Chand v RailCorp

[2009] NSWADT 44

CITATION:	Chand v RailCorp [2009] NSWADT 44
DIVISION:	General Division
PARTIES:	APPLICANT Bimla Chand RESPONDENT RailCorp
FILE NUMBER:	073389
HEARING DATES:	18 September 2008
SUBMISSIONS CLOSED:	18 September 2008
DATE OF DECISION:	2 March 2009
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents – adequacy of search – substantial and unreasonable diversion of agencies resources
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 Radar Investments Pty Ltd and Health Insurances Commission (2004) 80 ALD 733, [2004] AATA 166
REPRESENTATION:	APPLICANT Bimla Chand RESPONDENT RailCorp
ORDERS:	The decision of the respondent to refuse Ms Chand access to the Category 3 documents is affirmed.

Introduction

1 Ms Bimla Chand (‘Ms Chand’) has sought review of a decision of the respondent (‘RailCorp’) in regard to her request, under the Freedom of Information Act 1989 (‘the FOI Act’), for access to four categories of documents. The categories of documents for which Ms Chand sought access were described in her FOI request as follows:

‘1. A complete unexpurgated copy of all documentation that relates directly to all of the actual and pending costs incurred in actions that are current, and or pending involving State Rail Authority against me in all current and pending external review forums such as the Australian Industrial Relations Commission, Administrative Decisions Tribunal, Anti-Discrimination Board and the NSW Courts regardless of who is attributed as the initiator of each individual process.

2. A complete table of documents that clearly identifies each document for which privilege is claimed, and an explanation as to how each specific document attracts the claim of privilege in actions involving State Rail Authority and any of its antecedent organisations against me, regardless of who is attributed as the initiator of each individual process.

3. Complete and unexpurgated copies of any and all documentation that does not attract privilege and relates directly, or indirectly to current or pending action involving State Rail Authority and any of its antecedent organisations against me regardless of who is attributed as the initiator of each individual process, which includes but is not limited to submissions, reports, e-mails, diary notes, minutes of meetings, or discussions, transcripts of telephone conversations, and other related documents including any advice sought, or given by any internal, or external entity but excludes correspondence sent from and received by me.

4. Any declarations applied by any person or entity in relation to this specific application including all documents and processes identified by the application.’

2 On 18 September 2007, Ben Stirling (‘Mr Stirling’), Manager, Freedom of Information and Policy of the respondent, made an initial determination of Ms Chand’s FOI. Following a request for an internal review, on 1 November 2007, Sandra Nicola (‘Ms Nicola’), Senior Solicitor of the respondent made an internal review determination. Ms Chand filed her application for external review with the Tribunal on 31 December 2007 and in the course of planning meetings I made orders, pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), remitting aspects of the decision the subject of review for further consideration by the respondent. The respondent’s decision following re-consideration is dealt with below.

3 Ms Chand’s application was heard on 18 September 2008. It had been listed for hearing on 4 August 2008 and this date was vacated at the request of Ms Chand. At the same time Ms Chand consented to the new hearing date of 18 September. Three days before the adjourned hearing date, Ms Chand made a further application to adjourn the hearing to some time in November 2008. That application was refused. At the hearing, Ms Chand was represented by her agent Mr Cianfrano, who participated by telephone.

4 At the hearing the respondent relied on a statement of evidence of Jim Morton (‘Mr Morton’), dated 10 June 2008. Mr Morton is employed as a senior solicitor with the respondent and he appeared on behalf of the respondent at planning meetings. He was also sworn to give oral evidence at the hearing and he was cross-examined by Mr Cianfrano. The material relied on by Ms Chand was an affidavit, sworn by her on 10 June 2008, and a written response to the statement of Mr Moron that she filed and served on 1 September 2008.

