Beesley v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 52

CITATION:	Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52
DIVISION:	General Division
PARTIES:	APPLICANT Terence Francis Beesley RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003036
HEARING DATES:
SUBMISSIONS CLOSED:
DATE OF DECISION:	05/03/2000
BEFORE:	Smith MB - Judicial Member
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Preliminary question of jurisdiction
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Re New Broadcasting Ltd and Australian Broadcasting Tribunal (1987) 12 ALD 1 Re Hungerford and Repatriation Commission (1990) 21 ALD 568 Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 Re Wilson and Australian Federal Police (1983) 5 ALD 343 Re Hancock and Department of Resources and Energy (1986) 10 ALN N65 Re Luton and Commissioner of Taxation (1996) 22 AAR 492 Re Smith and Administrative Services Department (1993) 1 QAR 22 Re Khoh and Telstra Corporation Ltd, AAT N96/1594
REPRESENTATION:	APPLICANT In Person RESPONDENT J Tunks, solicitor
ORDERS:	1. The matter should be listed for further directions in the light of these reasons.

1 This matter has been referred to me pursuant to a direction of Deputy President Hennessy given on 30 March 2000, which requires me to determine a preliminary jurisdictional question. This concerns the situation where an agency responds to an application for access to a document under the Freedom of Information Act 1989 (NSW) by determining that “no such document exists”. Grievance with agency responses claiming an inability to locate documents is voiced quite commonly in FOI matters, and it is important to consider whether the Tribunal can provide a remedy.

2 Mr Beesley has applied to the Tribunal for review of what he describes as a decision of the Ombudsman dated 15 December 1999. His application attaches a letter of that date, in which the Ombudsman informs him that he has decided not to take any further action about his complaint. The complaint is described as being that his FOI applications to the Police Service were inadequately answered by a determination that “the only documents concerning you that the Police Service determined are held relates to one entry contained in the Computerised Operational Policing System. These documents were released in full.” The Ombudsman concludes: “I can see no evidence to substantiate your claim that the Police Service is failing to acknowledge the existence of documents that relate to you.”

3 The Ombudsman’s letter informed the applicant: “In accordance with section 53 of the FOI Act, you have a right of appeal to the Administrative Decisions Tribunal (ADT) about the determinations of the Police Service.” I conclude that it is, in fact, this right of appeal which the applicant now wishes to invoke. An alternative view of his application would result in it being dismissed, since the Tribunal has no jurisdiction to review determinations of the Ombudsman, including those on a complaint concerning administrative action taken under the FOI Act. The effect of involving the Ombudsman is, instead, to extend the time limit for appealing to the Tribunal from the agency’s FOI determinations (see ss 52(2) and 54(b)).

4 No issue has been raised in the present case regarding the preconditions to jurisdiction in ss 53(2) and 54. These concern internal review procedures, pending Ombudsman investigations and time limits. The question for me to address is whether the present determinations of the Police Service are determinations which come within s 53(1) so as to be reviewable by the Tribunal (see s 38(1) of the Administrative Decisions Tribunal Act 1997 (NSW)). The questions of construction are, in terms of s 53(1) of the FOI Act, 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)?

5 Both parties have consented to the preliminary question being determined “on the papers”. Mr Beesley has assisted the Tribunal by providing a helpful written submission. Mr J Tunks for the NSW Police Service has informed the Tribunal that “the Respondent elects (sic) make no submissions in relation to the issue of ‘Jurisdiction’”. Such a response should not be encouraged from agency representatives. The Tribunal can only function properly if it is assisted with substantive submissions from agency representatives on significant questions of fact and law arising for its determination, particularly when the questions go to the Tribunal’s jurisdiction and the applicant is not represented by a lawyer (c.f. the observations of Davies J in Re New Broadcasting Ltd and Australian Broadcasting Tribunal (1987) 12 ALD 1 at 11 and also those cited in Re Hungerford and Repatriation Commission (1990) 21 ALD 568 at 577).

6 The preliminary question is solved by a proper understanding of the scheme of the FOI Act. Section 16(1) gives “a person a legally enforceable right to be given access to an agency’s documents in accordance with this Act.” “Agency’s document means a document that is held by the agency” (s 6(1)). The right is exercised by making an application or request for access in accordance with the requirements of s 17. These include providing “such information as is reasonably necessary to enable the document to be identified”. The agency is required to assist this process of identification (s 19(1)) and can transfer the application to another agency which “holds” the document (s 20). These provisions confirm that the right of application extends to “documents which may reasonably be expected to be in the possession of the agency” as well as to documents which the applicant can prove to be in its possession (see Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 at 166). The Act thereby provides in the widest sense a procedure for discovery of agency documents.

