Challita v NSW Ombudsman
[2008] NSWADT 238
•25 August 2008
CITATION: Challita v NSW Ombudsman [2008] NSWADT 238 DIVISION: General Division PARTIES: APPLICANTS
RESPONDENT
Jolanda Challita and Peter Challita
NSW OmbudsmanFILE NUMBER: 083065 HEARING DATES: On the papers SUBMISSIONS CLOSED: 9 June 2008
DATE OF DECISION:
25 August 2008BEFORE: Montgomery S - Judicial Member MATTER FOR DECISION: Jurisdiction LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Ombudsman Act 1974CASES CITED: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140
Cianfrano v NSW Ombudsman [2007] NSWADT 273
DF v Director General Attorney General's Department [2002] NSWADT 164
Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147
McGuirk v NSW Ombudsman (N03) [2007] NSWADT 269
Raethel v Direct General Department of Education and Training [1999] NSWADT 108REPRESENTATION: APPLICANT
RESPONDENT
In person
M Borthwick, agentORDERS: The application is dismissed for want of jurisdiction.
REASONS FOR DECISION
1 In January 2008 the Applicants applied to the NSW Ombudsman (“the Ombudsman”) under the Freedom of Information Act 1989 (“the FOI Act”) for certain documents relating to their complaints to the Ombudsman. The requested:
2 The Ombudsman identified a number of documents (“the documents”) as falling within the scope of the request but access to the documents was refused on the basis that they were documents relating to the exercise of the investigative, complaint handling and reporting functions (“exempt functions”) of the Ombudsman. It was asserted that the Ombudsman is exempt from the operation of the FOI Act in relation to the documents by virtue of section 9 and schedule 2 of the FOI Act. That decision was affirmed on internal review and the Applicants lodged an application for external review of the decision with the Tribunal.
“All documents, notes, files, memoranda, email communications, written communications, briefings, submissions etc., in relation to the complaints lodged on behalf of Danny, Katie and Amanda Challita by Jolanda & Peter Challita from December 2002 to date together will (sic) all documents and information regarding the subsequent reviews, determinations and/or appeals.”
3 The Applicant applied to this Tribunal for external review of the Ombudsman’s decision. The parties agreed to have the matter dealt with by the Tribunal on the papers. It was further agreed between the parties that in light of the decision of Simpson J in Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 (“ICAC v McGuirk”) the issue for determination is whether the Ombudsman has properly categorised the documents as documents relating to the exempt functions set out in schedule 2 of the FOI Act.
Applicable legislation
4 Section 24(1)(a) of the FOI Act provides for the determination of applications. Section 53(1) provides that a person who is aggrieved by a determination made under section 24 or 43 may apply to the Tribunal for a review of the determination. Section 53(3)(a)(i) provides that a person is aggrieved by a determination if the determination is to the effect that access to a document is refused.
5 Section 9 of the FOI Act provides:
6 In so far as is relevant, schedule 2 of the FOI Act provides:
“9 Certain bodies etc exempt from operation of Act
Any body or office specified or described in schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act.”
The Ombudsman’s case
“SCHEDULE 2 – Exempt bodies and offices
(Section 9)
…
The office of Ombudsman — the complaint handling, investigative and reporting functions of that office.”
7 The Ombudsman relies upon the confidential and open affidavits of its General Team Manager, Anne Radford, sworn on 24 April 2008. The documents in issue were tendered to the Tribunal on a confidential basis.
8 Section 75 of the Administrative Decisions Tribunal Act 1997 and section 55 of the Freedom of Information Act 1989 empowers the Tribunal to hear evidence on a confidential basis and in the absence of the public, the review Applicants and the applicant's representative.
9 The Ombudsman submits that the Tribunal has jurisdiction in this matter to determine whether the documents are properly categorised as relating to the Ombudsman’s exempt functions. The Ombudsman further submits that on the evidence before it, the Tribunal it could be satisfied that the documents were properly categorised as documents arising out of the exercise of the Ombudsman’s exempt functions - in this case its complaint handling functions.