5 At the conclusion of the hearing I made the following orders:

‘1. the respondent’s decision in regard to the Category 1 document for which Ms Chand had sought access is set aside and in substitution thereof a decision that Ms Chand be given access to the documents she requested;

2. the applicant’s application in regard to the document in Categories 2 and 4 is dismissed as the Tribunal has no jurisdiction to hear and determine a question concerning the adequacy of search by an agency for the documents for which access has been sought; and

3. the decision of the Tribunal in regard to the Category 3 document as requested by Ms Chand was reserved.’

6 For the reasons set out below I have found that the decision of the respondent in regard to the Category 3 requested documents was the correct and preferred decision and should be affirmed: see section 63 of the ADT Act.

7 For completeness, these reasons for decisions also set out my reasons for decision in regard to the orders I made concerning the Category 1, 2 and 4 documents for which Ms Chand had sought access.

Category 1 documents

8 Mr Stirling and Ms Nicola both determined to refuse Ms Chand access to the documents that came within the terms of the requested Category 1 documents. The documents were identified as invoices and Ms Chand was refused access to these on the grounds that they were exempt under clause 7(1)(b) and (c) of Schedule 1 of the FOI Act (i.e. the invoices contained matter which had a commercial value to the respondent and the law firm/barrister who had issue the invoice and they also contained information about the business, professional, commercial and financial affairs of the respondent and the relevant law firm/barrister).

9 On 5 February 2008, pursuant to section 65 of the ADT Act, I made orders remitting the respondent’s determination in regard to the Category 1 documents.

10 On 26 February 2008, Ms Nicola, on behalf of the respondent filed and served a re-determination in regard to this category of documents. This re-determination became the decision subject of review in regard to the Category 1 documents: see sub-section 65(3) and (4) of the ADT Act.

11 In her re-determination Ms Nicola identified 25 documents (‘invoices’) falling within Category 1. She also found that to the extent these invoices contained information on the charge-out rates, discount rates and the nature of the legal work that was performed by the law firm/barrister issuing the invoice, this information was exempt matter under clause 7. She went on to determine that Ms Chand should be granted access to a copy of each invoice with the exempt matter deleted. Ms Nicola contended that the deleted matter had ‘a high commercial value to both the firm and to RailCorp’ and would if released to the world at large discourage the law firm/barrister from tendering for and providing the respondent with legal services in the future. Ms Nicola went on to say ‘this would reduce the level of competition as well as the pool of available legal resources and highly prejudice RailCorp’s ability to negotiate for the provision of those services on the best commercial terms.’

12 It would appear that Ms Nicola consulted the persons who had issued each invoice (see section 32(3)(c) of the FOI Act). With one exception, these persons did not object to Ms Chand being grant access to a copy of their invoice(s), with the exempt matter deleted. Subsequently, the person who had objected to Ms Chand being granted access to the invoices they had issued (5 in number) did not press their objection in regard to the release of the whole document and Ms Chand was also given access to a copy of these invoices with the charge-out rates, discount rates and the nature of the legal work that was performed deleted. Copies of the 25 invoices in question were given to Mr Malouf who appeared at the hearing, on 18 September, at the request of Mr Cianfrano, to collect these documents from the respondent.

13 No issue was, nor has it subsequently, been taken in regard to the deletions. It is noted Ms Chand had at all times indicated that she was only interested in the total amounts what the respondent had expended on legal fees in ‘current’ and or ‘pending’ matters involving her and the respondent. In light of this it is difficult to understand why the respondent adopted the approach it did in determining this aspect of Ms Chand’s FOI request. There was always an obligation on the respondent to consider the requirements of section 25(4) of the FOI Act (i.e. whether it was practicable to give Ms Chand a copy of the invoice with the exempt matter deleted). Once it was determined to provide a copy with the exempt matter deleted, it is difficult to see how the consultation provision had any application.

14 In light of the respondent’s decision to provide Ms Chand with a copy of the invoices and Ms Chand not objecting to the deletions it was appropriate for the Tribunal to formally order that the decision of the respondent in regard to the Category 1 documents be set aside and in substitution thereof a decision to grant Ms Chand with a copy of the documents with the exempt matter deleted.

