West Area Health Service (SSWAHS) to process in its current form, and in my opinion; it would unreasonably divert this agency's resources. A detailed explanation was given, as we 22 a request that you re-scope your application, in my letter of 22 December 2009.
Notwithstanding my request, you advised that you would not reduce the scope of your application, as per your faxed letter of 23 December 2009.
I am again giving you an opportunity to reduce the scope of your application, dated 16 December 2009. "
Mr Altaranesi says that he replied on 30 December 2009 (TA15) as follows-
I refer to the application to inspect and get a copy of some document under FOl Act on 9 th December 2008.
Please be noted that this application is for personal affairs and this application is constitutional completed. And for the IDs, as I said in previous occasion expressed to show the IDs for you by myself and I visited RPAH to show them to Ms. Ellaine Pan without taking a photos of them, but she refused, plus I told you that I am ready to show them to you at any time. (Although my IDs, you are holding as I am ex-employee). You even refused to get my phone or contact me.
I am looking to hear of the date of inspection and copying of these documents.
And please noted that, As I said in my letter of 30 December 2009, don't join the application of 9 Dec. with my letter of 16 Dec. particularly after you are imposing impracticable decisions, my application of 9 December has to deal separately, and the letter of 16 December has to be dealt separately too; I have sent my request to provide me with the form of FOI application for my request of electronics file (mentioned in letter of 16 Dec. 09).
Regarding your decision of making the main application of 9 Dec. 09 and letter of 16 Dec. 09 into one application, subsequently led to your decision as it is broad of access, I am still waiting your direction of how will I make the Internal Review for this decision.
I look forward to hear from you, if you have any queries, please contact me..
On her return to work, after the Christmas break, Ms Makira found three faxes from Mr Altaranesi. The first, bearing a fax time of "24.12.2009 15:22", consisted of two pages: a cover page showing it was from "TAREQ". That page bore a fax number with the comment "Confidential". The second page was Mr Altarenesi's letter of 24 December 2009 (TA13 and SM14). The second fax (SM 15) bore the time of "30/12/2009 10:04" and consisted of five pages. The first was a cover page showing it was from "TAREQ" with the same fax number and the comment "Confidential". The next four pages were blank apart from the fax imprint bearing the time, the page number, the word "TAREQ," and the same fax number. The third fax (SM16) is identical to the second fax.
On 11 January 2010 Mr Altaranesi wrote to the Ms Makira, again by fax, referring to his application of 9 December 2009. He continued -
" I refer to your letter dated 24 December 2009, which I received it today by registered main No. 591681013, please do the following to avoid exhausting your and my time in processing a simple request:-
1. To avoid scoping or re-scoping etc... At this time I need you to rely only on my request of access under FOI Act, dated 9 December 2009, I can consider and rely on my request of 9 December 2009 not 8 December 2009, as the letter of 8 December was initially addressed for others purposes plus my request for FOI . (Please disregard my request of 101 dated 8 December 2009 not other issues mentioned in this letter). I think it is cleared for you. I am still waiting the date of when can I come to inspect and you copied it.
2. For my request of 16 December 2009 to "amend my application to be also include the electronically files (not manually file)" which you decided that this request is significantly increased my request for document, and was a new scope to my request of 9 December 2009 and it is too broad for SSWAHS relied on s25 (1)(a1) of FOI Act. Please NOTE that I am applying for review for this decision. Please provide me with the form required and conditions of review which it must be calculated as of today 30 December 2009. (And the reviewer should be except Jan Whalen as there is conflict of interest with me).
