Cianfrano v Director General Department of Commerce and anor (No 2)
[2006] NSWADT 195
•27/06/2006
Pending Appeal:
CITATION: Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 DIVISION: General Division PARTIES: APPLICANT
Robert Cianfrano
FIRST RESPONDENT
Director General, Department of Commerce
SECOND RESPONDENT
Sydney Markets LimitedFILE NUMBER: 043384 HEARING DATES: 13/04/06 SUBMISSIONS CLOSED: 04/13/2006
DATE OF DECISION:
06/27/2006BEFORE: O'Connor K - DCJ (President) CATCHWORDS: Jurisdiction to deal with Sufficiency of Search MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1982 (Vic)
Freedom of Information Act 1989
Freedom of Information Act 1989 (ACT)
Freedom of Information Act 1992 (Qld)
Ombudsman Act 1974CASES CITED: Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282
Re Wilson and Australian Federal Police (1983) 5 ALD 343
Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52
BY -v- Director General, Attorney General's Department [2002] NSWADT 79
Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163
Re Wiseman and Department of Transport (No 2) (unreptd, 11 April 1986, No V84/402)
Re Hancock and Department of Resources and Energy (unreptd, 2 June 1986, No N85/515)
Rana and Australian Federal Police [2006] AATA 356
Chu v Telstra Corporation [2005] FCA1730
Re Smedley and Department of Business, Arts, Sport and Tourism (1996) 41 ALD 779
Smith and Administrative Services Department [1993] QICmr (30 June 1993); (1993) 1 QAR 22
Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464
Re Hezky and Health Department of Victoria (1987) 1 VAR 387
Re Shorel and Health Department of Victoria (unreptd, 20 March 1990, No 89/43592)
Re Tovarlaza and Ministry of Housing & Construction (unreptd, 9 October 1990, No 90/29305)
Victoria Police v Burton (1999) 15 VAR 443; [1999] VSC 534
DQ v Commissioner of Police, NSW Police Service [2002] NSWADT 215
Re Czuczor and Department of Social Security (unreptd, 11 December 1987, No V87/350)
Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22
Burton and Victoria Police, unreptd, Administrative Appeals Tribunal of Victoria, No 1996/26906 (5 November 1998)
Re Kalman and Department of Veterans Affairs (unreptd, 23 October 1992, Q91/619)
Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99REPRESENTATION: APPLICANT
FIRST RESPONDENT
In person
J McDonnell, solicitor, Crown Solicitor's Office
SECOND RESPONDENT
R davis, solicitor, Piper AldermanORDERS: 1. First Respondent’s objection to jurisdiction dismissed; 2. Tribunal to reconvene to make further directions as appropriate.
REASONS FOR DECISION
1 This decision deals with an objection by the respondent agency to the Tribunal further considering the applicant’s application for review of a determination made under the Freedom of Information Act 1989 (the FOI Act or the Act). The history of the applicant’s application for access to documents and the subsequent dispute is given in an earlier decision of the Tribunal – Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282. In that decision, the Tribunal ruled on the agency’s grounds for refusing access to various documents.
2 The applicant contends that the agency’s reply to his access application did not identify all documents relevant to his request. He has asked the Tribunal to examine the sufficiency of the agency’s search. The agency objects that the Tribunal has no jurisdiction to deal with that issue. (The second respondent to the application, Sydney Markets Limited, appeared on a watching brief basis, making no separate submissions on the point addressed by this decision.)
3 The issue of whether the external review body has jurisdiction to examine the sufficiency of an agency’s search was not resolved during the period the review jurisdiction lay with the District Court (1 July 1989 to 5 October 1998). Cossins in her commentary on the NSW Act published in 1997 noted ( Annotated Freedom of Information Act New South Wales (LBC 1997) at [29.25]:
Background
4 After some discussion of relevant provisions in the NSW Act and of the Commonwealth case-law interpreting the Commonwealth Act prior to 1991, Ms Cossins concluded:
‘The Act is silent on whether a refusal of access based on the grounds that the documents cannot be found is reviewable by the District Court [then the body exercising the review jurisdiction], or whether the Court can require an agency or minister to search for lost documents.’
5 The Tribunal has, for several years, seen it as open to it to deal with an objection that an agency has not engaged in a sufficient search. The Tribunal’s experience has been that, often, as a result of directions given at planning meetings more documents falling with the scope of a request have been found by the agency. It is true, on the other hand, as noted by the agency in its submissions that no case where a formal hearing has ultimately been held on the sufficiency of search question has resulted in an adverse finding against an agency.
‘Thus, in all likelihood, it can be said that the District Court has the jurisdiction to review a decision that a document cannot be found, and that the power extends to reviewing a decision made by the agency as to the extent of the search, and assessing the adequacy of the search. … In fact if a decision that documents cannot be found is not a decision to refuse access, then ‘there is a potentially large area in which decisions of … ministers and agencies in relation to requests for access will be immune from external scrutiny’, a situation which is not in keeping with the spirit or objectives of the FOI Act: Re Wilson and Australian Federal Police (1983) 5 ALD 343 at 351 [ Re Wilson ]’.