15 Ms Chand however, continued to assert that the respondent’s determination of this part of her FOI request was not fully responsive in that there were invoices which it held that fell within the terms of her request and which it had failed to disclose to her. Ultimately, this was an adequacy of search issue and as I explained during the course of the hearing, a recent decision of the Court of Appeal had held that the Tribunal did not have jurisdiction to hear and determine such an issue: see Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 at [76], [78] and [135]. Instead the Court found that where an FOI applicant was ‘dissatisfied with an agency’s response that a document does not exists or is not held by the agency is to seek prerogative relief, or relief via the Ombudsman Act’: see per Beasley JA at [76].

16 Ms Chand had also expressed concern that the respondent had failed to grant her access to invoices arising from an earlier application for review to the Tribunal (file no 043132). In this regard I accepted the respondent’s contention that these invoices did not fall within the terms of Ms Chand’s FOI request as this earlier application was neither a ‘current’ or ‘pending’ proceeding involving her and the respondent at the time of her FOI request.

17 At the hearing, Mr Cianfrano urged the Tribunal to make an order under section 39 of the ADT Act and refer the adequacy of search issue to the Ombudsman. Sub-section 39(1) makes provision for the Tribunal and the Ombudsman to enter into an arrangement to refer matters to each other where appropriate. Such arrangements were entered into in December 2006 and subsection 39(3) of the ADT Act empowers the Tribunal and the Ombudsman to exercise their respective functions in conformity with these arrangements.

18 The arrangements between the Tribunal and the Ombudsman are not restricted to applications for external review of an administrator’s decision under the FOI Act. They apply to all external review applications of administrative decisions made to the Tribunal. However, a formal referral is restricted to the specified matters which arise from such applications and where the applicant and the Ombudsman have consented to that referral.

19 In this application, there was no evidence of any consent by the Ombudsman for such a referral. The respondent also contended that there was no basis for such a referral as there was no material before the Tribunal to suggest that the respondent held other invoices relevant to Ms Chand’s FOI request. In my opinion, without some probative evidence that suggests that the respondent does, or should be holding further documents relevant to an applicant’s FOI request and it is refusing to identify or provide these, there is no basis to call to account the conduct of the relevant administrator, through a formal referral under section 39 of the ADT Act. An applicant’s strong suspicion and mistrust of any action taken or not taken by the administrator is not a sufficient basis for such a referral. This does no prevent the applicant from considering action along the line referred to by Beasley JA in Administrative Decisions Tribunal Appeal Panel (supra).

Category 2 documents

20 In his determination Mr Stirling said that the respondent did not hold a ‘complete table of documents’ which identified those documents it held in relation to ‘actions’ which involved the respondent and Ms Chand for which the respondent claimed privilege. He went on to say the following:

‘… [I] am of the view that where the agency is claiming an exemption over documents in relation to legal professional privilege (in Clause 10 of Schedule 1 of the Act), that privilege extends to a refusal to disclose any explanation as to the identity of the document as sought in this part of the application. In other words, legal professional privilege would also extend to such a document, were it in existence …’

21 In my opinion, this additional explanation is not reflective of current principles in regard to the identification of documents for which access has been requested and for which a claim of legal professional privilege is made.

22 In her determination, Ms Nicola affirmed the determination of Mr Stirling and said that ‘no such document existed for production’. She went on to stress that the Act did not require the respondent to create a document in response to Ms Chand’s request. She also said that to create such a document would involve a substantial and reasonable diversion of the respondent’s resources away from their use by the agency in the exercise of its functions as the privileged material sought by Ms Chand covered a ‘number of years and encompassed many volumes of documents.’ It is difficult to understand this part of Ms Nicola’s reasons given her earlier statement that the document did not exist.