7 A mandatory duty to determine the application is imposed by s 24 in the following terms:

24 Determination of applications
(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.

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.

9 This construction is consistent with the language of s 24(2), which provides for a deemed determination in the event that the agency procrastinates. The deemed decision is one “refusing access to the document to which [the application] relates”. These words direct attention to the description of the document sought in the application, not to documents in fact held by the agency. A similar deemed determination under s 24(1) arises if internal review is delayed (see s 34(6)). If review is sought of a deemed determination, the review body acquires the duty to make findings on all issues arising on the original application for access, including whether relevant documents are held by the agency (see ss 34(4) and s 63(1) of the Administrative Decisions Tribunal Act 1997 (NSW).

10 I find no inconsistency with 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 opening words of s 25(1) indicate that the section does not purport to be exhaustive of the grounds on which access can be refused under s 24(1), and the section addresses only those grounds which may arise after the location of documents covered by the request (or in the case of s 25(1)(a1) a significant number of such documents). It therefore does not address the antecedent locating of documents identified in the request, and a determination flowing from a finding of “does not exist”.

11 That a determination under s 24(1)(a) refusing access may do so on an implicit ground additional to one of those expressly listed in s 25(1) is confirmed in the generality of the language of s 28(2)(e). This requires a notice of a determination to specify:

“(e) if the determination is to the effect that access to a document is refused:
(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”

12 This provision appears to confirm that s 24(1) provides 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.

13 My interpretation of all the relevant provisions, is that the FOI Act provides a procedure which necessarily entails a duty to make findings on what are the documents “held by the agency” which are identified in the terms of a request. Such findings arise at preliminary stages and also, ultimately, as essential elements of a determination on the grant or withholding of access to documents in response to the request. In the absence of any express provision for their making, the duty to make them is found within the general duty to determine the request for access, i.e. within s 24(1). 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). The applicant for access is aggrieved by a “determination … to the effect that … an agency … refuses to give the person access to a document”, and therefore has standing to seek review under s 53(3)(a)(i). When reviewing the determination, the Tribunal must 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, or additional documents, falling within its terms are not “held” by the agency. As with other grounds for refusing access, the onus is on the agency to justify such a conclusion (see s 61).

14 In my opinion, this is the usual interpretation of Australian FOI legislation. It was described by Professor L J Curtis in the ACT Administrative Appeals Tribunal in Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 at 782-783:

"11. A request made under section 14 of the FOI Act to an agency is a request for access to a document of the agency, that is, a document in the possession of the agency - see the definition of "document" in section 4(1) of Act. The respondent agency has not denied the existence of the 2 documents in question. Although it appears that the respondent agency may not have been the agency that dealt with the grant application when it was made, it seems that it is the agency that has inherited the function and therefore the files. The duty of the agency, in response to a request for access is to grant access to the documents in accordance with the request unless the documents are exempt or there is another ground under the Act entitling the agency to refuse access in accordance with the request. 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. The FOI Act expressly deals with the case where an agency delays making a decision. In such a case, the applicant is entitled to appeal to the Tribunal as if the request had been refused. That is a case where the agency makes no decision. Hence it is clear that an agency is under an obligation to make a decision on a request, either granting the request or refusing the request.
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.


13. The verb "refuse" in its transitive form, is defined in the Macquarie Dictionary 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. The scheme of the Act is therefore a coherent one. If an agency simply fails to respond to a request, the applicant is entitled to apply to the Tribunal for review as if access had been denied. The task for the Tribunal in such a case is to inquire whether any ground exists on which the agency might have denied access, and the onus is on the agency to establish the existence of such a ground. If, on the other hand, the agency takes a positive step which has the consequence of denying access in accordance with the request, the applicant, after first going through the internal review process, may apply to the Tribunal for review of the decision. In that case, the task of the Tribunal is the same as before; to inquire whether any ground exists on which the applicant might properly have been denied access. Again, the onus is on the agency to establish the correctness of its decision. If the reason for the decision was that the document did not exist or was lost or was otherwise not in the possession of the agency, the agency must produce such evidence as will satisfy the Tribunal of the relevant state of fact.

15 The alternative interpretation of the relevant provisions of the FOI Act would leave the Act, including its review mechanisms, to function only in relation to documents which an applicant could establish to exist in the possession of an agency or which an agency admitted to being able to locate. This would ignore the uncertain world in which agency documents are kept, and would fail to give effect to the Act’s object of providing a scheme for the discovery of documents suspected of existing and for external supervision of that process of discovery.

