Bienstein and Minister for Justice and Customs
[2004] AATA 895
•26 August 2004
CATCHWORDS – JURISDICTION – FREEDOM OF INFORMATION – transfer of Freedom of Information Request – whether transfer valid – whether Tribunal has jurisdiction to review the decision to transfer the request – whether a deemed decision has been made to refuse access to documents – Tribunal has no jurisdiction
Freedom of Information Act 1982 ss. 15, 16, 24A, 30A, 54, 55 and 56
Evidence Act 1995 s. 160
Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197
Re Bienstein and Attorney-General (Commonwealth) V2003/1115
DECISION AND REASONS FOR DECISION [2004] AATA 895
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2003/1133
GENERAL ADMINISTRATIVE DIVISION )
Re HELEN BIENSTEIN
Applicant
And MINISTER FOR JUSTICE & CUSTOMS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 26 August, 2004
Place: Melbourne
Decision:The Tribunal has decided that it does not have jurisdiction in this matter.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 13 October, 2003, the applicant, Mrs Helen Bienstein, applied for review of two decisions that she states have been deemed to have been made by the respondent, the Minister for Justice and Customs (“Justice Minister”) pursuant to the Freedom of Information Act 1982 (“FOI Act”). Both decisions relate to requests made to the Minister on 5 September, 2003:
under s. 15 of the FOI Act “… for release of all documents in relation to me or that came into existence because of me or because of my dealings with any of the three arms of government, both Commonwealth and State”; and
under s. 30A seeking “… full remission of fees and charges for this and for all my FOI requests on the basis that any such payment would cause me financial hardship …”.
On the Justice Minister’s behalf, Mr Bennett, who is the Director of the FOI Section in the Attorney-General’s Department (“Department”) submits that Mrs Bienstein’s request was transferred from the Justice Minister to the Department on or about 25 September, 2003 and that a decision was made regarding that request by the Attorney-General’s Department. That decision is the subject of another application in the Tribunal numbered V2003/1268. It was agreed between the parties that the matter would be decided on the papers.
THE ISSUES
There are five issues:
May the Justice Minister transfer the requests even if Mrs Bienstein does not want them to be transferred?
If they are transferred, are:
(i)the decisions to transfer reviewable; and
(ii)are there inherent decisions to refuse the requests that are reviewable?
Did the Justice Minister transfer the requests to the Department?
Did the Justice Minister transfer the requests pursuant to s. 16 of the FOI Act?
Is the Justice Minister deemed to have made a decision refusing Mrs Bienstein’s requests?
CONSIDERATION
The Tribunal’s jurisdiction
In Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197, I set out the steps that must be taken to ascertain whether or not the Tribunal has jurisdiction to review a decision (at pars. 8-11). In this case, the answer to the first step involving identification of the decisions is clear. Mrs Bienstein seeks review of decisions that she submits are deemed to have been made by the Justice Minister. Section 55(1) of the FOI Act specifies the decisions in respect of which a person may apply to the Tribunal. Those decisions include those made under ss. 15 and 30A. Generally speaking, a person may not apply if he or she is entitled to apply for review of the decision under s. 54 i.e. to apply for internal review. The application under s. 55(1) is then made in respect of the decision made on internal review and not the initial decision (s. 55(2)).
In setting out these reasons, I have followed the same format that I adopted in Re Bienstein and Attorney-General (Commonwealth) V2003/1115. I will not, however, repeat the reasons for reaching the conclusions that I have on the law but adopt my reasons in the other decision. I will set out my reasons for finding the facts that I have found and the conclusions that I consider those facts lead to on the law.
When were Mrs Bienstein’s requests received by the Justice Minister?
On the basis of the copy of Mrs Bienstein’s requests, I find that they were prepared as a facsimile message but that they were sent as a letter. I have reached that conclusion as they enclosed a cheque for $30 to cover the application fee in case the fee was not waived and in order to avoid delays. Although I do not have any evidence of the day on which the letter was sent, I have assumed for the purpose of answering the question I have posed that they were posted on the day that they were dated i.e. 5 September, 2003. Using s. 160 of the Evidence Act 1995 as a guide for it does not apply to the Tribunal, it would have been received on 11 September, 2003 i.e. four working days after having been posted.
Was the Attorney-General entitled to transfer the requests under s. 16 without consulting Mrs Bienstein?
