Ferns v NSW Department of Corrective Services

[2007] NSWADT 293

Set aside by Appeal:

CITATION:	Ferns v NSW Department of Corrective Services [2007] NSWADT 293
DIVISION:	General Division
PARTIES:	APPLICANT Helen Ferns RESPONDENT NSW Department of Corrective Services
FILE NUMBER:	073112
HEARING DATES:	5 July 2007
SUBMISSIONS CLOSED:	5 July 2007
DATE OF DECISION:	13 December 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	amendment of documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Retail Leases Act 1994
CASES CITED:	Black v General Manager, Bathurst City Council [2001] NSWADT 239 Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s case) McGuirk v University of New South Wales [2007] NSWADT 257 Tringas v Quach (RLD) [2007] NSWADTAP 35 Wilmshurst v Vice Chancellor Macquarie University [2002] NSWADT 196
REPRESENTATION:	R Reitano, barrister T Anderson, barrister
ORDERS:	The Tribunal has no jurisdiction to hear and determine this application.

REASONS FOR DECISION

Introduction

1 Mrs Ferns has made an application seeking review of a decision of the NSW Department of Corrective Services (‘the Department’), made pursuant to the Freedom of Information Act 1989 (‘the FOI Act’) to refuse her request for an amendment to a letter, dated 24 January 2007, from Acting Commissioner Luke Grant to the Ombudsman, Mr Bruce Barber. Section 39 of the FOI Act gives every person a right to apply for amendment of an agency’s records which concerns his or her personal affairs where that record is incomplete, incorrect, out of date or misleading. That section relevantly provides as follows:

39 Right to apply for amendment to agencies’ records

A person to whom access to an agency’s document has been given more time for the amendment of the agency’s records:

(a) if the document contains information concerning the person’s personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions, and

(c) if the information is, in a person’s opinion, incomplete, incorrect, out of date or misleading.

2 Section 43(1) of the FOI Act provides that an agency must determine an application for amendment by either amending the record in accordance with the application or by refusing to amend the record. The grounds on which an agency may refuse to amend its record is set out in section 44, which relevantly provides as follows:
44 Refusal to amend records

An agency may refuse to amend its records in accordance with an application:

(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or

(b) …

(c) …

Background

3 Mrs Ferns had requested an amendment to paragraph 6 of the letter of Acting Commissioner Grant to the Ombudsman. In that paragraph Acting Commissioner Grant said:

“…Mrs Ferns has made in excess of 60 FOI applications (mainly on behalf of her son, Craig) applications for internal review and external review to the Administrative Decisions Tribunal (including one to the Appeal Panel) since late 2003 (excluding matters she has referred to the Ombudsman)…”
4 The amendment sought by Mrs Ferns was that a line be ruled through the words “in excess of 60 FOI applications” and placing a notation beside these words stating that the information was incorrect and misleading. In support of her request for amendment Mrs Ferns provided a list of the FOI applications that she, on behalf of her son, had made, during a 4 year period (i.e. 2003 to 2007) to the Department. The list also identified which of these 60 FOI applications internal and then external review had been sought. This list, which was not disputed by the Department, identified 38 FOI applications and of these FOI applications, an internal review requests was made in respect to 26 of the FOI applications and external review was sought in 11 of these FOI applications.

5 It should be noted that each of the FOI application related to Mr Ferns and his employment with the Department as a correctional officer. The majority of the FOI applications related to access to documents.

6 On 3 April 2007, Luke Grant, who was no longer Acting Commissioner but was in the position of Assistant Commissioner, Offender Services and Program, determined the amendment application lodged by Mrs Ferns. His determination was to refuse to make the amendment sought as, in his opinion, his letter of 24 January 2007 “ … correctly records that you had the time made in excess of 60 FOI applications including internal reviews and external reviews.” He went to say that “over 60” figure was a conservative figure and that the actual figure was in the vicinity of 79.

Issues

7 There are three matters in issue in this application. They are as follows:

(a) Does the tribunal have jurisdiction to hear and determine the application? The Department asserts that no such right exists as Mrs Ferns had not sought internal review of the decision that is the subject of this application: see section 53(2) of the FOI Act;

(b) Does the information of which Mrs Ferns seeks amendment concern her personal affairs: see section 39(c) of the FOI Act?

(c) Is the information of which Mrs Ferns seeks amendment incomplete, incorrect, out of date or misleading in a material respect?

For the reasons set out below, I have found that the Tribunal has no jurisdiction to hear and determine this application. While this is sufficient to dispose of the application I have also briefly dealt with the substance of the application.
Does the tribunal have jurisdiction?

8 The Tribunal’s jurisdiction to hear and determine this application arises by reason of section 38 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) and section 53 of the FOI Act.

9 THE ADT ACT-Section 38(1) of the ADT Act provides that the Tribunal only has jurisdiction to review an administrative decision where an enactment, other than the ADT Act, provides that applications can be made to the Tribunal for review of decisions made under the enactment. Accordingly, the Tribunal’s jurisdiction to review an administrative decision must be found in an enactment other than the ADT Act. These decisions are called ‘reviewable decisions’: see section 8 of the ADT Act. Section 53 of the FOI Act provides that a determination under section 43 of that Act is a reviewable decision by the tribunal: see section 53(1) of the FOI Act which is set out below.