23 However, Ms Chand was adamant that such a document did exist and that the respondent was refusing to produce the document as it wished to cover up its own misadministration. In support of her contention Ms Chand relied on a 7 page list of documents, prepared by the respondent, which listed numerous documents, a copy of which the respondent had previously given Ms Chand (see attached 1 to Ms Chand’s 1 September written response).

24 In my opinion, the list relied on by Ms Chand does not support her contention. The list itself is not a list of relevant documents over which the respondent has claimed privilege. Nor can it be inferred from the fact that the respondent prepared this list that it would also have prepared another list of documents it held and over which it had or would claim privilege if called on to produce the documents in question. On the other hand, the evidence of the respondent was and has at all times been that no such document was ever created or held. It is note that sections 5(1)(a), 16 and the definition of the term ‘an agency’s document’ in subsection 6(1) of the FOI Act make it clear that a person’s right to access under the FOI Act is a right that is limited to documents that are in fact held by the agency at the time the FOI request is made: see Administrative Decisions Tribunal Appeal Panel (supra) per Beasley JA and Radar Investments Pty Ltd and Health Insurances Commission (2004) 80 ALD 733, [2004] AATA 166 at [40].

25 It is noted that in the earlier application of Ms Chand for review of a decision of the respondent under the FOI Act (file no 043132), there were 4 documents for which the respondent refused access on the grounds they were privileged (see extempore decision of the Tribunal at Attachment ‘E’ to the statement of Mr Morton at page 263). Whether a list was prepared for that particular application was not relevant to Ms Chand’s FOI request. As mentioned above, this earlier application for review was not a ‘current’, or ‘pending’ proceeding as at the date on which Ms Chand’s FOI request, the subject of these proceedings, was received by the respondent.

26 Mr Cianfrano also requested that this aspect of the respondent’s decision be referred to the Ombudsman under section 39 of the ADT Act. For the same reasons set out in paragraph [17] to [19] above, I found no basis to make an order for such a referral.

Category 3 documents

27 In regard to the Category 3 documents requested by Ms Chand, Mr Stirling found that ‘the sheer volume of documents which were embraced by the terms’ of the request were such that it met the requirements of section 25(1)(a)(1) of the FOI Act. That is, the work involved in dealing with this aspect of her request, if carried out, would substantially and unreasonably divert the respondent’s resources away from their use by the respondent in the exercise of its normal functions and it was therefore a basis to refuse her access to the documents she sought. However, he went on to say the following:

‘Having regard to section 25(5) of the Act, however, I am not permitted to dismiss an application without first providing the applicant with an opportunity to amend their application such that the work involved in dealing with the application would not substantially and unreasonably divert the agency’s recourses. To this end, I have decided that the appropriate way to deal with this application is to grant viewing access to all the documents held by the agency relating to proceedings involving you, with the exception of those documents over which an exemption is claimed under clause 10 of Schedule 1 of the Act, on the basis of legal professional privilege. You are therefore invited to attend RailCorp’s premises at 18 Lee Street Chippendale, to view those documents and make copies of any of those documents of which you seek a copy. Please refer to the cover letter of this determination for the specific excess arrangements.’

28 In his covering letter, Mr Stirling advised Ms Chand that she could view the documents she had requested at the respondent’s premises in Chippendale and that she could do so at a time that was convenient to her and the respondent, but not before the beginning of the following week (i.e. not before the being 24 September 2007).

29 It is not clear whether Ms Chand took Mr Stirling up on the invitation, but I have assumed that she did not do so. Instead she made an internal review request asserting that her request was quite reasonable.

30 In her internal review determination, Ms Nicola dealt with the Category 3 and Category 4 documents requested by Ms Chand together. Although it is not altogether clear from the terms of determination, it would appear that Ms Nicola determined to release to Ms Chand the following classes of documents coming within these Categories:

‘1. Correspondence to and from the Administrative Decisions Tribunal, the Australian Industrial Relations Commission and the Anti-Discrimination Board of New South Wales;

2. Various written decisions by the above Courts and

3. Transcripts of various court proceedings.’

31 The Tribunal understood that Ms Chand did not necessarily seek access to these documents as she already had copies of these. In any event these documents were not the subject of dispute before the Tribunal.