I am re-applying with a new separate application to access to personnel affair document concerning myself the following electronics files:
a. Electronic file created by Bob Harding, Silvio Mennillo, Gisela Travers and Environmental Services Department for Employment, grievances and Works Compensation), this includes emails exchanges between Mr Harding, Silvio Mennillo, Ms Travers, Jan Whalan, Jacqui Clark, Jackie Mills, Greg Driver and Chris Leahy.
b. Electronic files and faxes created by Corporate Services Manager of RPAH concerning my employment and works compensation including emails exchanged between him/ her and human resources, Dr. Nossar, Jan Whalan and Jacqui Clark.
c. Electronic files and faxes created by Ms Mary McAllister, Mr. Meheran and Derek Wysocki. Regarding Works compensation, including emails exchanged between them, Insurer, Bob Harding, Jan Whalan and Chris Leahy.
d. Electronic files created by Jan Whalan regarding employment, works compensation and grievances, including emails exchanged between her and Chris Leahy, Greg Driver, Bob Harding, Jackie Mills, Gisela Travers, George Nossar and Mary McAllister.
e. Electronic files created by Mr. Greg Driver regarding employment and works compensation and grievances, including emails exchanged between him and Bob Harding, Gisela Travers, Chris Leahy, Jackie Mills, Jan Whalan, Jacqui Clark, George Nossar and Mary McAllister.
f. Electronic files created by Human Resources Manager of RPAH, including emails exchanged between him/ her with Jan Whalan, Greg Driver, Jacqui Clark, Di Gill, Chris Leahy, Mary McAllister, George Nossar, Bob Harding, Gisela Travers and others. (Regarding employment, grievances and works compensation).
g. Electronic files created by Dr. George Nossar (RPAH) concerning my employment, works compensation, medical assessment, including emails exchanged between him and Bob Harding, Jackie Mills, Corporate services Manager of RPAH, Mary McAllister, Di Gill, Greg Driver, Jan Whalan, Jacqui Clark and Insurer.
I am looking forward to start the processing this application as of 30 December 2009, until you send to me an application form to me to fill it down and attached with the necessary required.
I think the matter become easier for you for processing, and I brief the above in the following:-
1- My application of 9 December 2009 must be processed without re-scoping or linking to letter of 16 December, particularly after explanation above..
2 - I am applying for review your decision regarding my letter of 16 December 2008 that it was too broad for SSWAHS relied on s25 (1)(a1) of FOI Act. I am looking to provide me the application form of review and conditions of the review as of today 30 December 2009.
3 - I am applying with new application to access under FOI, please start as of 30 December 2008 until you send an application form under FOI then I will send it with all required.
For my request of the new application, if you have any further queries or information regarding my request, please Contact me, and I remind you I don't like to disclose my personal information for you, and my all IDs or original paper are ready for seeing it (without sending the original for you) and take notation of them putting in my applications file without copying it. (I am ready to show them to you wherever and whenever you like).
I look forward to hear from you.
Ms Makira declined to break up Mr Altarenesi's amended FOI request as it related to similar information, albeit from some different sources. On 21 January 2010 she wrote to Mr Altaranesi (SM18 and TA17) refusing his application to access for information under s 25(1)(a) of the Freedom of Information Act 1989 on the ground that the work involved with the application would be a substantial and unreasonable diversion of the agency's resources. She explained -
"I have determined that the scope of your request is too broad for SSWAHS to process. In my opinion, it would unreasonably divert this agency's resources from its core functions. Under section 25(1)(al) of the FOI Act, an agency may refuse access to documents:... 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.'
She advised Mr Altaranesi of his right to seek an internal review of that decision.
Mr Altaranesi says he received this letter on 28 January 2010. He responded on that day, again by fax, seeking an internal review and paid the appropriate fee by mail order. This was sent by registered post. The SSWAHS says it was received on 1 February 2010.
Mr Altaranesi disputes this relying on the registered post record (Exhibit A2). This indicated that an article addressed to "Sonia Makiara / Area FOI Coord, SSWAHS, Locked Bag 7017, Liverpool" was sent by Mr Altaranesi on 28 January 2010. It was signed for as received, by an agent of the addressee, on 29 January 2010. I note that 29 January 2010 was a Friday. The next working day was Monday, 1 February 2010.
Ms Makira acknowledged receipt by letter dated 2 February 2010 (SM22).
On 12 February 2010 Mr Altaranesi lodged an application for review in this Tribunal on the basis that there had been a deemed refusal on internal review.
The internal review was considered by Ms Roberts and dated 15 February 2010. It affirmed the decision to refuse Mr Altaranesi access to the documents requested on the basis that the work involved in dealing with the request would constitute an unreasonable diversion of resources.
