Avery v Attorney General's Department of NSW
[2009] NSWADT 171
•3 July 2009
CITATION: Avery v Attorney General's Department of NSW [2009] NSWADT 171 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Stephanie Tatiana Patricia Avery
Attorney General's Department of NSWFILE NUMBER: 083295 HEARING DATES: 27 January 2009 SUBMISSIONS CLOSED: 3 February 2009
DATE OF DECISION:
3 July 2009BEFORE: Montgomery S - Judicial Member LEGISLATION CITED: Births Deaths and Marriages Registration Act 1995
Freedom of Information Act 1989CASES CITED: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140
A-G's Department v Cockcroft (1986) 64 ALR 97
Cheney v Sydney West Area Health Service [2008] NSWADTAP 29
Department of Education and Training v Mullett and Randazzo (No 2) [2002] NSWADTAP 29
Sobh v Police Force of Victoria (1994) 1 VR 41
University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
White v NSW Department of Education and Training [2009] NSWADT 154REPRESENTATION: APPLICANT
RESPONDENT
In person
M DellaPozza, solicitorORDERS: 1. The determination is set aside insofar as it applies to the refusal to grant access to the document ‘Procedures to Implement Proof of Identity Policy’. In its place the determination is made that the document is to be released
2. The application is otherwise dismissed.
REASONS FOR DECISION
1 On 10 July 2008, the applicant applied to the respondent under the Freedom of Information Act 1989 ("the FOI Act') for copies of documentation related to records of her personal information and the transactions made by the NSW Registry of Births, Deaths and Marriages ("the Registry"). The request was in the following terms:
- 1. copy of all documents in files for the transactions made on 29th December 1997, 06 December 2007, 11 December 2007 and 09 January 2008 including those issued by BDM Registry such as receipts, invoices, notes etc.
2. please, give me access to sight original documents in my file(s);
3. copy of all electronic screens in respect of the above transactions/dates;
4. please, give me access to oversee original electronic records in respect of the above personal transactions.
2 On 11 July 2008, the applicant applied to the respondent under the FOI Act for information in the following terms:
- Please give me information if any transactions had been made by [the Registry] for the customer with the following names:
1. Avery, Stephanie Tatiana Patricia
2. Avery, Stephanie Tatiana
3. Orechkina, Tatiana Igorevna
4. Orechkina, Tatiana
3 On 22 July 2008, the applicant applied to the respondent under the FOI Act for information in the following terms:
- all internal and external policies, rulings and other by-laws of [the Registry].
4 The respondent determined those applications on 30 July 2008 and provided the applicant with access to a number of documents. The applicant was invited to inspect the documents. Access to 17 specified documents was denied on the grounds that they were "exempt documents" for the purposes of section 25(1)(a) of the FOI Act. The respondent asserted that 16 documents were exempt pursuant to clause 10 of Schedule 1 to the FOI Act and another document was exempt pursuant to clause 9 of Schedule 1.
5 The applicant sought an internal review of that determination. The internal review affirmed the original determination and the applicant applied to the Tribunal for review of the determination. The application to the Tribunal is a narrow one.
6 There are four issues that are raised for determination by the application to the Tribunal:
- 1. whether the Tribunal has the power to make an order granting the applicant access to the Registry's computer system (where the applicant has already been provided with the information contained in that computer system in hardcopy form);
2. if the Tribunal does have this power, whether it should make this order;
3. whether the Registry has properly withheld the Procedures to Implement Proof of Identity Policy document; and
4. whether the Tribunal has jurisdiction to make any orders in relation to the question of whether the search conducted by the respondent was sufficient.
Relevant legislation
7 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government.
8 Section 6 of the FOI Act provides a number of definitions. In relation to the meaning of the term policy document it provides:
- policy document , in relation to an agency, means:
(a) a document containing interpretations, rules, guidelines, statements of policy, practices or precedents, or
(b) a document containing particulars of any administrative scheme, or
(c) a document containing a statement of the manner, or intended manner, of administration of any legislative instrument or administrative scheme, or
(d) a document describing the procedures to be followed in investigating any contravention or possible contravention of any legislative instrument or administrative scheme, or
(e) any other document of a similar kind,
that is used by the agency in connection with the exercise of such of its functions as affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject, but does not include a legislative instrument.
9 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.
10 Section 53 of the FOI Act provides:
- 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 or 43 may apply to the Tribunal for a review of the determination.
…
(3) For the purposes of this section, a person is aggrieved by a determination:
(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that:
(i) an agency or Minister refuses to give the person access to a document, or
(ii) access to a document is to be given to the person subject to deferral, or
(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or
(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or
(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or
(b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies—if:
(i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or
(ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or
(c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49—the determination is to the effect that an agency or Minister refuses to amend the agency’s records or that Minister’s records, as the case may be, in accordance with the application,
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.
...
11 Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that its determination was justified.