10 The Ombudsman submits that the effect of section 9 and schedule 2 of the FOI Act is to exempt the complaint handling, investigative and reporting functions of the office of the Ombudsman from the operation of the FOI Act. If the Tribunal is satisfied, as a matter of fact, that the information requested by the Applicants falls within these functions, the Tribunal can be satisfied that it has no further jurisdiction to hear the application in respect of that information. The respondent relies upon the confidential affidavit of Anne Radford and the documents annexed to the confidential affidavit to support its contention that the exemption in section 9 and schedule 2 applies to the documents the subject of the FOI application.
11 The Ombudsman relies on views expressed by Justice Simpson in the NSW Supreme Court in ICAC v. McGuirk where Her Honour stated in regard to the issue of whether the Tribunal had jurisdiction to review the decision of the agency as a decision under section 24 of the FOI Act:
12 The Ombudsman also relies on my decision in McGuirk v NSW Ombudsman (N03) [2007] NSWADT 269 and Cianfrano v NSW Ombudsman [2007] NSWADT 273 in which I followed this approach.
19 If the Appeal Panel were correct then any body, office or agency that received a section 17 application would be obliged, even where it determined that the document(s) in question were of the kind specified in schedule 2, nevertheless to consider and determine the application under section 24.
That is not in my opinion, consistent with the terms of section 9. What section 9 does is (in relation to the functions specified in Schedule 2) exempt the body or office from “the operation of [the FOI] Act”. That is, once the documents are categorised as section 9 documents, the FOI Act has no further application to that body or office. That includes section 24.
20 I was initially concerned that such a conclusion might mean that a ruling that the documents sought were section 9/schedule 2 documents was unreviewable. But that is not the case. As I read section 53, it would be open to the applicant to challenge that determination in the ADT.
13 McGuirk v NSW Ombudsman (No 3) I stated:
14 The Ombudsman submits that the approach that I took in McGuirk v NSW Ombudsman (No 3) is the correct approach. He says that such an approach is consistent with the words in section 9 of the FOI Act and that it is also consistent with the approach adopted by the Ombudsman in dealing with the Applicants' request.
31 In my view, the correct approach is to first ascertain whether the documents in question are of the kind specified in schedule 2 to the FOI Act i.e. does each of the documents relate to ‘the complaint handling, investigative and reporting functions of that office.’
32 It is apparent from various authorities that have considered the expression "relating to" and similar expressions that these phrases that the words are of the widest import: See for example Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111.
33 In my view, the expression "exempt from the operation of the Act" in section 9 of the FOI Act should be given its ordinary meaning. If a document is correctly categorised as falling within the scope of schedule 2, the agency does not need to make a determination under section 24. Similarly, it is not required to give a notice of determination under section 28 the FOI Act. However, if the agency has wrongly categorised a document and it in fact relates to the agency’s non-exempt functions, then the agency is not exempt from the FOI Act in respect of that particular document. In that situation, the agency’s failure to make a determination under section 24 would constitute a deemed refusal under section 24(2) of the FOI Act. That deemed refusal could be the subject of both internal and external review.
34 The Ombudsman Act 1974 makes provision for the complaint handling, investigative and reporting functions of the Ombudsman's office. In my view whether or not a document relates to those functions will be a question of fact to be determined in relation to each document by reference to the circumstances in which it was created or received by the agency.
15 The Ombudsman also relies on the decision in Raethel v Direct General Department of Education and Training [1999] NSWADT 108 where the President considered the scope of the exemption of the respondent under schedule 2 to the FOI Act in respect of "functions relating to the storing of, reporting on or analysis of information with respect to the ranking or assessment of students who have completed the Higher School Certificate for entrance into tertiary institutions". In considering section 9 in the context of determining that the respondent was an exempt agency in respect of an application for certain Universities Admission Index data, the President noted at paragraph 33:
16 The President again considered the scope of the exemption in schedule 2 to the FOI Act - in respect of the prosecuting functions of the office of the Director of Public Prosecutions (“the DPP”) - in DF v Director General Attorney General's Department [2002] NSWADT 164. In respect of a document or a routine kind prepared by a Crown Prosecutor for the DPP in accordance with office practice where a particular type of outcome occurs in a criminal trial, the President was satisfied that the advice was reasonably connected with the conduct of prosecuting functions of the DPP. The President noted at paragraph 25:
33 The expression "functions relating to" these matters is a broad one. "Functions" can not be reasonably read down in the way suggested by Mr Lancaster to mean only those functions of storage and analysis that relate to listing student scores by schools. Other types of analysis of the information are covered.