6 In exercising these powers, the Tribunal has relied on the decision made in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (Judicial Member M Smith, now a Federal Magistrate).
7 Revisiting Ruling: This objection to jurisdiction has been raised before the Tribunal sitting at first instance. Normally the Tribunal at first instance will not reopen a prior, considered ruling on the same question, in the interests of comity, consistency and predictability. However, I have seen it as appropriate that where a question continues to be controversial or there is a conflict between members, and the question has not been dealt with at the Appeal Panel level of the Tribunal or in the Supreme Court, that it should be open, if a Divisional Head or the President is sitting at first instance, for that member, being a head of jurisdiction, to revisit the question: see further BY -v- Director General, Attorney General's Department [2002] NSWADT 79 at [21]-[23].
8 That is the situation on this occasion. I think it desirable to revisit the ruling in Beesley. I have noted in particular that there were no detailed submissions made to the Tribunal on that occasion by the affected agency. Moreover, I aknowledge that allegations that an agency has not made a sufficient search can easily be made, and if an agency is called on to refute them it may be put to considerable further effort and expense.
9 Commonwealth Case-Law: In Beesley, Smith JM’s primary conclusions were based on his construction of the NSW Act. He also had regard to reasoning contained in the Commonwealth case-law interpreting the Freedom of Information Act 1982 (Cth). In its original form, that Act had also been silent on this issue. The leading Commonwealth cases are Re Wilson, Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163, Re Wiseman and Department of Transport (No 2) (unreptd, 11 April 1986, No V84/402) and Re Hancock and Department of Resources and Energy (unreptd, 2 June 1986, No N85/515).
10 Commonwealth Amending Legislation: The Commonwealth Act was amended in 1991 so as to provide expressly for the Commonwealth Tribunal to undertake sufficiency of search inquiries, and specifying the criteria to be addressed. The amendments belonged to a package of amendments that resulted from a general review of the Act by a Senate Committee which had reported in 1987. The new s 24A provided:
11 The making of these amendments is relied upon by the agency for the submission that the previous law must have been to the opposite effect, and the Commonwealth tribunal decisions belonging to the 1982-1991 period asserting jurisdiction were wrong. The submissions refer to the Parliamentary material accompanying these amendments.
‘ 24A. Requests may be refused if documents cannot be found or do not exist. An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
The new s 55(5) provided:
55 (5). The Tribunal’s power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.’
12 The Parliamentary material is inconclusive, and does not (for example) contain any assertion that the Commonwealth case-law was wrong. In any event it is commonplace for clarifying amendments to be introduced to put beyond doubt a matter that has been the subject of some controversy. These amendments could just as easily be seen as confirming the old law, and relieving it from doubt. As to the way these amendments are interpreted and applied, see Rana and Australian Federal Police [2006] AATA 356; Chu v Telstra Corporation [2005] FCA1730 (Finn J).
13 State and Territory Case-Law: The Australian Capital Territory Freedom of Information Act 1989, based closely on the original Commonwealth Act, is silent and has not been amended. The ACT Administrative Appeals Tribunal ruled in 1996 that it had a power to examine adequacy of search: Re Smedley and Department of Business, Arts, Sport and Tourism (1996) 41 ALD 779 (Curtis P).
14 The Queensland Freedom of Information Act 1992, as enacted, was silent. The Queensland Information Commissioner held that his office had jurisdiction to deal with this issue: see Smith and Administrative Services Department [1993] QICmr (30 June 1993); (1993) 1 QAR 22; and Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. An amendment was made in 2001, s 28A, dealing expressly with the issue.
15 In support of its submission that the Tribunal in Beesley misconceived the position under the New South Wales Act, the agency drew strength from early Victorian tribunal decisions relating to that State’s Freedom of Information Act 1982 which had ruled that the Victorian tribunal had no power to examine this question: see, for example, Re Hezky and Health Department of Victoria (1987) 1 VAR 387, Re Shorel and Health Department of Victoria (unreptd, 20 March 1990, No 89/43592) and Re Tovarlaza and Ministry of Housing & Construction (unreptd, 9 October 1990, No 90/29305). This line of authority is dealt with further later in these reasons; and is not consistent with the reasoning in a more recent decision made by the Supreme Court of Victoria, Victoria Police v Burton (1999) 15 VAR 443; [1999] VSC 534 (Hedigan J) (Burton).
16 The agency submits that the one provision in the NSW Act that might be said to bear on the question of whether the Tribunal has the power to examine the sufficiency or adequacy of the agency’s search, s 28(1), points against the Tribunal having such a power. Section 28 (1) provides:
Construction of New South Wales Act
17 The agency’s submission is that s 28(1), and the provision read as a whole, clearly distinguishes between the making of a ‘determination’ and the giving of a notice that the agency ‘does not hold’ a document. The agency is given, it is said, a choice as to whether to make a determination or find that a document is not held by an agency. The scheme of the Act only vests power in the Tribunal to review determinations. A notice that the agency ‘does not hold’ a document is not a ‘determination’.