32 Ms Nicola also determined to refuse Ms Chand access to the remaining documents on the grounds that they were exempt under one or more of the following exemptions under Schedule 1 of the FOI Act:

Clause 6: documents that affected the personal affairs of a person other than Ms Chand.

Clause 9(1): internal working documents of the respondent.

Clause 10: documents containing matter being communications with the respondent’s legal advisors obtained for the dominant purpose of obtaining legal advice that would be privileged from production and legal proceedings on the ground of legal professional privilege.

Clause 13: documents containing matter obtained by the respondent in confidence.

Clause 16: documents that contained matter which concerned the operations of the respondent.

33 Whether the abovementioned grounds were in addition to, or in substitution of, the ground that had been relied on by Mr Stirling in his original determination (i.e. unreasonable diversion of resources as set out in section 25(1)(a1) of the FOI Act) is by no means clear from the terms of the determination and the reasons that were given. Accordingly, it is understandable that Ms Chand understood Ms Nicola’s determination as a decision to grant her access to some documents but to refuse her access to others on the abovementioned grounds. On this basis, as is usual in external review applications, Ms Chand sought a list of those documents falling within Category 3 and for which access had been refused.

34 At the planning meetings, position of the respondent was clarified by Mr Morton, who appeared on behalf of the respondent. He said, that given the breadth of Ms Chand’s request, the respondent remained of the view that the work involved in dealing with this aspect of her FOI request, that the grounds for refusal to grant access as set out in section 25(1)(a1) of the FOI Act continued to be applicable. Mr Morton invited Ms Chand to limit and clarify her request.

35 On 18 March 2008, by consent, I made an order, pursuant to section 65 of the ADT Act, that Ms Nicola’s decision in regard to the documents falling within Category 3 and Category 4 of Ms Chand’s FOI request be remitted to the respondent for further consideration. To assist the respondent in reconsidering the matter, I also ordered Ms Chand to file and serve a list of those matters she claimed to be ‘current’ and ‘pending’, as at 11 July 2007 (i.e. the date of her FOI request), which involved her and the respondent. Ms Chand filed and served such a list which identified 16 different matters in the period September 2002 to July 2007. It is the Tribunal’s understanding that while the respondent did not take issue with the matters on the list for the purpose of this aspect of Ms Chand’s FOI request, it did not conceded that they were all current as at the date of her request (i.e. see paragraph [16] and [25] above).

36 On 22 April 2008, the respondent filed and served its re-determination in regard to the Category 3 and Category 4 documents requested by Ms Chand. The re-determination was made by Mr Morton and it also became the decision that was the subject of review in regard to this aspect of this application: see subsection 65(3) and (4) of the ADT Act. There is no dispute that the onus is on the respondent to satisfy the Tribunal that its determination is justified having regard to the applicable law and the material before the Tribunal: see section 61 of the FOI Act and section 63 of the ADT Act.

37 Mr Morton also determined to refuse Ms Chand access to the Category 3 Documents on the ground set out in section 25(1)(a1) of the FOI Act. In regard to the Category 4 documents he found, as had Mr Stirling and Ms Nicola, that the respondent did not hold any documents that fell within this Category. In regard to the Category 4 document these are dealt with below.

38 For the section 25(1)(a1) exemption to apply, the respondent must establish that ‘the work involved in dealing with’ Ms Chand’s request for the Category 3 documents ‘would, if carried out, substantially and unreasonably divert the [respondent’s] resources away from their use by the [respondent] in the exercise of its functions.’ It is well established that in determining what is ‘substantial and unreasonable’ in the context of section 25(1)(a1) of the FOI Act ‘there [is] a need for a balanced approach which takes heed of the impact on the agency, and the extent to which the applicant has sought to revise the request to make it manageable’: see Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 at [44] and [45]. At [62], the President set out some relevant factors to be taken into account in the balancing exercise. It is also accepted that the extent of the ‘unreasonableness’ does not need to be ‘overwhelming’: see Cianfrano at [65].

