Cosenza v SAPOL

[2018] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)

COSENZA v SAPOL

[2018] SADC 56

Judgment of His Honour Judge Chivell

4 June 2018

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - RIGHT OF ACCESS - GROUNDS FOR REFUSAL

Appeal pursuant to s 40 of the Freedom of Information Act 1991. Application for access to documents. Constructive refusal of access as time limits not complied with by the respondent. The respondent initially argued that the determination to refuse access was justified because the application was ‘part of a pattern of conduct that amounts to an abuse of the right of access’. Later, the respondent consented to the appeal being allowed in order to vary the determination by substituting a declaration that the documents sought by the applicant do not exist and never existed.

Held:  Appeal allowed. Determination of respondent varied by substituting a declaration that the documents sought by the applicant do not exist and never existed.

Application pursuant to s 42 of the Act that there be an inquiry into whether an officer of SAPOL had been guilty of breach of duty or misconduct in the administration of the Freedom of Information Act.

Held: No jurisdiction to conduct inquiry. No evidence arose in the proceedings to justify the findings sought. Application dismissed.

Freedom of Information Act 1991 (SA) s 12, s 13, s 14, s 14A, s 18, s 19, s 23, s 29, s 40, s 42; Expiation of Offences Act 1996 s 13; Knight v University of Adelaide [2017] SACAT 44, referred to.

COSENZA v SAPOL
[2018] SADC 56

1. This is an appeal pursuant to s 40 of the Freedom of Information Act 1991. The Act has since been amended. Such appeals are no longer to this Court. There is now an application for review to the South Australian Civil and Administrative Tribunal (SACAT).

2. Mr Cosenza committed certain offences, which he describes as G3475447A, G5628336A and Q5028207B. I have no information about the nature of the offences, or where or when he committed them. He says he denies the offences. I have no information about why he did not adopt the procedure available for pleading not guilty to the offences if that is his attitude.

3. I assume that the offences were traffic offences since they involve South Australia Police (SAPOL). Mr Cosenza received notice that his driving licence had been suspended because he did not pay the expiation fees for the offences.

4. The present appeal arises out of the refusal by SAPOL to provide information about the expiation procedure adopted in his case. The procedure is set out in the Expiation of Offences Act 1996. Section 13(1)(a) of that Act required the issuing authority, in this case SAPOL, to certify to the Fines Enforcement and Recovery Officer, or FERO, the relevant details of the offender, the offence, the amount due and a confirmation that the issuing authority had complied with the Act. The FERO is an officer of the Attorney-General’s Department created by the Criminal Law (Sentencing) Act 1988.

5. On 13 September 2016, Mr Cosenza requested:

   ·‘Any and all information, documents, communications for purposes of issuing a certificate … pursuant to s. 13 Expiation of Offences Act 1996 that relate to (my) alleged offences’;

   ·‘A copy of any and all certificates issued within the relevant period … that relate to my offences’.

6. I note that the Expiation of Offences Act was recently amended by deleting s 13.

7. An application of the type made by Mr Cosenza is authorised by s 12 of the Freedom of Information Act 1991 (FOI Act). Section 13 sets out the requirements for making an application. There is no suggestion that the application did not comply with the requirements of that section. Section 14(2) of the FOI Act requires that the application be dealt with as soon as reasonably practicable, and in any case within 30 days of receipt. It was not. There is a procedure under s 14A to extend the time limit but that was not used in this case.

8. Section 19 of the FOI Act requires the agency to ‘determine’ the application (that is, to decide whether access to the information is to be given or refused, and whether charges are payable). If it does not do so within 30 days, or within any extended time:

   the agency is to be taken to have determined the application by refusing access to the document to which it relates …

9. Mr Cosenza took his application to have been refused, so he sought an internal review pursuant to s 29 of the FOI Act. Section 29(5) provides that if the application is not determined within 14 days of receipt, it is ‘to be taken to have confirmed the determination in respect of which a review is sought’.

10. Mr Cosenza’s application for review was not determined within time, although according to Ms Gentgall, the SAPOL FOI officer, the ‘determination’, presumably the original determination, was ‘close to completion’.[1]  Ms Gentgall said she advised Mr Cosenza of this by letter dated 24 October 2016.

    [1]    Affidavit of Tracy McLeod Gentgall sworn 16.2.17.

11. Mr Cosenza filed a Notice of Appeal on 14 November 2016.

12. A day later, Ms Gentgall made a determination to refuse the application pursuant to s 18(2a) of the FOI Act. That section authorises an agency to refuse to deal with an application ‘if, in the opinion of the agency, the application is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information’.

13. Although this has not been specifically argued, it seems to me that Ms Gentgall’s determination was invalid. The determination was the constructive determination pursuant to s 19 of the Act to refuse access to the documents.

14. In an affidavit sworn on 16 February 2017, Ms Gentgall referred to multiple previous applications by Mr Cosenza seeking the same or similar material, and applications in rapid succession.

    The First Hearing

15. The appeal came on for hearing before me on 5 May 2017. Mr Cosenza appeared in person and Ms Mitchell appeared for SAPOL.

16. At the commencement of the hearing, I asked Ms Mitchell whether there were any documents in the possession of SAPOL which came within the terms of Mr Cosenza’s request. She indicated that she had no instructions about that. Ms Mitchell submitted that whether or not the documents existed was irrelevant to the determination pursuant to s 18(2a). Ms Mitchell was also unable to tell me whether the requests before me were the first and second, or were later in the string of multiple applications.

17. After taking further instructions, Ms Mitchell informed me that SAPOL held no documents which came within the terms of the request; in other words, it held no certificates pursuant to s 13(1)(a) of the Expiation of Offences Act.