‘(1) An agency shall cause written notice to be given to the applicant:
(a) of its determination of his or her application, or
(b) if the application relates to a document that is not held by the agency – of the fact that the agency does not hold such a document.’
Section 28(2) deals with the matters to be included in a notice of determination. Section 28(3) provides that the agency may withhold from the notice any exempt matter.
18 Alternative Review Stream: The agency is quite prepared to answer to criticism of its handling of a request, including any alleged failure to locate and identify all documents relevant to a request, but it says that the exclusive forum provided for by the Act is the Ombudsman not the Tribunal. The agency has stated to the Tribunal that it has identified all the documents in its possession covered by the request. It has not refused to give access to any further documents. Therefore the matter is at an end. If the applicant does not feel he has been dealt with fairly he must go to the Ombudsman.
19 In support of the submission that the Ombudsman alone is entitled to consider a sufficiency of search objection, the agency refers to the structure of Part 5 of the Act, which is headed ‘External Review’. Access applicants are given a general right to complain to the Ombudsman about any ‘conduct’ of an agency (ss 52, 52A) with the Tribunal given the power to ‘review’ specified ‘determinations’.
20 Subject to some (presently irrelevant) limitations found in sub-s (5), sub-s (1) of s 52 provides:
21 So far as the Tribunal’s jurisdiction is concerned, the agency notes that only a person ‘ aggrieved by a determination made by an agency’ [my emphasis] can apply for review of the determination to the Tribunal: s 53(1).
‘(1) The conduct of any person or body in relation to a determination made by an agency under this Act may be the subject of a complaint, and may (subject to this section) be investigated by the Ombudsman, under the Ombudsman Act 1974 .’
22 The Tribunal’s jurisdiction is conferred by s 53 which provides as follows, relevantly to this case. The relationship between the Ombudsman and the Tribunal in any area of overlap of responsibilities is dealt with by s 53(2):
23 The agency notes that its submission is the same as the conclusion reached in the early Victorian cases over the relationship between the functions of the Tribunal and the functions of the Ombudsman. (There is a provision in the Victorian Act not found in the NSW Act, which was seen as relevant in this line of cases, discussed further below.)
‘ 53 Right to make a review application
(1) A person who is aggrieved by a determination made by an agency … under section 24 … may apply to the Tribunal for a review of the determination. …
(2) A review application may not be made:
(a) while the determination is subject to a right of review under section 34 or 47, or
(b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or
(c) while any relevant complaint is being investigated by the Ombudsman.
(3) For the purposes of this section, a person is aggrieved by a determination:
(a) in the case of a determination that relates to an access application made by the person under section 17 … – if the determination is to the effect that:
…
(i) an agency or Minister refuses to give the person access to a document, or
…
(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or
(4) In relation to decisions under this Act that are reviewable decisions under the Administrative Decisions Tribunal Act 1997:
(a) the procedures for internal reviews provided by this Act apply to the exclusion of section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997, and
(b) any reference in the Administrative Decisions Tribunal Act 1997 to an internal review of a reviewable decision under that Act is taken, in its application to a decision made under this Act, to be a reference to an internal review under this Act.
(5) The provisions of this Division apply to a review application to the exclusion of section 55 (1) (d), section 58 and Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.’
24 I note that the Tribunal is given some authority to form views on the conduct of an agency, to the extent that such an issue arises in proceedings before it. Section 58 provides:
25 The agency also notes that there are a number of practical reasons why it is better to have a criticism of the present kind investigated by the Ombudsman than left to the Tribunal to address. It refers to comments made by Judicial Member Smith, presiding members in Commonwealth tribunals and myself as to the difficulties which confront a tribunal, without significant investigative capacity, in seeking to ascertain whether an adequate search has been undertaken: see, for example, DQ v Commissioner of Police, NSW Police Service [2002] NSWADT 215 at [30] per O’Connor P; Beesley per Smith JM at [19]-[20]; Re Wilson at [30]; and Re Czuczor and Department of Social Security (unreptd, 11 December 1987, No V87/350) at [16].
‘58. If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.’
The Access Application and the Legislative Context
26 In this case the applicant made an access application (or request) on 25 September 2004 for:
27 The application needs to be placed within the context of the legislation. The Act gives each member of the public a legally enforceable right of access to ‘documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government’ (objects clause, s 5(2)(d)). This basic proposition is reiterated, in a more refined form in s 16: ‘A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.’ An ‘agency’s document’ is a defined term (s 6). It means ‘a document that is held by the agency’. So the right of access relates to any documents held by the agency.
‘All documents of the Department of Commerce, NSW or Department of Public Works and Services and all other Agencies and or agents etc, in relation to all internal working documents and all factual and statistical material relating to, of the Land Know [sic] as Flemington Markets at time of Sale to a private company known as Sydney Markets Limited.
This to include any preparation and finalization of the lease or assets and business interests of the Sydney Market Authority and the entity of Sydney Markets Limited.’ [sic]
28 The terms of the applicant’s request were wide. (The applicant, being a regular FOI user, used some phrases in his original application that are terms of art in the field of FOI; see for example the references to ‘internal working documents’ (an exemption category, cl 9 of Schedule 1) and the term ‘factual and statistical material’ (an qualification to the cl 9 exemption).) Such a request immediately presents a difficulty for the agency in assessing precisely what categories of documents in its possession are caught by the request. The Act seeks to provide a mechanism for ascertaining the scope of the request.