39 As indicated by Mr Stirling in his original decision, the respondent is not permitted to rely on this exemption unless it first endeavours to assist the FOI applicant to amend his/her application so that the work involved in dealing with the request would, if carried out, no longer substantially and unreasonably divert the respondent’s resources away from their use in the exercise of its functions: see section 25(5) of the FOI Act.

40 It is noted that prior to making his determination, Mr Morton wrote to Ms Chand and her then agent, Mr Colin Saggers, in accordance with the section 25(5). In response to Mr Morton’s request, Ms Chand said the following:

‘… [in] relation to paragraph 3 I had already explained at the previous case conference on 18 March 2008 that the material provided to me did not contain any “ email messages, reports, diary notes or minutes of meetings or discussion transcripts of telephone conversations and any other related documents including any advice sought or given by an internal or external entity but excludes correspondence sent or received by me ”.

This just means that you do not provide me with papers that has already been provided in December and as pointed out at the case conference that RailCorp has copies of the files and tables of papers that have been provided to me. So I hope it is clear that since you already have the index and the files you will be able to distinguish the material that I am requesting in this paragraph. …’

41 In his Statement of Reasons, on the basis of 15 ‘current’ and ‘pending’ matters identified by Ms Chand, Mr Morton estimated that the ‘processing’ of this aspect of Ms Chand’s FOI request would take at least 20 hours, per matter (i.e. a total of 305 hours). Mr Morton did not make reference to having examined any files but set out what was included in ‘processing’ the request. This included the identification and collection of all the relevant files, examining and making a determination in regard to each document on every file as to whether access was to be granted or refused and if refused the grounds of refusal and the preparation of a determination in regard thereto.

42 In his Statement of Evidence, Mr Morton gave a revised estimate of the required ‘processing’ time. That revised estimate was based on a detailed search for relevant files on the respondent’s TRIM computerised record keeping system. The TRIM system he emphasised identified files held by the respondent and not the individual documents held on such files. Attached to Mr Morton’s Statement of Evidence was a print out of the relevant files as a result of the searches that had been made. The printout listed 31 files, most of which were identified as being held in the legal division of the respondent. The information on this list in regard to each file included the file number, the date of creation, the file name and other general information in regard to the contents of each file. In some cases, the TRIM entry specified that the file contained ‘EXEMPT MATERIALS’, ‘ADVICE’ and ‘CONFIDENTIAL EXHIBITS’. Whether the documents in the files actually meet these descriptions was not a matter for the Tribunal to determine in this application. On the basis of the number of files and an estimate of each file containing 350 pages, Mr Morton estimated it would take 191 hours or 27 days to process this aspect of Ms Chand’s FOI request.

43 He went on to say that further searches for relevant documents would also need to be made as the TRIM computerised system did not necessarily include all the files relating to Ms Chand. Mr Morton said he had conducted a brief search at the office of the respondent’s Employment Legal Manager and found 12 arch lever folders of documents that were not registered in the TRIM system but which contained documents falling within Ms Chand’s FOI request. He anticipated that there would be more such files given the complexity of Ms Chand’s employment history with the respondent.

44 Mr Morton explained that the FOI unit of the respondent was staffed by a manager who works 4 days a week and 2 part time officers. He said that in the 2007 financial year the respondent received 254 FOI requests and had processed a total of 280. Of the requests processed, only 4 took more than 40 hours to process. In regard to Ms Chand’s FOI request he explained that this would require legal input as issues of legal professional privilege arose. He said the respondent employed 4 legal staff who worked in various divisions within the organisation and of these, the position he held was the only position available to deal with an FOI requests of the type made by Ms Chand.