Mr Altaranesi's application to the Tribunal was first listed before me for a planning meeting on 20 April 2010 when there was considerable dispute as to the course of events, and whether the decision subject to review was a deemed refusal or that made by Ms Roberts. There was, however, agreement that the issue at the heart of the matter concerned the unreasonable diversion of resources.
After two further planning meetings the matter was listed for hearing on 17 September 2010. The hearing was not completed on that day and it was adjourned part hearing to 8 October 2010, when the hearing was completed and I reserved my decision.
Issues for determination
The principal issue agitated at the hearing concerned whether the work involved in processing Mr Altarenesi's request would constitute an unreasonable diversion of resources.
In order to determine this it is necessary to decide to resolve the controversy surrounding what documents Mr Altaranesi sought access to.
Additionally, I need to address the issue of which decision is properly the subject of the application for review.
Mr Altaranesi also claimed that he is entitled to a refund of the fees paid for the internal review.
I note that in his submissions Mr Altaranesi made a series of allegations going to the conduct of SSWAHS in the processing of his FOI request, and internal review. These include that -
There has been 'malicious non-compliance' by SSWAHS in fulfilling its obligations under the Act.
The SSWAHS has engaged in misleading and deceptive conduct in its handling of his request.
That the SSWAHS deliberately delayed the processing of his application.
That the SSWAHS requirements with respect to proof of identity were unreasonable.
Underlying Mr Altarenesi's reliance on these issues is his desire for the Tribunal to make a report to the Minister in relation to the conduct of the FOI application by SSWAHS' officers under s 58 of the Act.
As I was at pains to point out to Mr Altaranesi, the Tribunal's function is to review the internal decision of the agency (whether actual or deemed), not to undertake a review of the agency's conduct in handling an application for access to information. Insofar as issues meriting a report under s 58 might arise, they do so incidentally to the Tribunal's core function, which is to review the internal review decision.
Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Section 61 of the Freedom of Information Act 1989 provides that the burden of establishing that a determination is justified lies on the agency.
When considering reviews under the Freedom of Information Act 1989 s 55 instructs that -
"In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative."
Material before the Tribunal
Mr Altaranesi filed the following material -
Application for review of a reviewable decision filed 12 February 2010
Affidavit of Hala Tarek sworn 5 July 2010.
Affidavit of Tareq Altaranesi sworn 2 July 2010
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 1)
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 2)
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 5)
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 6)
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 7
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 8)
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 9)
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 10)
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 11)
Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 12)
Applicant's outline of submissions - two separate documents
SSWAHS filed -
Affidavit of Sonia Makira sworn 8 June 2010
Affidavit of Charlotte Roberts sworn 9 June 2010
Respondent's outline of submissions
Legislation
Section 16 of the Act provides -
"(1) A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act."
Section 17 specifies the requirements for making an application for an agency's documents.
"An application for access to an agency's document:
(a) shall be in writing, and
(b) shall specify that it is made under this Act, and
(c) shall be accompanied by such application fee as the agency may determine, and
(d) shall contain such information as is reasonably necessary to enable the document to be identified, and
(e) shall specify an address in Australia to which notices under this Act should be sent, and
(f) shall be lodged at an office of the agency,
and may request that access to the document be given in a particular form referred to in section 27."
Section 27 provides -
"(1) Access to a document may be given to a person:
(a) by giving the person a reasonable opportunity to inspect the document, or
(b) by giving the person a copy of the document, or
(c) in the case of a document from which sounds or visual images are capable of being reproduced, whether or not with the aid of some other device-by making arrangements for the person to hear or view those sounds or visual images, or
(d) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of sound-by giving the person a written transcript of the words recorded in the document, or
(e) in the case of a document in which words are contained in the form of shorthand writing or in encoded form-by giving the person a written transcript of the words contained in the document, or
(f) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of a written document-by giving the person a written document so reproduced.
(2) If an applicant has requested that access to a document be given in a particular form, access to the document shall be given in that form.