29 Section 17 sets out the access application procedure. There is an obligation on the applicant to include in the application ‘such information as is reasonably necessary to enable the documents to be identified’ (para (d)). Section 19(1) provides that ‘[a]n agency shall not refuse to accept an application merely because it does not contain sufficient information to enable the document to which it relates to be identified without taking such steps as are reasonably practicable to assist the applicant to provide the agency’. There is no evidence in this case as to what steps of this kind were taken in this case.
30 The Act then turns in s 19(2) to situations where it is preferable that another agency process the request. Section 19(2) provides:
31 It will be seen that s 19(2) deals with the situation where the document identified by the request is known to the agency to be held elsewhere in the government or it is more appropriate for the assessment of whether the document should be released to be undertaken by an agency with a greater connection to the document. Section 20 deals with the mechanism for the transfer of applications. Section 28(1) has to be seen, I consider, in the context of these provisions. To reiterate, s 28(1) provides:
‘(2) If an agency is unable to deal with an application because the document to which it relates:
(a) is not held by the agency but is, to the knowledge of the agency, held by another agency, or
(b) is held by the agency but is more closely related to the functions of another agency,
the agency shall take such steps as are reasonably practicable to assist the applicant to direct the application to the other agency.’
32 A notice under s 28(1)(b) is ancillary to the process of determination. It could issue in either of the circumstances contemplated by s 19(2) (document not held by the agency but known to be held by another agency or the document, though held by the agency, is better dealt with by another agency) or in a third circumstance – the document is not held by the agency and its location or existence is otherwise unknown to the agency.
‘(1) An agency shall cause written notice to be given to the applicant:
(a) of its determination of his or her application, or
(b) if the application relates to a document that is not held by the agency – of the fact that the agency does not hold such a document.’
33 As I construe the provisions, the obligation to determine an application is confined to those documents identified by the request which are held by the agency (subject to the special exception relating to the transfer of requests of documents more closely connected with the functions of another agency).
34 Sections 24 and 25(1) are the critical provision relating to the making of determinations. Section 24 provides:
35 Section 25(1) provides:
‘ 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.’
36 These provisions indicate that a refusal may take the form of an actual refusal or a deemed refusal of the kind contemplated by s 24(2). The agency says that its determination was of the kind referred to in s 25(1)(a). It does not regard it as a deemed refusal of the kind to which s 24(2) applies. (The Act continues to encourage the making of a substantive decision on the application by the agency, even though it may be out of time (see s 24(2A)); and applicants will often allow the agency extra time, and not proceed to invoke the rights arising under s 24(2), and the related provision in the case of failures to make an internal review determination within time (s 34(6)).)
‘25 Refusal of access
(1) An agency may refuse access to a document:
(a) if it is an exempt document, or
(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions, or
(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or
(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or
(c) if it is a document that is usually available for purchase, or
(d) if it is a document that genuinely forms part of the library material held by the agency.
(e) (Repealed)’
37 According to the agency it examined approximately 3000 documents that might have been covered by the request, eventually deciding that 1246 were relevant. It prepared a schedule of documents, and claimed exemptions in relation to 1066 of them. In the course of planning meetings held by the Tribunal the agency released many of the 1066 documents, eventually contesting the disclosure of 322 of them. In its earlier decision the Tribunal ordered the release of a further 133, and ordered the additional passages from several of the remaining documents be released.
38 Alleged Non-Production of Documents: Several months after filing his application for review with the Tribunal and following planning meetings, the applicant objected, in his submissions filed 31 May 2005, to the adequacy of the response to his request. He claimed:
· Non production of documents including all related terms and references for the provision of services of all consultants and any other contractors.
‘The applicant submits that the submissions and statement of evidence verified and submitted by Phillip Havenstein of the Department of Commerce [the agency’s FOI officer], is insufficient because there are additional documents that have not been disclosed by the Department. … Not all documents have been disclosed by the Department of Commerce. … I have collated the documents that have been withheld and are listed as following;
· Non production of documents including documents in the qualifications and the credentials of all consultants and any other contractor etc.
· Non production of documents in relation to the advertising for the positions for the consultants services and consultation and any other contractor etc in relation to the sale of the property …
· Non production of all documents including all instructions, tenders, contracts to all consultants and contractors in relation the sale of Property on Flemington Markets Home bush.
· Non production of documents in relation to invoices and accounting for all consultants and contractors.
· Non production of all documents including documents from all consultants and contractors acknowledging instructions and communications all documents sending and receiving instructions to all consultants and contractor’s.
· Non production of all documents analysing reports back from consultants and contractors including all documents analysing all reports and all instructions to all consultants and contractors.
· Non production of all documents including documents from Philip Bennett Associates Pty Ltd – in relation to Property on Flemington Markets Home bush and all contracts and reports in relation to the Valuation reports etc. The documents were to include all documents that were prepared by Philip Bennett Associates acting as valuation consultant and preparing the valuation for the sale of the property. (Flemington Markets Homebush).