45 In her response, Ms Chand asserted that Mr Morton’s estimates were highly exaggerated. It was her contention that the many of the files contained duplicates of documents on other files. In support of her contention she relied on a 38 page list of documents, filed by an officer of the respondent in proceedings concerning her before the Australian Industrial Relations Commission (‘the Commission’). That list certainly identifies a number of documents that were duplicates of other documents on the list.

46 I do not understand Mr Morton’s evidence to be entirely contrary to the contention of Ms Chand. Even if there are numerous duplicates I accept the evidence of Mr Morton that in processing Ms Chand’s FOI request each document on the file would still need to be examined as the respondent’s TRIM system is not one where the documents on a file could be excluded as a copy of a document on another file. In his estimate Mr Morton has attributed 10 seconds per page for this initial assessment, which on average I find to be a reasonable assessment. Mr Morton’s total estimate for this initial assessment was 52 hours, which is already beyond the 40 hour upper bench mark for dealing with an FOI request. At the same time I accept that some of his other estimates may not necessarily be so exact if there are in fact numerous copies of the same document on each file. However, on the basis of Mr Morton’s evidence and the other material before the Tribunal I accept that, even on the basis that there are far fewer documents which contain exempt matter, the work involved in processing her application is likely to be about 100 hours.

47 As mentioned above (see paragraph [38]), the question is whether this amount of work, if carried out, would ‘substantially and unreasonably’ divert the respondent’s resources away from their use by the respondent in the exercise of its functions.

48 Some of the factors considered by Mr Morton in making his determination in this regard were the following:

(a) the breadth of Mr Chand’s request in that she sought access to documents that were ‘directly and indirectly’ related to the proceedings she had identified. These proceedings, in so far as they related to her employment with the respondent, had been ‘protracted’ over a considerable period of time making it difficult to identify and locate those ‘indirectly’ related to the relevant proceedings;

(b) Ms Chand’s refusal to accept the co-operative approach made by the respondent in its initial determination and her subsequent refusal to limit the terms of her request;

(c) Ms Chand having already been given access to many documents held by the respondent concerning her. Mr Morton pointed to the 2002 FOI request of Ms Chand where she had been granted access to 367 documents and refused access to 50 and where she had sought internal review by the Tribunal in regard to these 50 documents (i.e. file no 043132); and

(d) the adverse findings of Commissioner Redmond of the Australian Industrial Relations Commission, in a decision published in November 2007, about Ms Chand’s behaviour while employed with the respondent.

49 Ms Chand contended that the respondent’s determination in regard to her earlier application was of no relevance as were the findings of Commissioner Redmond.

50 I agree with Ms Chand’s contention in regard to the findings of Commissioner Redmond as these findings were made in regard to the industrial issues that were before the Commissioner. These issues differs substantially to those that are relevant to this application. As for Ms Chand’s earlier FOI application, the respondent having taken the position that this application was neither a ‘current’ or ‘pending’ proceeding falling within Ms Chand’s request it is difficult to understand its relevance.

51 Notwithstanding this I find that the respondent has established that the amount of work involved in carrying out this aspect of Ms Chand’s FOI request would ‘substantially and unreasonably’ divert the respondent’s resources away from their use by the respondent in the exercise of its functions and that its decision to refuse Ms Chand access to the documents requested on the grounds set out in section 25(1)(a1) of the FOI Act is the correct and preferred decision. In this regard I agree that the terms of Ms Chand’s FOI request is extremely broad and on the basis of the evidence of Mr Morton I accept that it would be a substantial diversion of the respondent’s resources to deal with Ms Chand’s FOI request. I also find that it would be an unreasonable diversion of those resources having regard to Ms Chand’s unwillingness to co-operate and also her unwillingness to limit the terms of her request. At the hearing, I suggested, through Mr Cianfrano, that Ms Chand having been provided with a copy of the TRIM computerised search, might like to consider limiting her request to specific files or specific documents. No such limit was however forthcoming.