12 Clause 4(1)(e) of Schedule 1 of the FOI Act provides:
- 4 Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
…
(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or
13 Clause 16(a)(iv) of Schedule 1 of the FOI Act provides:
- 16 Documents concerning operations of agencies
A document is an exempt document if it contains matter the disclosure of which:
(a) could reasonably be expected:
…
(iv) to have a substantial adverse effect on the effective performance by an agency of the agency’s functions, or
14 Section 6 of the Births, Deaths and Marriages Registration Act 1995 (“the BDMR Act”) provides:
- 6 Registrar’s general functions
The Registrar’s general functions are:
(a) to establish and maintain the registers necessary for the purposes of this Act, and
(a1) to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register, and
(b) to administer the registration system established by this Act and ensure that the system operates efficiently, effectively and economically, and
(c) to ensure that this Act is administered in the way best calculated to achieve its objects.
15 Section 46 of the BDMR Act provides:
- 46 General access to Register
(1) The Registrar may, on conditions the Registrar considers appropriate:
(a) allow a person or organisation that has an adequate reason for wanting access to the Register, access to the Register, or
(b) provide a person or organisation that has an adequate reason for wanting information from the Register, with information extracted from the Register.
(2) In deciding whether an applicant has an adequate reason for wanting access to the Register, or information extracted from the Register, the Registrar must have regard to:
(a) the nature of the applicant’s interest, and
(b) the sensitivity of the information, and
(c) the use to be made of the information, and
(d) other relevant factors.
(3) In deciding the conditions on which access to the Register, or information extracted from the Register, is to be given under this section, the Registrar must, as far as practicable, protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy.
16 Section 49(1)(a) of the BDMR Act provides:
- 49 Issue of certificate
(1) On completing a search of the Register, the Registrar may issue a certificate:
(a) certifying particulars contained in an entry, or
….
17 Section 56, in Part 9 of the BDMR Act provides:
- 56 Review by the Administrative Decisions Tribunal
A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Administrative Decisions Tribunal for a review of the decision.
18 The Tribunal's powers on review are found in section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). Section 63 of the ADT Act provides that 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. The Tribunal may exercise all of the functions that are conferred or imposed on the respondent.
The respondent’s case
19 The respondent relies on the evidence of Ms Sharon Swinboume, the Assistant Registrar for Registrations in the Registry. Mr DellaPozza appeared on behalf of the respondent. He filed and served written submissions and appeared at the hearing and made oral submissions updating the progress of the matter.
20 During the course of these proceedings Mr DellaPozza obtained instructions that significantly changed the nature of the proceedings. As a consequence of those instructions, much of the material filed by the parties is no longer relevant.
21 Mr DellaPozza asserts that the Tribunal has no jurisdiction to review a decision about the form that access should take. In support of that assertion he referred to the decision in Cheney v Sydney West Area Health Service [2008] NSWADTAP 29 where the Appeal Panel stated at paragraphs [8] – [11]:
- 8 We deal now with the first ground of appeal which was that the Tribunal erred in refusing to allow Mr Cheney to view the original documents even with the exempt material disguised. By way of background, the reason Mr Cheney says that he made that request was that he alleged that documents obtained from NSW Police had been fabricated and that by comparing those documents with duplicates or copies held by the SWAHS, he would be able to prove that allegation in the Supreme Court proceedings inquiring into his conviction.
9 In relation to this ground we accept the submission of the SWAHS that the Tribunal had no jurisdiction to determine the manner in which Mr Cheney should be given access to the documents. Mr Cheney’s application was under section 17 of the FOI Act which allows him to request access to documents held by an agency. The agency’s decision not to allow him to view the original documents was made under s 27 of the FOI Act which relates to the forms of access that a person may be afforded.
10 Section 53(3) of the FOI Act sets out the circumstances in which a person is able to apply to the Tribunal for a review of an agency’s decision. In particular, section 53(3)(a)(i) says that:
- For the purposes of this section, a person is aggrieved by a determination:
(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36-if the determination is to the effect that:
(i) an agency or Minister refuses to give the person access to a document
22 However, Mr DellaPozza stated that the respondent has agreed to grant the applicant the access that she has sought, subject to conditions.
23 The applicant wishes to challenge those conditions. However, Mr DellaPozza asserts that the Tribunal has no jurisdiction under the FOI Act to review a decision to impose conditions on the access that is given. He says that a decision to impose conditions is a decision under section 46 of the BDMR Act. He says that the applicant is entitled to seek review of a decision under section 46, but she has not done so. It is therefore not before the Tribunal.
24 Accordingly, he says that the Tribunal is unable to determine any issue concerning conditions imposed on the access that is given.
Issue 3
25 The respondent initially maintained that the Procedures to Implement Proof of Identity Policy document falls within either the exemption in clause 4(1)(e) or that in clause 16(a)(iv) of Schedule 1 to the FOI Act, or both. In asserting these exemptions the respondent relies on the evidence provided by Ms Swinbourne.
26 However, the respondent subsequently conceded that the information contained in the document was already publicly available and so it agreed to release the document to the applicant.