In her request to the Justice Minister, Mrs Bienstein specifically asked that the request not be transferred. Was the Justice Minister entitled to transfer the requests regardless of her request? In my reasons given in Re Bienstein and Attorney-General (Commonwealth), I have considered this matter and concluded that that he was. I will not repeat my reasons.
Is there a reviewable decision under s. 24A inherent in a decision to transfer under s. 16?
Mrs Bienstein submitted that there is inherent in a decision to transfer a request under s. 16 a further decision. That decision is made under s. 24A and is to the effect that the documents do not exist or cannot be found. Again I adopt my reasons in Re Bienstein and Attorney-General (Commonwealth) and conclude that it cannot be inferred that, implicit in a decision to transfer under s. 16(1), is a decision to refuse a request under s. 24A.
Does the Tribunal have jurisdiction to review a deemed decision under s. 15?
For the reasons that I gave in the related case, application of the provisions of the FOI Act in this case leads to the conclusion that, if the Justice Minister is deemed to have made a decision under s. 56(1) in relation to a request under s. 15(1), Mrs Bienstein is entitled to make an application for its review in the Tribunal. If the request has been transferred to the Department and it is deemed to have made a request, she is also entitled to apply to the Tribunal. The internal review provisions in s. 54 do not have any application in either case.
Does the Tribunal have jurisdiction to review a deemed decision under s. 30A?
As I stated in the related case, application of the provisions of the FOI Act in this case leads to the conclusion that, if 30 days have passed since a request for remission was made under s. 30A, s. 30A(1B) provides that the agency or Minister to whom the request has been made is deemed to have made a decision that no part of the application fee is to be remitted. Where the request for remission has been made to a Minister, s. 54(1) has no relevance for the reasons I have already given regarding a deemed refusal of a request for access under s. 15(1). The application would be made directly to the Tribunal for review of the deemed decision under s. 55(1).
Where the decision is deemed to have been made by an agency under s. 30A, there is no provision equivalent to that in s. 54(3) dispensing with internal review where a request for access has been deemed to have been refused. That is to say, there is no provision that s. 54(1) does not apply in relation to a decision deemed to have been made under s. 30A(1). That means that, once a request to remit an application fee is deemed to have been refused, the applicant must apply for review under s. 54. Once a decision has been made under s. 54, an application may be made to the Tribunal (s. 55(1)). If a decision is not given within the time limits set out in s. 55(3), the effect of that provision when read with s. 55(4) is that an application may be made for review of the deemed decision.
Did the Justice Minister transfer the requests?
Did the Justice Minister transfer the requests? I find on the papers that, on 25 September, 2003, Ms Linda Reynolds, who was the Chief of Staff for the Justice Minister, sent an email to Ms Heidi Johnston, who was then the Departmental Liaison Officer in the Justice Minister’s office. Ms Johnston sent her own email to Mr Bennett. On the basis of those two emails, I am satisfied that, on behalf of the Justice Minister, they asked Mr Bennett, on behalf of the Department, to accept the transfer of Mrs Bienstein’s requests. I further find that they did so on the basis that “… the office has no record of any Ministerial correspondence to or from Mrs Bienstein …”.
On the basis of his email to Ms Johnston on 25 September, 2003, I find that Mr Bennett accepted the transfer of the request. Mr Bennett went on to make a decision regarding the transferred requests when he decided Mrs Bienstein’s request to the Department. That decision is the subject of another application in the Tribunal numbered V2003/1268.
There is no indication in the material that I have that either Ms Reynolds or Ms Johnston advised Mrs Bienstein of the transfer in accordance with s. 16(4).
In view of this exchange, I find that Mrs Bienstein’s requests were transferred to the Department on 25 September, 2003.
Were Mrs Bienstein’s requests transferred in accordance with s. 16?
Just as it did in Re Bienstein and Attorney-General (Commonwealth), my conclusion leaves open the question whether Mrs Bienstein’s requests were transferred pursuant to s. 16. That is so because, on the exchange of correspondence that I have been given, there is no indication that there was any consideration given to whether s. 16(1)(a) was fully satisfied or whether s. 16(1)(b) was considered. The only consideration that appears on the face of the correspondence relating to the transfer was that the documents were not in the possession of the Justice Minister. There is no indication that consideration was given to whether the documents were, to the knowledge of the Justice Minister, in the possession of the Department to which the requests were transferred. There is no indication that there was any consideration given to whether the subject-matter of the documents is more closely connected with the functions of the Department than with those of the Justice Minister to whom the requests were made. There is no evidence that there was compliance with s. 16(4) to the extent of informing Mrs Bienstein of the transfer.