(3) Notwithstanding subsection (2), if the giving of access in the form requested:
(a) would unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions, or
(b) would be detrimental to the preservation of the document or (having regard to the physical nature of the document) would otherwise not be appropriate, or
(c) would involve an infringement of copyright subsisting in matter contained in the document,
access in that form may be refused but, if so refused, shall be given in another form.
(4) If an applicant has requested that access to a document be given in a particular form and access in that form is refused but given in another form, the applicant shall not be required to pay a charge in respect of the giving of access that is greater than the charge that the applicant would have been required to pay had access been given in the form requested.
(5) This section does not prevent an agency from giving access to a document in any other form agreed on between the agency and the person to whom access is to be given.
(6) An agency may refuse to give access to a document unless any charge payable in respect of dealing with the application, or giving access to the document, has been paid."
Section 23 deals with access to information held on computer systems. It provides -
"If:
(a) it appears to an agency that an application relates to information of a kind that is not contained in a written document held by the agency, and
(b) the agency could create a written document containing information of that kind by the use of equipment that is usually available to it for retrieving or collating stored information,
the agency shall deal with the application as if it were an application for a written document so created and shall be taken to hold such a document.
Section 24 is concerned with when determinations for access to information should be made. It provides -
"(1) After considering an application for access to a document, an agency shall determine:
(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, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.
(2A) Nothing in subsection (2) prevents an agency from determining that access should be given to the document even though more than 21 days have elapsed after the application was received by the agency. Sections 64 and 65 apply to access given pursuant to such a determination in the same way as they apply to access given pursuant to any other determination under this Act.
(3) This section does not require an agency to determine an application that the agency has transferred to another agency under section 20 or has refused to continue to deal with under section 22."
Section 25 is concerned with decisions to refuse access. Relevantly, it provides -
"(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 functions, or
(b) ....
(5) Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions."
Section 28 requires that notice of a determination by given to the access applicant. If the determination is a refusal to grant access, then sub-s(2)(e) requires that the notice specify the reasons for refusal, and 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.'
Section 34 is concerned with internal reviews of determinations. Relevantly, it provides -
"(1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination.
(2) An application for review of a determination:
(a) shall be in writing, and
(b) shall be accompanied by such application fee as the agency may determine, and
(c) shall be addressed to the principal officer of the agency, and
(d) shall specify an address in Australia to which notices under this Act should be sent, and
(e) shall be lodged at an office of the agency:
(i) if notice of the determination was given to the applicant-within 28 days after that notice was given, or
(ii) if no notice of the determination was given to the applicant-within 49 days after the application was received by the agency, or
(iii) in any case, within such further time as the principal officer of the agency may allow.
(3) ...
(4) An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17.
(5) An application under this section shall not be dealt with by the person who dealt with the original application under section 17 or by a person who is subordinate to that person.
(6) An agency that fails to determine an application made under this section within 14 days after it is received by the agency shall, for the purposes of this Act, be taken to have made a determination under section 24 refusing access to the document to which the application relates.
(7) For the purposes of this section, a person is aggrieved by a determination:
(a) if the determination relates to an application made by the person under section 17 and is to the effect that:
(i) an agency refuses to give the applicant access to a document, or
...
(8) Subsections (3) (b) and (5) do not apply to the internal review of a determination that was taken to have been made by virtue of section 24 (2)."
Section 53 then gives a person aggrieved by an internal review decision of an agency, whether deemed or actual, a right to seek external review of the decision in the Tribunal. A review application is to be made within 60 days after notice of the determination is given: s 54.
Section 60 is concerned with the service of notices under the Act by an agency. It provides that, if posted, a notice shall 'be taken to have been given to the person at the end of the fifth day after the letter was posted to the person."
What decision is the subject of this review?
Mr Altaranesi sought internal review of Ms Makira's original decision of 21 January 2010 by a letter faxed on 28 January 2010. A copy of that letter, together with a money order in payment of the internal review fee, was posted on the same day. Ms Makira, however, did not receive it until the following Monday, 1 February 2010.
In my view all of the requirements that s 34(2) specifies for an application for internal review to be properly made, were satisfied when SSWAHS received Mr Altarenesi's letter and money order on 29 January 2010. The internal review application was lodged on that date and time for the completion of the internal review began to run. The fact that Ms Makira did not receive the application on that day does not detract from the fact that the internal review application was lodged with the agency on 29 January 2010.