16 This was pointed out in an early case in the Commonwealth Administrative Appeals Tribunal, Re Wilson and Australian Federal Police (1983) 5 ALD 343 at 350-1:

“26. There are … indications within the Act that the expression “refusal to grant access” is used not only in relation to documents that are known to exist but also in circumstances where a requested document has not been located, may not be capable of being located or may not even exist (see for example ss 24 and 56). Furthermore, it requires a high degree of confidence in the filing system of large agencies to assume that documents can always be readily identified and located upon request. The probabilities are that, in at least a percentage of cases where requested documents are said to be incapable of being found, those documents nevertheless do exist and have simply been incorrectly filed or filed under some unexpected reference. Thus a claim by an agency that a requested document cannot be found does not necessarily mean that no such document exists. …
30. Where the requested documents cannot be found, the Act is silent as to the appropriate decision in such a case. If Mr Pose is correct in his submission that a decision in such circumstances is not a decision “refusing to grant access to a document in accordance with a request” within the meaning of s 55(1)(a) of the Act, there is potentially a large area in which decisions of responsible Ministers and agencies in relation to requests for access will be immune from external scrutiny before the Tribunal and will only be reviewable internally or by complaint to the Ombudsman. If such decisions were reviewable before the Tribunal, it does not follow that the Tribunal would itself undertake an examination of the agency’s filing system. But circumstances may well arise where the Tribunal might consider it appropriate to give directions as to further avenues of enquiry that ought properly be pursued (see s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth)).”

17 Consistently with the above reasoning, the Commonwealth AAT has found that its jurisdiction to review a refusal of access extends to examining an agency’s failure to identify and locate documents as requested, and has held that “the task before the Tribunal will be to decide whether the search undertaken was a sufficient one in all the circumstances” (see Re Hancock and Department of Resources and Energy (1986) 10 ALN N65). In my opinion, no doubt arises as to the authority of these cases by reason of amendments in 1991 to the Commonwealth FOI Act making express provision for refusal of access on the ground of inability to find a document and for review of such a decision (see ss 24A and 55(5) and Re Luton and Commissioner of Taxation (1996) 22 AAR 492 at 495-6). The Commonwealth line of authority has been followed in Queensland (see Re Smith and Administrative Services Department (1993) 1 QAR 22 at 27-41), but the trend of Victorian cases is to the contrary (see Kyrou (ed) “Victorian Administrative Law” at [2490]). I prefer to follow the Commonwealth authorities.

18 For the above reasons, it is my opinion that an application to the Tribunal under s 53(1) of the FOI Act can extend to seeking review of a determination under s 24 which refuses to give access to one or more documents described in an application under s 17 on the ground that such a document is not, or such documents are not, “held” by the agency by reason of their non-existence or otherwise.

19 To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate the custodians of agency documents. All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant’s suspicions and the adequacy of the agency’s endeavours to satisfy them. If left unsatisfied by the agency’s evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW).

20 I accept that applicants may well find a better and sufficient remedy in an Ombudsman complaint under ss 52 of the FOI Act. However, as the present case suggests, the grievance may linger, and some applicants may find the open hearing procedures of the Tribunal more reassuring as a mode of external review. Experience from the Commonwealth FOI Act suggests that a Tribunal can, indeed, at times provide an effective mechanism for locating documents. There is a significant discipline in the preparation and presentation to the Tribunal of evidence which explains the agency’s relevant document management system and how adequate searches were conducted therein. When witnesses have to be produced for examination on their searches, it is far from unknown for missing documents suddenly to be discovered shortly before a hearing (e.g. Re Khoh and Telstra Corporation Ltd, AAT N96/1594, 21 January 1998). Indeed, this may already have occurred in the present matter, since the file contains a letter dated 10 March 2000 from the respondent enclosing “documents to be filed as a result of the further search of records by the Police service as requested by Mr Beesley”. In such circumstances, a hearing before the Tribunal may serve important purposes of administrative review even if it elicits only evidence showing a perfectly conducted search by the agency’s FOI officers who have looked in the right places and interrogated the right people.

21 For the above reasons, I have concluded that the Tribunal has power in the present application to examine whether the search undertaken by the Police Service in response to the applicant’s FOI application was “a sufficient one in all the circumstances” (c.f. Re Hancock (supra)). The application should be listed for directions, inter alia, for the filing of relevant evidence by the parties and for a hearing date.