· Non production of all documents including documents from Kevin Fennel & Associates for all services contracts and reports as the probity Auditor. – In relation to Property on Flemington Markets Homebush.
· Non production of all documents including documents from Max Bowen – in relation to Property on Flemington Markets Home bush and all contracts and reports in relation to the negotiations between government and SML and all negotiation reports back to the Department. The documents were to include all documents that were prepared by Max Bowen acting as negotiator and consultant and preparing the of sale of the property. Flemington Markets Homebush).
· Non production of all documents including documents in relation to the invoicing of State property management fees and charges that have been applied. This is to represent all commission collected in relation to the project for the sale of the property. (Flemington Markets Homebush).
· Non production of all documents including documents in relation to normal property rates such as Council rates (Strathfield Council) and (Sydney Water) water rates etc. The documents are in relation to the project for the sale of the property. (Flemington Markets Homebush).
· Non production of all documents and schedule of documents to the Premiers Memorandums.
· Non production of all documents and schedule of documents in relation to the Paddy’s Market lease and valuation and all reports for the preparation for the sale and disposal of the Markets.
39 The applicant’s objection is based on his general knowledge of the sale process as supplemented by the information he has acquired from the release to him of documents by other agencies involved in the process.
40 As noted earlier, the agency has relied on a number of early Victorian cases in which the review tribunal eschewed any role for it in dealing with sufficiency of search allegations. In those cases the tribunal was influenced by the terms of s 27 of the Victorian Act, in particular s 27(1)(e). It is helpful to set out the whole of s 27(1):
Victorian Position
41 As also noted earlier, the Victorian Supreme Court decision of late 1999, Burton , casts doubt on the authority of the earlier decisions. It highlights, in my view, the danger of accepting the present submissions. (This case was not considered in Beesley , decision delivered 3 May 2000.)
‘ 27. Reasons etc. to be given
(1) Where, in relation to a request for access to a document of an agency or an official document of a Minister, a decision is made under this Part that the applicant is not entitled to access to the document in accordance with the request or that provision of access to the document be deferred or that no such document exists, the agency or Minister shall cause the applicant to be given notice in writing of the decision, and the notice shall -
(a) state the findings on any material questions of fact, referring to the material on which those findings were based, and the reasons for the decision;
(b) where the decision relates to an agency, state the name and designation of the person giving the decision;
(c) where access is given to a document in accordance with section 25 state that the document is a copy of a document from which exempt matter has been deleted;
(d) inform the applicant of-
…
(i) his right to apply for a review of the decision;
(ii) the authority to which the application for review should be made; and
(iii) the time within which the application for review must be made;
(e) where the decision does not relate to a request for access to a document that if it existed would be, an exempt document under section 28, 29A or 31 but the decision is to the effect that the document does not exist or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Ombudsman.’
42 The case had as its background the Coode Island environmental disaster. Coode Island was part of the working port in Melbourne. The site was the bulk storage facility for hazardous chemicals. There had been controversy over whether such a dangerous facility should be located so near to the City and to centres of population.
43 On August 21 1991, the storage facilities exploded, and eight million litres of chemicals were set on fire. A toxic plume spread across Melbourne. The investigating police made statements to the press to the effect that the disaster was caused by saboteurs who were environmental activists. In December 1996 the applicant, who belonged to an environmental organisation, applied to the Victoria Police for all documents relevant to the allegations that had been made by the police. The agency’s determination identified various documents, and refused many of them. The applicant applied for review to the relevant tribunal. At a preliminary hearing, the applicant claimed that many documents relevant to the request had not been located by the agency and not dealt with in its determination.
44 The Tribunal ruled that it could direct the agency to undertake further searches. The Tribunal did not see itself as prevented from doing so despite the earlier cases denying the availability of such a power. It is noteworthy that in the early Victorian cases the tribunal had decided it did not have power solely on the basis of the presence in the legislation of the power found as s 27(1)(e), and without any consideration of the possibility that a dual stream was being established, either of which was accessible to an applicant in an appropriate case.
45 The Tribunal did not consider that this provision precluded it from looking behind the determination. As a result of its directions, the agency located numerous additional documents relevant to the request. After highly contentious litigation in which both parties were represented by senior counsel, the Tribunal made final orders, rejecting many of the agency’s claims to exemption. It received a costs application from the applicant. It made a costs order against the agency to the extent of 60% of the applicant’s costs, expressing concern over the way the agency had conducted itself, especially in relation to its failure in responding satisfactorily to the original determination: see Burton and Victoria Police, unreptd, Administrative Appeals Tribunal of Victoria, No 1996/26906 (5 November 1998 before Mrs Ada Moshinsky QC).
46 The agency appealed against the costs orders, one of its arguments being that the exercise of the costs discretion had miscarried when the Tribunal took into account the agency’s alleged failure properly to locate and identify documents relevant to the request. It contended that the Tribunal had no power to make directions to the agency going to the question of whether it had properly located all the documents in its custody relevant to the request; and so the costs order was defective in so far as it was based on that consideration. The Supreme Court was therefore called on to address the question of the Victorian Tribunal’s power to ascertain whether a sufficient or adequate search had been undertaken.