I adopt my reasons in Re Bienstein and Attorney-General (Commonwealth) on the law relating to this question. On the material that I have and there being no reference to whether or not the Justice Minister or his staff made any enquiries about whether the documents requested by Mrs Bienstein were in the Department’s possession, I consider that this is enough to set aside any presumption that the transfer was properly effected under s. 16(1)(a) if it was effected at all under that section. I go further, and find that I am not satisfied that the requirement of s. 16(1)(a) that, to the knowledge of those in the Justice Minister’s office, the documents sought in Mrs Bienstein’s request were in the Department’s possession. On the material that I have, I find that the question was never asked of the Department and those in the Justice Minister’s office did not know whether the Department held any documents at the time.
Section 16(1)(b) is a different matter. It does not raise a question of whether the Justice Minister knew the whereabouts of the documents sought by Mrs Bienstein. It does not raise a question whether the documents sought actually exist. Instead, it raises a question of the subject-matter of the documents sought. Was that subject-matter more closely connected with the functions of another agency than with those of the Justice Minister? It is clear from the face of Mrs Bienstein’s request for access that a considerable number of agencies could have functions closely connected with the subject-matter of the documents for Mrs Bienstein sought access to “…all documents in relation to me or that came into existence because of me or because of my dealings with any of the three arms of government, both Commonwealth and State”. I understand Mrs Bienstein to be referring to her dealings with persons or agencies in all three arms of government. That is a wide range of agencies.
Section 16(1)(b) does not require an agency to identify the agency to whose functions the request is most closely related although there is some practical merit in its doing so in order for a request to be handled most expeditiously. It only requires that the subject-matter of a document be more closely related to the functions of the agency to which it transfers the request than its own. There is no requirement that the agency transferring the document actually have possession of it. All that s. 16(4) requires is that the agency transferring the request also transfer the document “… if it is necessary to do so in order to enable the other agency to deal with the request …”. The reference in s. 16(1)(b) to the document whose subject-matter is under consideration must be a reference to the document to which access is sought in the request. That is the only reference. There is no need for an agency to have possession of a document before it may decide whether the subject-matter of that document, if it were in its possession, is more closely related to the functions of another agency.
In this case, the functions of the Department must, on any commonsense understanding of the structure of government, include its dealing with and responding to communications to it from members of the public and complaints regarding matters of administration. The Justice Minister and those in his personal office also have that function to a certain extent but, on the whole, their function is more closely associated with wider issues of policy in the narrow compass of the Ministry rather than with day to day administration. Given the breadth of Mrs Bienstein’s request, I am satisfied that the subject-matter of the documents she sought is more closely related to the functions of the Department than of the Justice Minister.
This means that the request for access to the documents could be transferred pursuant to s. 16(1)(b). As I have found that the request was actually transferred and that it could properly be transferred to the Department pursuant to s. 16(1)(b), I am satisfied that the Justice Minister’s office purported to transfer it pursuant to that provision. The request for remission of fees was ancillary to the request for access to documents and so I find that it was necessarily transferred at the same time.
As in Re Bienstein and Attorney-General (Commonwealth), I have also considered whether failure to notify Mrs Bienstein of the transfer renders that transfer invalid. For the reasons I gave in that case, I find that the failure does not render the transfer invalid.
Were the requests deemed to have been refused while in the Justice Minister’s possession?
As I have previously stated, I do not have any evidence of the day on which the request was sent, I have found that the requests were received by the Justice Minister by 11 September, 2003. Given that the date of the transfer of Mrs Bienstein’s requests to the Department was 25 September, 2003, I find that they were transferred within 30 days of the Justice Minister’s receiving them. Therefore, while they were in his possession, he was not deemed to have made a decision in relation to either request. As he has not made decisions, applications cannot be made under the FOI Act to review them. As the Tribunal only has jurisdiction if a decision has been made or deemed to have been made, it does not have jurisdiction in this matter.
For the reasons I have given, I find that the Tribunal does not have jurisdiction in this matter.
I certify that the twenty-four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ...............................................................
R. Crook Associate
Date of Hearing on the Papers 12 January, 2004
Date of Decision 26 August, 2004
For the Applicant self
For the Respondent Mr M. Bennett
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