52 I note that in her response of 1 September 2008, Ms Chand indicated her willingness to examine those files on the TRIM computerised list of files that were held within the legal division of the respondent. This was not pressed at the hearing. In any event if pressed, on the basis of the information on the list in regard to these files and the other material before the Tribunal, any inspection by Ms Chand would still require the respondent to allocate a substantial amount of resources to first examine each document on the files in question so as to ascertain whether the document is exempt and access should be refused on the basis of that exemption and then to extract the document if a determination is made to refuse access. Even if this process were agreed to by the parties, I doubt, having regard to the protracted history of the dispute between the parties that this course would resolve their differences in regard to this application.

53 Accordingly, the Tribunal must determine this application on the applicable law and the relevant facts: see section 63 of the ADT Act.

54 For the reasons I have stated above, in my opinion the decision of the respondent in regard to the Category 3 documents is the correct and preferred decision and should be affirmed.

Category 4 documents

55 As mentioned above, the decision the subject of review in regard to the Category 4 documents is the decision made by Mr Morton following the remittal of the decision of Ms Nicola under section 65 of the ADT Act.

56 Prior to making his determination, Mr Morton sought clarification from Ms Chand as to the documents for which she was seeking access in Category 4 of her FOI request. In response to Mr Morton’s request, Ms Chand said the following:

‘[The] documents sought under para 4 refer to the “declaration supplied by any person or entity in relation to this specific application including all documents and processes identified by the application”. This is clearly related to the third party privilege, confidentiality or any other declaration used by the RailCorp to deny access to those documents. …’

57 Mr Morton construed this response to mean that Ms Chand was seeking access to documents that had not come into existence at the time her FOI request was made. What she was seeking access to were documents that came into existence after her FOI request had been received and which concerned the manner in which the officer(s) of the respondent, delegated to deal with her request should process it. On the principles set out in Radar Investments Pty Ltd and Health Insurances Commission (supra), Mr Morton contended that such documents could not be the subject of Ms Chand’s request as they were not documents that were held by the respondent at the time her FOI request was received. Consequently, he determined that the respondent held no such documents.

58 Ms Chand did not cavil with Mr Morton’s construction of her request in regard to this Category of documents. However, Mr Cianfrano, on behalf of Ms Chand, also sought an order that this issue also be formally referred to the Ombudsman under section 39 of the ADT Act.

59 As I have mentioned above, it is well established that an administrator, when making a determination in regard to an FOI request, the administrator is only required to make that determination in so far as it relates to documents held by the agency as at the date the FOI request was received by the administrator: see Radar Investments (supra) at [39] and [40]. The same principle applies on an application for review, before the Tribunal, of a decision of the administrator under the FOI Act as the ambit of the Tribunal’s jurisdiction is confined to the terms of the FOI request in question.

60 In Radar Investments (supra), at [41] Deputy President of the Administrative Appeals Tribunal (‘the AAT’), S A Forgie, made reference to the fact that there were many instances where parties agreed that the administrator would consider documents that came into existence after the FOI request was received. It was noted that this was a very practical approach that should be encouraged. However, the Deputy President went on to say that in order for the AAT to have jurisdiction of any determination in regard to such an expanded request the proper course would be for the FOI applicant to make a further request for the additional documents.

61 It is unnecessary to consider this issue as in this application there was no agreement between the parties that the respondent would consider documents that came into existence after the date on which Ms Chand’s FOI request was received by the respondent.

62 On the material before the Tribunal, in my opinion, the respondent has established that it did not hold as at the date it received Ms Chand’s FOI request a document that fell within the terms of Category 4. On the basis of this finding and for the same reasons set out in paragraph [17] to [19] above, I declined to make a formal referral to the Ombudsman under section 39 of the ADT Act as request by Ms Chand.