47 As is also the submission in the present case, the agency claimed there that the failure to locate and produce documents did not amount to a ‘refusal’ of the kind to which the Tribunal’s power to review a determination is directed. At p 451 (VSC [15]) Hedigan J states:
48 His Honour goes on to note:
‘The fundamental feature of the appellant’s case on this aspect has been to say that the statement by the appellant that it had no such documents did not constitute a refusal to produce them.’
49 The Court noted moreover that the agency, when required to answer to the Tribunal, and so as to avoid the conclusion that it had refused to answer the request, then compounded its failure by falsely claiming that the documents requested were not in the possession of the agency: at 451 (VSC [16]). This is the vice which the agency’s submissions, if accepted in this case, would permit. An agency might state in error (intentionally, negligently or reasonably but mistakenly) to an applicant or the Tribunal that it does not hold documents.
‘The Tribunal clearly concluded that the police were sitting on the documents and would not produce them. They ultimately produced in excess of 300.’
50 As to the argument (one which had prevailed in many of the earlier Victorian Tribunal cases) that the Act did not give the Tribunal any power to order searches to be undertaken, the Court said (VAR 453, VSC [18]):
51 The Court did not regard s 27(1)(e) as somehow precluding the Tribunal from taking the course that it did. The Court said at [29]:
‘The Tribunal held that it would be contrary to the object and purpose of the legislation if it could not satisfy itself that the documents did not exist and could not be located, once that was put into issue by the applicant. This statement was obviously made because the claim was being made to the Tribunal (and it was made to me also) that although the matter was before the Tribunal and the matter was raised by the applicant, the Tribunal had to send the matter off to the Ombudsman to exercise his s.27 jurisdiction for diligent search. In my view, the Tribunal rightly rejected such a stultifying inhibition of its powers which would be bound to lead to a delay and increased costs. The Tribunal expressed the view that "the advice that documents are missing is a refusal to give access, which is a reviewable decision. The review of a refusal may not be limited to grounds of exemption. Pursuant to section 54 the Tribunal has the same powers as the agency in respect to a request; accordingly, in my opinion, it can direct that further searches be undertaken." Thus at that stage the Tribunal formed the conclusion and expressed the view that it had jurisdiction in the issue of the missing documents and in those circumstances it formed the view it could determine on the evidence whether the documents no longer existed or simply could not be located and depending on the circumstances it might affirm the respondent's decision or directed further searches be made.’
52 The Court continued:
‘The argument was also advanced that the Tribunal had no power to review the response by the Victoria Police that the documents did not exist. The Tribunal clearly did conclude that it had that power at least in the circumstances here prevailing when it reached provisional views that the documents did exist but had been either suppressed or diverted out of the possession of the Victoria Police. I refer to statements made by the Tribunal and some of the preliminary decisions. The Tribunal took the view that it ultimately obtained the documents but should have got them earlier, in January 1998 on the so-called Napier inspection.’
53 The Court continued:
It would appear to me on examining the material that it was never asserted by the appellant Victoria Police that the documents were not relevant to the request but merely that they were missing. The argument was also advanced by Mr. Kaye that the whole issue of whether the search for documents had been adequate and thorough was never a matter for the Tribunal but only for the Ombudsman. I have already indicated my view this argument is incorrect. It may be that in many circumstances the matter might be run through the Ombudsman but once the Tribunal was seized of the issue, its right to direct appropriate inquiries could not be subordinated to and fettered by the overlapping power in the Ombudsman, if he were called upon to exercise the powers. It appears in this case, in any event, that the applicant before the Tribunal was putting the matter in a dual basis, namely that he would if necessary go the "Ombudsman route" but was first putting the case that since both parties and all of these issues were before the Tribunal, the Tribunal should deal with them.’
54 The Court continued:
‘In my judgment, there is nothing in the Act to suggest that the Tribunal did not have the jurisdiction which it decided it did have and did exercise. With respect to the argument there is no jurisdiction under s.52(a) to do anything other than review a refusal to grant access, it is an excessively narrow and unacceptable view of refusal. I reject that submission. In any event, s.27 was not likely to be intended to apply to a case in which the issue of proper disclosure of documents was actually before the Tribunal. It should be noted that the Lock affidavit was put in after the preliminary orders made by the Tribunal. It was the Lock affidavit that explained how Barnes had taken the documents and, moreover, that he had a track record of doing this. It was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal. It is obvious that the appellant did not deny that documents related to the public allegations of sabotage had existed. The failure of the appellant to call evidence as to the whereabouts of such documents (until the Lock affidavit) was significant and in my judgment a matter entitled to be taken into account by the Tribunal on the question of costs, as were all of the circumstances surrounding the long battle to get the appellant to produce the appropriate documents. The mere assertion on behalf of the appellant that no such documents were in its possession or control could not strip the Tribunal of the power to consider the matter. [emphasis added]’
55 In my view this approach is correct, and its relevance to New South Wales is not affected by textual differences between the Victorian Act and the NSW Act.