Section 34(6) provides that unless the internal review decision is made 'within 14 days after it is received by the agency [it] shall ... be taken to have made a determination under section 24 refusing access to the document to which the application relates.'
Section 36 of the Interpretation Act 1987 relevantly provides -
(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.
(2) If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls:
(a) on a Saturday or Sunday, or
(b) on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,
the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.
Section 34(6) of the Act therefore required that an internal review be completed before the end of 14 days of its lodgement, excluding the date of lodgement, which it will be remembered was a Friday. See Pearce & Geddes, Statutory Interpretation in Australia, (6 th Ed) Butterworth's at 6.45 (pages 229-230). The fourteen days expired on 12 February 2010. There was then a deemed decision to refuse Mr Altaranesi access to the documents he sought. Mr Altaranesi lodged his application for external review on that day.
Ms Roberts made her internal review decision on 15 February 2010 (the delayed decision). By then there was a deemed decision to refuse access already in place. It is the deemed decision to refuse access that is the subject of the Tribunal's review. It is to be noted that a deemed decision to refuse access under s 34(6) does not specify the basis upon which the refusal is deemed to be made.
What documents did Mr Altaranesi seek access to?
In my opinion the correspondence from Mr Altaranesi to the SSWAHS made it very clear that, by his letter of 16 December 2009, he was seeking to amend his application. While Mr Altaranesi later asserted that this was merely an amplification of his original request, his own letter states that he was seeking to 'amend.'
In reaching that conclusion I add that the amendment so made introduced a new request for correspondence and emails flowing between named individuals, and for Mr Altaranesi's personal information cards and files held by a number of departments and individuals. It may well be that much of the information caught by this amended request may have been captured within his initial request. I certainly accept that, reasonably construed, his initial request included computer records.
Ms Makira then asked Mr Altaranesi to narrow the scope of the request, warning him that he may face a refusal on the basis of a substantial and unreasonable diversion of resources. Mr Altaranesi made it very clear in his reply of 23 December 2009 that he would not re-scope his application.
Ms Makira again wrote to Mr Altaranesi on 24 December 2009 giving him a further opportunity to re-scope.
Mr Altaranesi says that he responded by fax on 30 December 2009, having just received her letter of 24 December. Unlike his other correspondence Mr Altaranesi did not send a copy by post. In that letter Mr Altaranesi sought to -
Separate his requests of 8 and 9 December from the amendment of 16 December 2009.
Purported to seek internal review for a decision to refuse his request of 16 December on the basis of an unreasonable diversion of resources. It is clear that no such decision had yet been made.
Make a further application - for which no fee was paid - in which he sought access to electronic files created by a miscellany of people and departments, many of which plainly fell within the scope of his initial request (both original and as amended).
The evidence of Ms Makira is that, while she received a number of faxes from Mr Altaranesi dated 30 December 2009, they were - apart from the cover pages - blank. Mr Altaranesi challenged Ms Makira about this in cross-examination. She insisted that she had not received his letter of 30 December 2009. I accept that this is the case.
Ms Makira did receive Mr Altaranesi letter of 11 January 2010 in which he made reference to his letter of 30 December 2009. She agreed that she had not requested a copy of the letter of 30 December from him, when he drew the reference to it, in his letter of 11 January, to her attention in cross-examination. She proceeded on the basis that the request for information was as Mr Altaranesi had amended it on 16 December 2010 and determined it on that basis.
Mr Altaranesi argues that his request, as encompassed in his letters of 8 and 9 December 2009, is the subject of the deemed refusal. SSWAHS says it is the request as amended by his letter of 16 December 2010 (the amended request). I accept that this is the case.
There can be no doubt that by his letter of 16 December 2009 Mr Altaranesi amended and amplified his request. While I am not persuaded this necessarily resulted in the request being a new one, it was most clearly an amended and expanded one.