17 The Ombudsman submits that these decisions support a broad approach to considering the exemptions in schedule 2 of the FOI Act, and that matters connected with the functions exempted from the operation of the FOI Act. In particular, in this matter, it would include matters connected with complaint handling functions of the Ombudsman.
25 The 'functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal).
…
18 Accordingly, the Ombudsman submits that the Tribunal has no jurisdiction to hear the application if satisfied as a matter of fact that the requested information has been correctly categorised.
The Applicants’ case
19 The Applicants rely on written submissions in response to the material served by the Ombudsman. The Applicants have not been provided with the confidential affidavit of Anne Radford or the documents annexed to that affidavit.
20 The complaints to which the application relates were lodged with the Ombudsman in regard to the conduct of the NSW Department of Education. Review requests were made to the Ombudsman in December 2002, 2003, 2005, 2006 and 2007. The Applicants contend that complaints were not investigated under the Ombudsman Act. The further contend that complaints were lodged with the Office of the Ombudsman and Police Integrity Commission in 2003 and 2006 with regard to the Ombudsman's mishandling of the complaints and the lack of impartiality and procedural fairness afforded. They say that these complaints were not investigated.
21 The Applicants submit that the Ombudsman is bound in his duties and functions by the NSW Ombudsman Code of Conduct. A copy of that Code of Conduct was attached to their submissions. They also submit that the Ombudsman is responsible for child protection and has responsibilities and obligations under child protection legislation.
22 The Applicants contend that schedule 2 of the FOI Act does not provide an exemption in relation to the mishandling or covering up of complaints. They submit that it follows that the documents in question are not exempt under section 9 and schedule 2 of the FOI Act.
23 The Applicants argue that the approach to considering the exemptions in schedule 2 of the FOI Act should be with the view of protecting the public; including their confidence and trust and to ensure that public servants are exercising their duties with efficiency, fairness, impartiality and integrity and with the view of protecting children. They say that exemptions should not include the mishandling of matters or the involvement in malfeasance or the covering up of complaints, particularly if they refer to systematic psychological abuse and neglect of children and child protection, as this would deny the public impartial and unbiased decisions, procedural fairness and natural justice, allow for malfeasance and ensure that children are not protected.
24 The Applicant also submits that documents referred to in previous correspondence have not been produced and that requests to produce the documents have been ignored. They request that the documents now be provided.
25 The Applicants request that the Respondent be required to provide them with a schedule of all documents presented to the Tribunal so as to ensure that all documents in relation to all matters brought before the Ombudsman by the Applicants, including review requests, are presented to the Tribunal for consideration prior to any decision being made.
Findings
26 In ICAC v McGuirk Simpson J considered the issue of the proper construction and effect of section 9 of the FOI Act. Schedule 2 of the FOI Act provides that ICAC is exempt from the operation of the FOI Act in relation to its corruption prevention, complaint handling, investigative and report functions. I agree with the Ombudsman that the views expressed by Simpson J in ICAC v McGuirk are equally applicable to the proper construction and effect of section 9 of the FOI Act in regard to the Ombudsman. I have adopted this approach in other matters as referred to above.
27 In my view, the correct approach is to first ascertain whether the documents in question are of the kind specified in schedule 2 to the FOI Act i.e. does each of the documents relate to ‘the complaint handling, investigative and reporting functions of that office.’
28 The Ombudsman has provided several volumes of material, which are said to comprise the documents that fall within the scope of this application. I am unable to review the adequacy of searches undertaken by the Ombudsman to identify the relevant documents in response to the Applicants’ request for access to documents: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140.
29 I note that the Applicants requested that the Ombudsman provide them with a schedule of all documents presented to the Tribunal. I am not aware whether or not that occurred.
30 I have examined the documents contained in each of the files provided to the Tribunal and I am satisfied that the documents contained therein relate to the complaint handling functions of the Ombudsman. Accordingly I am satisfied that the Ombudsman does not need to make a determination under section 24 of the FOI Act in relation to those documents.
31 It follows that the Tribunal has no jurisdiction to hear and determine the application. It must therefore be dismissed.
Order
The application is dismissed for want of jurisdiction.
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