‘The question of access to these documents is not a question of benevolence and pursuant to s.13 of the Act the applicant had a legal and enforceable right to obtain access in accordance with the Act. In this particular case, the power of the Ombudsman to inquire appears to have been an irrelevancy. Section 27(1)(e) limits the ambit of that section where the decision does not relate to a request for access to a document that, if it existed, would be an exempt document. It is certainly arguable that the provisions of s.27(1)(a) might well exclude the Ombudsman's powers in the circumstance where the documents, if they were existed were similar to those with respect to which exemptions under s.31 were being argued for by the applicant to the Tribunal. I note that s.50(4) provides that on hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including the power to decide that access should be granted. The Tribunal ultimately made a decision, based upon the Coroner reporting that the Coroner's Court did not have the documents. Until 25 September 1998 that allegation that it did was unsupported by evidence. Neither the applicant nor the Tribunal had the opportunity to test it and it appeared to be inherently unlikely that the event had occurred. No police officer connected with the public statement by the Police Force that the fire had been caused by environmental saboteurs was ever called. In my judgment, the Tribunal stood against the proposition that the erection of an impenetrable barrier to the access of documents, conceivably embarrassing, should be permitted, and took a strong view about the effectiveness of the relief that it should order. It was not necessary for the Tribunal to decide whether or not a mere assertion that documents cannot be located, without any detail of any kind, could ever a proper evidentiary basis for determining whether or not the decision was one to which s.50 relates.’
56 The early Victorian decisions were examined and – I consider - criticised persuasively by the Queensland Information Commissioner in his decision in Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22; and deprived of any authority they may have had by the decision in Burton.
57 In particular, the Queensland decisions clearly make the link between the deemed refusal provisions and the right of the external review body, in that context, to examine sufficiency of search.
58 The Queensland decisions also examine the one Commonwealth case that deviates from the early Commonwealth line of cases, Re Kalman and Department of Veterans Affairs (unreptd, 23 October 1992, Forgie DP, Q91/619). In my view this decision is best understood as an instance where the agency’s response was seen as a full one (no documents considered to be covered by the request were refused), and therefore the deemed refusal situation did not arise. A similar illustration in this Tribunal is provided by my decision in Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 (set aside by Appeal Panel on an unrelated point).
59 I will now make some comments on the reasoning process of the Tribunal in Beesley . It had the following steps.
Reasoning Process in Beesley
60 At this point the Tribunal’s process of statutory construction ends, and it then refers to comparative case-law in other jurisdictions, to similar effect. It did not refer to the Victorian Tribunal decisions where the alternative view put by the agency in this case was accepted nor to the subsequent and different view expressed in Burton’s case .
(i) At [6] after referring to ss 16, 17 and 19, the Tribunal stated: ‘These provisions confirm that the right of application extends to “documents which may reasonably be expected to be in the possession of the agency ” [my emphasis] as well as to documents which the applicant can prove to be in its possession’.
(ii) At [8] after referring to s 24, the Tribunal stated:
(iii) At [9] the Tribunal finds support for this interpretation in the words of s 24(2), and states:
‘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 [my emphasis]. 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.’
(iv) At [10] that the opening words of s 25(1) [‘An agency may refuse access to a document’] ‘indicate that the section does not purport to be exhaustive of the grounds on which access can be refused under s 24(1)’. The provision ‘does not address the antecedent locating of documents identified in the request, and a determination flowing from a finding of “does not 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).’
[Section 63(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides:
‘(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.’]
(v) The Tribunal then continued at [11] that a determination refusing access may do so on ‘an implicit ground additional to one of those expressly listed in s 25(1)’. In the Tribunal’s view that there is such an ‘implicit’ ground ‘is confirmed in the generality of the language of s 28(2)(e). This requires a notice of a determination to specify:
The Tribunal continued further:
“(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).’
61 I do not agree with some of the steps in the reasoning in Beesley; and to that extent accept some of the submissions of the agency here.
62 In my view it is not helpful to construe ss 16, 17 and 19 as giving an applicant a right of access to ‘documents which might reasonably be expected to be in the possession of the agency’ (see step (i) above). As I have already explained, FOI legislation generally – and in this respect the NSW Act is no different – gives citizens a right to see all documents actually held by government, subject to various limitations. It is a mechanism for obtaining access to documents that are extant. It does not depend on any notion of ‘reasonable expectations’. While I agree (step (ii)) that the agency must respond to the ‘whole ambit of the request’ I do not think it can then be asserted that the agency is therefore obliged to provide all documents ‘which the applicant alleges to be ‘held’ by the agency regardless of whether this is in fact the case’.
63 But I do agree with the connection that Smith JM draws between the ‘deemed refusal’ provision (s 24(2)) and the need, on occasions, to put the agency to proof that it has fully responded to the request.
64 Section 28(1)(b) fits neatly into the scheme of the Act when understood in this way. Section 28(1)(b) deals with the circumstance where the request asks for documents that it is not in the agency’s power to disclose. That situation arises when a document the subject of a request is not ‘held’ by the agency. The applicant can, of course, contest such a notice through a complaint to the Ombudsman.