Once it became clear to Mr Altaranesi that he was in peril of receiving a refusal under s 25(a1) - Ms Makira having twice warned him - he did not reduce the scope of his request. Rather, he sought to withdraw his amendment, and at the same time purported to make a new request for information, which included material within the scope of his original and amended requests. Effectively, he sought to split his request to avoid the application of s 25(a1).
In my view such an attempt should be resisted as a device designed to avoid the operation of the Act. Under equivalent legislation in both the Commonwealth and Victoria it has been held that attempts to split requests, so as to avoid the operation of provision providing for refusal of access on the basis of an unreasonable diversion of an agency's resources, should be refused. Similarly, split requests should be aggregated for the purpose of determining whether they would constitute a substantial and unreasonable diversion of an agency's resourced: see Department of Treasury and Finance v Kelly 920010 4 VR 595 [2001] VSCA 246 and Re Shewcroft and Australian Broadcasting Corp (1985) 2 AAR 496. I agree with those decisions.
As a result I consider that Mr Altarenesi's request as amended on 16 December 2010 is properly the subject of review.
Will dealing with the request constitute a substantial and unreasonable diversion of the agency's resources?
Both Ms Makira and Ms Roberts gave evidence to the Tribunal and were cross-examined by Mr Altaranesi.
Ms Makira agreed that at the time she made her decision she had not reached the point of engaging in any third party consultations with respect to Mr Altarenesi's amended request. Ms Makira has been SSWAHS' FOI Area Co-ordinator since 2007. In that position she has made many advance deposit requests. These required that she estimate the time and resources involved in complying with FOI requests.
Ms Makira deposed that she had made inquires of the following people in an effort to get an understanding of the work involved in retrieving the documents sought in the amened request -
Ms Whalan, Director of Corporate Services who estimated it would take two days to search through her email and described it as "an enormous task."
Mr Wysoki, Workers Compensation Clerk, who advised it would take five to six hours to go through his emails.
The Workers Compensation manager who considered that five or six hours would be required to search his emails, and three hours to retrieve all Mr Altarenesi's files.
Mr Leahy, now Acting General Manager of Sydney Dental Hospital, who thought it would take two days to review and assess his emails.
Mr Harding, Manager of Domestic Services who thought 6 hours would be required to retrieve files and emails.
Dr Nossar, Staff Health, who considered it would take two hours to search his email.
In addition Ms Makira estimated the time it would take two members of staff she could not contact to undertake the necessary searches and retrieve documents. She considered it would take Ms McAllister from Staff Health five hours to retrieve files and check her emails, and Ms Mills, The HR Director, six hours. To all this Ms Makira also added an allowance for copying time.
In her view it would take 68 hours of agency time for the documents subject to the request to be identified of staff time, before considering whether they fell within the scope of the application, undertaking third party consultations, considering what (if any) exemptions would be claimed, and preparing reasons for any decisions made.
Ms Roberts is the Principal Investigations Officer of SSWAHS. She is based at Camperdown, whereas Ms Makira is at Liverpool. Ms Roberts made the delayed decision on internal review. She agreed with Ms Makira's estimate of the time it would initially take to identify and retrieve information likely to fall within the scope of Mr Altaranesi amended request. She said that she regarded Mr Altarenesi's amending letter of 16 December 2009 as significantly expanding the scope of Mr Altaranesi request, as it extended to emails and faxes held in different systems and archived.
Ms Roberts said that she is familiar with the record keeping systems of hospitals and departments within the area health service. Mr Altaranesi amended request would require each of the individuals named, and staff within their departments, to search records, files and archives in order to ascertain what documents they hold that may fall within the scope of the request. Given the number of individuals and departments involved, and the breadth of Mr Altarenesi's request, she agreed with Ms Makira's estimate. Ms Roberts conceded that she had not made inquiries of the individuals concerned, but had relied on her knowledge and experience when reaching that view.
In his evidence Mr Altaranesi said that in his time as an employee of SSWAHS (commencing 2004) he had made four workers compensation claims: two early in his employment and two around the time of his dismissal. He agreed that he had made a claim against SSWAHS to GREAT. He denied suggestions that he had commenced three separate proceedings against SSWAHS at GREAT, but did agree that his proceedings before GREAT were divided into three categories: fairness, discipline and threatening to sack him.