18. Mr Cosenza regarded this disclosure as ‘outrageous’, and alleged that SAPOL’s resort to s 18(2a) of the FOI Act was a ruse to hide the fact that no certificates existed and that the actions being taken to enforce the expiation debts were unlawful. He requested that I ‘take action’ pursuant to s 42 of the FOI Act. At the time, s 42 provided:

    If, at the completion of any proceedings under this Division, the District Court is of the opinion that there is evidence that a person, being an officer of an agency, has been guilty of a breach of duty or of misconduct in the administration of this Act and that the evidence is, in all the circumstances, of sufficient force to justify it doing so, the Court may bring the evidence to the notice of—

    (a)   …

    (b)   …

    (c)   if the person is an officer of an agency but not the principal officer of the agency—the principal officer of that agency.

19. Mr Cosenza requested a written ‘determination’ from SAPOL that the documents did not exist. Ms Mitchell indicated that she would pass on the request to SAPOL.

20. The appeal was adjourned sine die, with liberty to apply to call the matter on again if it was necessary.

    The Second Hearing

21. In January 2018, Mr Cosenza applied to have the matter brought on again to deal with an application by him that Ms Gentgall be found guilty of breach of duty or misconduct pursuant to s 42 of the FOI Act.

22. Mr Cosenza applied for an order that Ms Gentgall be called to give evidence and be cross-examined about what has happened. This matter was postponed to await an appeal from a judgment from Kourakis CJ involving a related issue.

23. Mr Cosenza filed a ‘Second Notice of Appeal’ on 9 April 2018, and a ‘Third Notice of Appeal’ on 24 April 2018. I will ignore the second one. In the Third Notice of Appeal, he asserts a right to amend the ‘Orders Sought’ section of the notice. However, he requires my permission to do so. The orders he seeks in the Third Notice of Appeal are as follows:

    1.  That as the application was not determined within 30 days after its receipt access to the documents has been refused.

    2.  That as the application for review was not determined within 14 days after its receipt the original determination was confirmed.

    3.  That the documents/certificates sought by the appellant do not exist and have never existed.

    4. The applicant seeks a declaration that the respondent’s conduct is an abuse of process and an order for disciplinary action to be taken against the officer and agency pursuant to s 42 of the FOI Act.

    5.  A declaratory order that the officer is guilty of a breach of duty or of misconduct in the administration of the FOI Act.

    6.  A declaratory order that the officer abused her position in public office.

    7.  Costs.

    8.  Such other orders as the Honourable Court thinks fit.

24. I grant permission to amend the Notice of Appeal in terms of the document entitled ‘Third Notice of Appeal’.

25. By letter dated 23 April 2018, Ms Mitchell advised Mr Cosenza that SAPOL conceded that I should make findings consistent with orders 1, 2 and 3 above, and that I should remit the matter to SAPOL to make a determination consistent with those findings pursuant to s 23(1)(b) of the FOI Act.

26. Section 23(1)(b) provides:

    (1)   An agency must notify an applicant in writing—

    (a) …

    (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.

27. I do not consider that it is necessary to remit the matter. I have power to vary the determination in the terms sought.

28. Ms Mitchell gave notice that SAPOL objected to proposed orders 4 to 8 on the basis that I have no jurisdiction to make them.

29. Mr Cosenza submits that, now that the substantive issue in the appeal has been resolved in his favour, I should proceed to conduct an inquiry into the conduct of Ms Gentgall and/or any other officer of SAPOL with a view to taking the action described in proposed orders 4, 5 and 6 above. He provided me with very helpful written submissions about my wide powers to make the declarations he seeks.

30. However, I take the view that the only powers I have in the context of this appeal are those granted by the FOI Act. The appeal is a creature of that statute, and the statute provides a code which sets out the jurisdiction of the appellate court.

31. In Knight v University of Adelaide, Hughes J said:[2]

    The Tribunal’s powers on review are to affirm, vary or set aside the decision in question and make ancillary orders. Subject to the power to find that there is evidence of breach of duty or misconduct in the administration of the FOI Act on the part of an officer of an agency under s 42 of the FOI Act, it is not the role of the Tribunal to undertake a wide-ranging investigation of the FOI process conducted by the agency, disconnected from any assertion that the outcome was wrong.

    [2] [2017] SACAT 44 at [49].

32. The words in s 42 of the FOI Act which make this plain are:

    If, at the completion of any proceedings … there is evidence that a person … has …

33. In my view, the section requires that there must be evidence before the Tribunal at the completion of the proceedings. The proceedings will be complete once I vary SAPOL’s determination in accordance with s 23(1)(b) of the FOI Act.

34. The order varying the determination will have been made by consent and not on the basis of evidence, other than the contents of Ms Mitchell’s letter dated 23 April 2018, in particular the concessions made therein.

35. There is no evidence before me to justify making the orders sought numbered 4, 5 and 6. The power to take action under s 42 is incidental to the power to determine the merits of the appeal, and only arises if there is evidence arising from that process which would justify such action being taken.

36. In those circumstances, I hold that I do not have jurisdiction to conduct an inquiry to ascertain if any evidence exists that would justify making orders pursuant to s 42.

37. Pursuant to s 23(1)(6) of the FOI Act, and by consent, I vary the constructive determination made by SAPOL pursuant to s 19 of the Act refusing access to the documents sought by Mr Cosenza, by substituting a determination that the documents requested do not exist and have never existed.

38. That completes the proceedings. As to the application pursuant to s 42 of the FOI Act, I find that there is no evidence before me to justify a finding that there has been a breach of duty or misconduct in the administration of the FOI Act. That application is dismissed.

39. I will hear the parties about costs and any ancillary orders.