65 Raising of a section 24(2) question : In my view if an applicant contends that there has been a failure to locate relevant documents the Tribunal must decide whether the applicant is raising a s 24(2) question. The situation that arose in Burton underlines the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. The Tribunal may have to ascertain whether there has been a possible failure by the agency to address all documents in its possession. Such a failure can properly characterised as a refusal of the kind referred to in s 24(2); and is reviewable.
Conclusion
66 Were the agency’s submissions in the present case to be accepted, the Tribunal would be deprived of any capacity to go behind a mere statement by the agency that it does not hold any further documents.
67 An applicant is entitled to put such a statement in issue on the basis contemplated by s 24(2). To interpret the Act otherwise would result in a perversity. An agency could issue a token determination relating to some only of the documents identified by the request, and remain silent as to the other documents. Section 28(1)(b) is only concerned with the situation where documents are, as a matter of fact, not held by the agency.
68 I think it clear that the function of s 24(2) in the scheme of the Act is to ensure that an agency fully determines an application, and for such a refusal to be subject to the scrutiny of both internal and external review.
69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.
70 In considering whether there is an arguable issue, the Tribunal may, it seems to me, have regard to whether the applicant has, in the spirit of the Act, made the objection at the first reasonable opportunity. Normally this would occur at the time the original response to the request is received. This case is odd in that regard, in that the substantive determination refusing access to various documents was made after the application for review had been lodged with the Tribunal (the application for review, as filed, challenged an advance deposit determination), with the result that the applicant brought forward for the first time his contention that the response was inadequate when the matter was before the Tribunal.
71 The applicant will be in a stronger position where he or she has specified in relatively precise terms the documents that he or she is seeking, and has material to indicate that some documents relevant to the request are of a kind that should be held by the agency but have not been identified. This kind of situation presented itself in the early Queensland case, Smith.
72 The position is, obviously, much more difficult in cases where the original request is of a sweeping or vague character. There may be room for debate as to what precisely the request is seeking to cover. The applicant may have a very wide view of the request, and the agency a different and narrower view. The provisions already mentioned requiring the applicant to be reasonably precise and requiring the agency to consult with the applicant are the primary mechanisms in the Act designed to address this kind of difficulty.
73 This is a case of the latter type. The agency interpreted the request initially as possibly covering 3000 documents. So on its face the agency would not appear to have taken an unduly narrow view. On the other hand the applicant, who has made a number of similar requests to other agencies involved in the Flemington/Sydney Markets sale process, is discontented, it would seem, by comparing what he has received from this agency as compared to what has been revealed to him by the other determinations. Faced with a conflict of this kind, the Tribunal has occasionally, as it is permitted to do, referred the matter to the Ombudsman for review (see Administrative Decisions Tribunal Act 1997, s 39). But, in my view, the Tribunal is not bound to do so, if it is seized of a s 24(2) point.
74 If the Tribunal is satisfied that a s 24(2) question has been raised, it follows that it can directions of a kind which enable it to resolve the issue of whether a situation of deemed refusal has arisen. They may include directions relating to the sufficiency or adequacy of the search.
75 A simple hypothetical displays, I think, the difficulty of the agency’s blanket submission to the contrary of these views. Say an applicant specifies precisely 10 documents. All 10 documents are, as a matter of fact, held by the agency. They are, therefore, documents of the agency for the purposes of the Act, and covered by s 16. Nonetheless, innocently or otherwise, the agency only identifies 7 documents in its response, and asserts that the other documents are not held by the agency. Because situations of this kind could arise, it must follow, I consider that the Tribunal has power to examine the question of whether the reply given by the agency meets the terms of the request. That will, inevitably, require some inquiry into or examination of the steps taken by the agency to locate the affected documents.
76 This hypothetical is not, of course, reflective of a very common type of request, and the one seen in this case. This is the request cast in broad, global terms and not admitting easily of any precise definition. The present case involved an imprecise, global request; and the agency sought dealt with it, so far as I can judge from the material filed, without any further clarification being provided by the applicant until the submissions made 31 May 2005, referred to above.
77 It will always be a matter of judgement for the Tribunal, as I see it, as to the point at which it presses the agency to prove, to the extent it can, its conclusion that its determination has fully responded to the request.
78 It will be appropriate for the Tribunal to make directions putting the agency to the task of providing a response if an arguable case is presented that the agency has in fact failed fully to determine an application and therefore documents should be deemed refused (s 24(2)). This is necessary so that the Tribunal can identify whether any extant documents falling within the scope of the request have not been revealed.
79 If any such documents are identified, then the Tribunal would hear from the agency as to whether it relies on any exemptions or other grounds for denying access, and make a determination.
80 Alternatively, it might chose to remit the application to the agency to give the agency the opportunity to address the matter. If the circumstances suggested improper conduct, the Tribunal might consider activating its powers under s 58.
Order
1. First Respondent’s objection to jurisdiction dismissed.
2. Tribunal to reconvene to make further directions as appropriate.
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