Druett v Department of Community Services

[2003] NSWADTAP 38

Appeal Panel - Internal

CITATION:	Druett v Department of Community Services [2003] NSWADTAP 38
PARTIES:	APPLICANT Garry Keith Druett RESPONDENT Director General, Department of Community Services
FILE NUMBER:	039048
HEARING DATES:	6 August 2003
SUBMISSIONS CLOSED:	08/06/2003
DATE OF DECISION:	08/06/2003
DECISION UNDER APPEAL:	Druett v Director General, Department of Community Services [2003] NSWADT (23 May 2003) unreported
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Mapperson K - Member
CATCHWORDS:	access to documents - confidential material - access to documents - operation of agencies - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operation of agencies
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023091
DATE OF DECISION UNDER APPEAL:	05/23/2003
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Druett v Director-General, Department of Community Services [2003] NSWADT (23 May 2003) unreported
REPRESENTATION:	APPLICANT In person RESPONDENT E Robertson, solicitor
ORDERS:	Appeal dismissed

DELIVERED EX TEMPORE

REASONS FOR DECISION

1 HIS HONOUR: Mr Druett has appealed against a decision of the Tribunal, made by Mr Robinson on 2 May 2003, which was the subject of written reasons, issued on 23 May 2003: see Druett v Director-General, Department of Community Services [2003] NSWADT (23 May 2003), unreported. That decision deals with the question of jurisdiction. The Tribunal was satisfied that, as at that point, the application for a review was premature, in that the agency had not been given the opportunity required by the Freedom of Information Act 1989 (s 34) to undertake internal review of the decision put in dispute.

2 The provisions of the FOI Act involve a scheme of administration that starts with the applicant for access to documents, making an application to the Department. The relevant officer at the Department determines the application. If the applicant is dissatisfied, the applicant can seek an internal review by the Department.

3 Conventionally, that internal review is undertaken by a more senior officer in the Department, who was not involved in the first determination. Then if the outcome of that internal review is not satisfactory to the applicant, at that point, the applicant can make an application for an external review.

4 There are some other provisions that may be relevant to this case, to do with timeliness. That is, the application for internal review is governed by time requirements, as is the exercise of the power to undertake the internal review – that is also governed by time requirements. Some of those matters have been alluded to in discussion today, with the parties.

5 The notice of appeal challenges the decision of the Tribunal. It is in hand-written form, and describes the errors of law in the Tribunal’s decision as being: ‘that the decision for review was a reviewable decision; that the Department will not allow me access to a file on me; that application for internal review is not possible? (re time limits); that the Department’s representative undertook to process the application for review on 5 March 2003, and nothing has eventuated.’

6 So there are some factual issues raised by the points of appeal. They are all matters that would have been capable of being the subject of evidence before Mr Robinson. There is no reference to him having received any evidence on those matters.

7 The applicant has explained today that he has now taken steps to obtain an internal review in respect of the request for access to documents that underlies these proceedings in the Tribunal. He says that he made the request for internal review on 17 July 2003, to the Blacktown Community Services Centre. It would appear that the Department’s legal representative, who is here today, has only become aware of that possible application by the appellant, as a result of what has been said this morning.

8 So one initiative the Appeal Panel has taken, is to ask Mr Druett – and I think he proposes to proceed this way in future – to make all his communications to a designated officer at the Department, and an address has been provided to him. But as matters stand today, there is no apparent error in Mr Robinson’s decision. He found that there was no internal review application filed in respect of the original request (made 10 December 2001) and its determination (26 July 2002). So it is clear that, in those circumstances, the Tribunal does not have jurisdiction and it is so decided.

9 He also alluded in the decision to the possibility that the applicant might now put on an internal review application, and that seems to have occurred. He also made the point that once Mr Druett has filed his internal review application, it is really up to the Agency, as to whether it permits the late internal review application; and that it not a matter that it would have been appropriate for him to comment on. We would reiterate those views. It is not a matter upon which the Appeal Panel would wish to comment.

10 So the position is that the decision of Mr Robinson is upheld, and therefore Mr Druett’s appeal must be dismissed.

ORDER

1. Appeal dismissed.