Mr Altaranesi also agreed that he had been subject to a banning order prohibiting him from going on to the grounds of Royal Prince Alfred Hospital (save specific exemptions).
Mr Altaranesi said that he had been involved in proceedings in the Industrial Relations Commission against SSWAHS in 2008 for an underpayment of wages and alleging that he had been victimised. In cross-examination Mr Altaranesi was shown a series of affidavits he had sworn in IRC proceedings numbered -
1509 of 2008 (Exhibits R3, R4, R5 and R6) - relating to unlawful termination following internal disciplinary investigations
2152 of 2008 (Exhibits R5, R8) - for relief from victimization under s 113of the Industrial Relations Act.
In addition Mr Altaranesi relied on affidavits in which he annexed further documentation demonstrating that there were two additional proceedings between SSWAHS and himself in the IRC, numbered 423 and 434 of 2008: see Mr Altarenesi's affidavits of 6 October 2010 (No's 10 & 11).
An examination of all those affidavits reveals an extensive history of disputation and conflict surrounding Mr Altarenesi's employment with SSWAHS from 2004 to early 2009. They refer to a series of incidents, workers compensation claims, investigations and complaints (by and against Mr Altaranesi) involving the individuals and departments mentioned in Mr Altaranesi amended request. Those affidavits (with attachments) alone constitute a bundle that is approximately five to six centimetres thick.
While Mr Altaranesi objected that the affidavits were irrelevant to the issues before this Tribunal, I take a different view. They point to both the complexity and the likely volume of material involved in Mr Altarenesi's amended request. It relates to issues covering the course of his employment. Each of the various proceedings he had been involved with against SSWAHS, no matter in which jurisdiction, is likely to have left a considerable paper trail which falls within the scope of his amended request. Similarly the internal complaints he made, or was the subject of, while an employee of SSWAHS, and the investigations relating to them, can be expected to have given rise to extensive records. All within the scope of his amended FOI request.
In submission and evidence Mr Altaranesi objected that the IRC and GREAT affidavits were in the public domain and not subject to his amended request. Three points need to be made about this. First, Mr Altaranesi did not exclude from his amended request documents relating to those proceedings. Secondly, the documents clearly fell within the scope of his amended request. While SSWAHS may have ultimately been able determine that they were available for inspection at the Tribunal's concerned, and refused access under s 25(1)(b), it remained obliged to consider them when dealing with his amended request. Thirdly, each set of proceedings will have generated a volume of material associated with fact finding and obtaining evidence relevant to the proceedings, and the giving and receiving of advice concerning them. This too falls within the scope of the amended request.
I consider that material responsive to Mr Altarenesi's amended request is likely to be voluminous. I accept the evidence of Ms Makira and Ms Roberts that 68 hours is a reasonable estimate of the staff time required to identify and copy relevant documents.
Once those documents have been obtained it will be necessary for them to be examined to ensure they fall within the scope of the amended request, and for their release under the Act to be considered. A schedule of documents will have to be prepared: this will be extensive. While many of the documents may well be non contentious or in the public domain, I think it likely that there will be a significant number of documents concerning which SSWAHS will have to consider whether or not to claim exemption under the Act. Given the history, it can be confidently expected that there will be a significant number of documents over which SSWAHS might consider a claim legal professional privilege. Similarly, considerations relating to the confidentiality of personal information relating to staff members (who would have to be consulted) and those relating to confidential communications and the operation of agencies, would be matters one would expect to arise. Completing these steps is likely to be an extensive and time consuming task, comparable to that involved in identifying the documents.
The factors to be taken into account when considering whether to refuse an application under s 25(a1) of the Act were set out by the President in Cianfrano v Premier's Department [2006] NSWADT 137 at [62].
(a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in Re Borthwick at 35)
(b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick )
(c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications
(d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost
(e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application
(f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)
(g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns
(h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made
(i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
That list is not exhaustive. In Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 the Appeal Panel cautioned that, at [45] -
"The Tribunal must have persuasive evidence as to what work would be involved in dealing with the application for access. Necessarily in cases where the agency relies on s 25(1)(a1) to refuse access there will be a speculative aspect to the agency's assessment."