Issue 4
27 Mr DellaPozza stated that the respondent has no further documents that fall within the scope of the application. However, he asserts that the Tribunal has no jurisdiction to deal with that issue as a result of the Court of Appeal decision of Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 ("ADT v Commerce"). Accordingly, he says that the Tribunal lacks the jurisdiction to hear this aspect of the application.
The applicant’s case
28 The applicant provided detailed submissions in regard to each of the issues to be determined. In light of the respondent’s agreement to provide her the form of access that she was seeking, albeit subject to conditions, and to release the Procedures to Implement Proof of Identity Policy document, it is unnecessary to consider most of those submissions in detail.
29 In relation to the issue of the conditions that have been imposed on the form of access that has been offered to her, the applicant contends that Part 9 of the BDMR Act contains expressed conferral of jurisdiction on the Tribunal over review of a decision of the Registrar. She submits that if the decision were made and appealed under the BDMR Act the Tribunal would have general power to review and overwrite the decision of the administrator and to order that she be given general access to the Register. She submits that this is an issue that the Tribunal can determine under the FOI Act.
30 In relation to issue 3 she submitted while she appreciates the balance of the approach of the respondent to the assessment of the Policy as an exempt document, and in particular the concern about possible fraud, she asserts that she has ‘intensive interest’ in obtaining access to the Procedures to Implement Proof of Identity Policy.
31 The applicant contends that the current operation of the Registry facilitates fraud where a change of name is concerned. She says that the Registry accepts documents with the names that differ from the previously registered names of the applicants with no questions asked about when, where and how the documents acquired.
32 She disputes the respondent’s assertion that the Procedures to Implement Proof of Identity Policy could be used by some person to steal the identities. She accepts that theft of identity could occur in a limited form but contends that it is not likely to be on a large scale. She accepts the possibility of hackers obtaining information but says that relatives and close friends would know the information anyway.
33 The applicant does not accept the respondent’s contention that the document is exempt. She argues that the any prejudice to the procedure that might flow from release of the document is too remote to establish the asserted exemptions. In any event, she submits that the information contained in the document is already publicly available. She submits that the correct and preferable decision is to order release of the document. In light of the respondent’s agreement to release the document, it is not necessary to consider these submissions further.
34 In relation to Issue 4, the applicant submits that the respondent did not give access to other documents that she believes exist and which meet the section 6 definition of 'policy document'. The applicant made no submission in regard to the Court of Appeal decision in ADT v Commerce.
Discussion
Issues 1 and 2
35 I agree with Mr DellaPozza’s submission that the Tribunal has no jurisdiction to review a decision about the form that access should take. In my view, the Appeal Panel decision in Cheney v Sydney West Area Health Service has correctly stated the law in regard to this issue.
36 Accordingly, the application should be dismissed insofar as it applies to that aspect of the determination.
37 I also agree with Mr DellaPozza assertion that the Tribunal has no jurisdiction under the FOI Act to review a decision to impose conditions on the form of access that is given.
38 Section 46 of the BDMR Act gives the Registrar the discretion to decide the conditions on which access to the Register is to be given. The Registrar can impose any conditions that the Registrar considers appropriate. The applicant is entitled to seek review of that decision pursuant to section 56 of the BDMR Act.
39 Section 53(3) of the FOI Act sets out the circumstances in which a person is able to apply to the Tribunal for a review of an agency’s decision. Section 53(3) does not give a person a right to apply to the Tribunal for a review of a decision to impose a condition pursuant to section 46 of the BDMR Act.
40 In my view, if the applicant seeks review of that decision she will need to commence separate proceedings in relation to that issue.
41 Accordingly, the application should be dismissed insofar as it applies to that aspect of the determination.
Issue 3
42 The respondent’s initial decision was to refuse access to the Procedures to Implement Proof of Identity Policy document on the assertion that it was exempt pursuant to clauses
(1)(e) and 16(a)(iv) of Schedule 1 to the FOI Act. However, the respondent subsequently agreed to release the document. I agree with that decision.
43 Accordingly, the determination under review should be set aside insofar as it applies to the refusal to grant access to the document. In its place the determination should be made that the document is to be released.
Issue 4
44 The question of the Tribunal’s power in regard to sufficiency of search issues has been considered in several decisions. I considered it most recently in White v NSW Department of Education and Training [2009] NSWADT 154. I agree with the respondent’s submission in relation to this issue.
45 By virtue of the Court of Appeal decision in ADT v Commerce the Tribunal does not have the jurisdiction to direct the Respondent to search for additional documents other than those it has identified. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the scope of a request for access. Only the Ombudsman can investigate a complaint that an agency has not properly attempted to locate all relevant documents.
46 Accordingly, the application should be dismissed insofar as it applies to that aspect of the determination.
Decision
1. The determination is set aside insofar as it applies to the refusal to grant access to the document ‘Procedures to Implement Proof of Identity Policy’. In its place the determination is made that the document is to be released.
2. The application is otherwise dismissed.
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