Curtin v Vice-Chancellor, University of New South Wales (No 2)

[2006] NSWADT 56

CITATION:	Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56
DIVISION:	General Division
PARTIES:	APPLICANT Peter John Curtin RESPONDENT Vice-Chancellor, University of New South Wales
FILE NUMBER:	053137
HEARING DATES:	15/07/2005 & 7/09/2005
SUBMISSIONS CLOSED:	09/07/2005
DATE OF DECISION:	02/24/2006
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Protected Disclosures Act 1994
CASES CITED:	Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 B v Commissioner of Police [2000] NSWADT 168 Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464 Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 Curtin v Vice-Chancellor, University of New South Wales [2005] NSWADT 104
REPRESENTATION:	APPLICANT In person RESPONDENT M Toomey, Assistant University Solicitor, UNSW and D Osborn, Freedom of Information Officer, UNSW
ORDERS:	1. Decision under review is affirmed

1 This application, as filed with the Tribunal, sought review of a determination made by the respondent agency under the Freedom of Information Act 1989 (FOI Act). In the course of the planning meetings the applicant withdrew his application in so far as it contested the respondent agency’s reliance on various exemptions to justify its refusal to give access to certain documents. However, he continued to press his concern that the search undertaken by the agency in response to his request was insufficient. The Tribunal held a hearing on 7 September 2005 was confined to the sufficiency of search issue. This decision deals with that issue.

2 Before continuing, I should note that in proceedings in another matter in the Tribunal during February 2006 a respondent agency has raised a jurisdictional objection to the Tribunal conducting an inquiry into sufficiency of search. The agency has contended that such a jurisdiction is not conferred on the Tribunal by the FOI Act. The hearing of argument is yet to occur.

3 In this case the parties accepted that the Tribunal did have jurisdiction. I will not revisit that question on this occasion. I will proceed in this decision on the assumption that the case-law establishing the existence in the Tribunal of such a jurisdiction is correct: the key case is Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52.

4 In Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 I noted:

‘50 Sufficiency of search challenges are difficult ones for applicants to establish. The agency will ordinarily put on evidence from relevant personnel. Here it was the officer in charge of the investigations, and an officer with authority to search Internal Affairs records. The applicant does not have inside access to the records system, and is left as occurred here to ask questions that might demonstrate some weakness in what was done.…