SSWAHS is an area health service providing hospital and medical services to a significant part of greater Sydney. While it has a great many staff (some 22,000 according to Ms Makira) the reality is that the great majority of them are engaged in the provision of hospital, medical and associated services. The documents Mr Altaranesi has requested all relate to his interactions with SSWAHS, both as an employee and patient. There will be many thousands of pages responsive to his amended request, relating to issues associated with his employment. While it is likely that there will be significant duplication of those documents among the persons and departments to whom the request relates, that does not reduce the task of identifying and sorting them.
Mr Altaranesi expressed reason for seeking the documents is that they are "personal" to him. Despite requests, I am satisfied that he has refused to reduce the scope of his amended request. Rather, he has attempted to split it in an effort to avoid a claim that the request involves a substantial and unreasonable diversion of resources. I accept that processing his amended request will place a considerable burden on SSWAHS' resources, and involve significant costs.
From the time the amended request was received, SSWAHS alerted Mr Altaranesi to its likely difficulties, but he has not been wiling to reduce the scope of his request in any meaningful manner. The initial estimate made of the time required to identify documents likely to fall within the scope of the request, 68 hours, was a reasonable one. Time spent considering the documents, preparing a schedule, considering whether to claim any and what exemption, and undertaking necessary consultations is, I consider, likely to take the time required to more than 100 hours.
I accept that the work involved in processing Mr Altaranesi amended request would substantially and unreasonable divert SSWAHS resources. As a result I consider that the deemed refusal should be affirmed.
I add that, if I were reviewing the delayed decision, I would affirm it for the same reasons.
Other matters
Two other matters which were canvassed in the course of the hearing require comment.
First, Mr Altaranesi's vociferous complaints that SSWAHS required him to produce certified copies of his proof of identity, and refused to note them when offered. I have already said that there are conflicting versions - given by Mr Altaranesi, his daughter, and the SSWAHS - as to what occurred when Mr Altaranesi sought to present his ID to Ms Pan. It is not necessary for me to resolve that conflict for the purposes of these proceedings. I do, however, note that in evidence Mr Altaranesi agreed that he had not made arrangements to present his ID before seeking to present them to Ms Pan.
Mr Altaranesi placed significant weight on the instructions in The NSW FOI Manual regarding proof of identity. Para 1.5.8 to 1.5.11 provide -
1.5.8 In some cases it is essential to be sure of the identity of the applicant. (For guidance, see 'Identification Procedures' at Appendix F).
1.5.9 In these cases staff should require proof of identity before making copies of documents available or before allowing perusal of files.
1.5.10 As well, since different fees apply to applications for personal information, agencies and Ministers' offices will need to know the applicant's identity to determine the relevant fees. The same proof of identity should be required.
1.5.11 To minimise the risk of identity theft, the Office of the NSW Privacy Commissioner recommends that, if agencies consider it necessary to keep a record of documentation used to verify an applicant's identity, they should do so by way of a notation rather than by photocopying or scanning original documents.
He argued that this required that SSWAHS to note, rather than require certified copies of, his proof of identity. These paragraphs of the Manual, however, are not binding on agencies. More importantly, I question their applicability to a situation in which the person who seeks to have his identify noted, is subject to a banning order prohibiting him from entering the premises where he seeks to tender his proof of identity (save in defined circumstances). I think it also important to observe that on Mr Altarenesi's own evidence Ms Pan was under instructions from the Director of Human Resources not to speak with him (see Affidavit of Tareq Altaranesi sworn 6 October 2010 (No 5)).
Finally, I note that Mr Altaranesi sought a refund of the fee he paid for his internal review. Given that Mr Altarenesi's amended request was refused initially under s 25(a1) and was then the subject of a deemed refusal, I do not agree that Mr Altaranesi is entitled to a refund of the fee paid for his internal review. The deemed decision was not substantially different to the original decision: see clause 7(3) of the Freedom of Information (Fees and Charges) Order 1989.
Conclusion
The deemed decision to refuse Mr Altaranesi access to documents is affirmed.
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Decision last updated: 08 March 2011
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