10 Even if the requirements of section 38(1) of the ADT Act are met, section 55 of that Act contains further constraints to the Tribunal’s jurisdiction in regard to a reviewable decision. One of these constraints, found in paragraph 55(1)(b) is that an internal review must be taken to have been finalised under subsection 53(9) of that Act. Section 53 of the ADT Act provides a mechanism for internal review by an agency of a ‘reviewable decision’. It is of general application requiring those persons who are aggrieved by a decision of an agency to first seek internal review of the decision by another person within the agency. In this application there is no dispute that Mrs Ferns did not request an internal review and hence no internal review was undertaken. A failure to make an internal review request pursuant to section 53 of the ADT Act is not necessarily fatal to seeking external review by the Tribunal as subsection 55(2) of the ADT Act gives the Tribunal power hear and determine an application for review in particular circumstances notwithstanding that there was no internal review.

11 While section 53 and 55 of the ADT Act are of general application to ‘reviewable decisions’, where the enactment which gives the tribunal jurisdiction to review such a decision also contains internal review provisions, then these need to be read in conjunction with section 40 of the ADT Act. That section provides as follows:

40 When enactment taken to make contrary provision to this Act

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.

(4) In this section:

relevant enactment means an enactment under which the Tribunal has jurisdiction:

(a) to make an original decision, or

(b) to review a reviewable decision,

or that otherwise deals with the jurisdiction of the Tribunal.
12 The FOI Act – Sections 34, 47 and 53 of the FOI Act also provide a mechanism for internal review of decisions made under that Act and subsection 53(2) of that Act deals with the tribunal’s jurisdiction in regard to internal review determinations. Section of section 53 of the FOI Act relevantly provides as follows:
53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 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 subsection 34 or 47, or

(b) if the determination has been subject to a right of review under subsection 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) …

(c) in the case of a determination that relates to an access application made by the person under subsection 40, 47 or 49 – the determination is to the effect that an agency or Minister refuses to amend the agency’s records or that the Minister’s records, as the case may be, in accordance with the application

and the determination has been made as a consequence of a review under subsection 34 or 47 or has not been subject of a right of review under either of those sections.

(4) In relation to decisions under this Act that are reviewable decisions under the Administrative Decisions Tribunal Act 1997

(a) the procedure for internal review provided by this Act applies to the exclusion of section 53 (internal review) 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) …
13 As mentioned above sections 34 and 47 of the FOI Act make provision for internal reviews. Section 34 relates to original determinations of FOI applications for access documents (see section 24 of the FOI Act) and section 47 relates to FOI applications for amendment to documents held by an agency (see section 47 of the FOI Act).

14 Subsection 34(3) and 47(3) of the FOI Act set out circumstances in which a person is not entitled to make an internal review application. This includes a review of a determination that has been made by the ‘principal officer’ of an agency: see section 34(3)(b) and 47(3)(b) of the FOI Act. In regard to a Government Department, ‘principle officer’ is defined in section 6 to mean the Departmental Head of the Department, which in this application is the Commissioner. The letter for which Mrs Ferns seeks amendment was written by Luke Grant while he was Acting Commissioner. However, Luke Grant’s determination of Mrs Ferns’ FOI application was not made in this capacity. Accordingly, the decision the subject of review was subject to a right of internal review under section 47 of the FOI Act. This however, was not reflected in Assistant Commissioner Grant’s notice of determination to Mrs Ferns. In that notice he informed Mrs Ferns that her appeal rights were direct to the Tribunal or the Ombudsman. He was clearly wrong. However, his error does not give the tribunal jurisdiction to hear and determine this application. The Tribunal’s jurisdiction arises from the FOI Act and the ADT Act alone.

15 Accordingly, the question is whether subsection 53(2) of the FOI Act is a contrary provision to subsection 55(2) of the ADT Act. If it is, then the Tribunal has no jurisdiction to deal with this application as no internal review was sought within the time prescribed under section 47 of the FOI Act.

16 The Tribunal has considered a similar issue of statutory construction in the context of the Tribunal’s power under sections 44 and 57 of the ADT Act to extend the time within which an application for an original decision or a reviewable decision can be lodged: see Tringas v Quach (RLD) [2007] NSWADTAP 35, Black v General Manager, Bathurst City Council [2001] NSWADT 239 and Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196. In Tringas the Appeal Panel considered whether the Tribunal could exercise its power under section 44 of the ADT Act to extend the time prescribed under the Retail Leases Act 1994 for applications to the Tribunal for the appointment of 2 specialist retail valuers. The Appeal Panel at [60] found that the time period prescribed in the Retail Leases Act 1994 (21 days) could not be extended under section 44 of the ADT Act, as by reason of the express words of section 40 of the ADT Act, the provision of the Retail Leases Act 1994 was a contrary provision. Black and Wilmshurst related to the Tribunal’s power under section 57 of the ADT Act to extend the time period prescribed under section 54 of the FOI Act. A similar conclusion was reached in these decisions in that section 54 of the FOI Act was held to be a contrary provision to section 57 of the ADT Act. Each of these decisions relied on an earlier decision in Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062.

17 For the same reasons I find that sections 34, 47 and 53(2) of the FOI Act are contrary provision to that which is contained in sections 53 and 55(1)(b) and (2) of the ADT Act. This is also made expressly clear in subsection 53(4) of the FOI Act which provides that the internal review provisions of that Act apply to the exclusion of the internal review provisions in section 53 of the ADT Act.

18 Accordingly, as Mrs Ferns has not sought internal review of the decision of Assistant Commissioner Grant the tribunal has no jurisdiction to hear and determine this application.

Substantive application for amendment

19 As indicated above I will briefly deal with the issues that have arisen in respect to the substantive application.

20 The first issue is whether the information for which Mrs Ferns has sought amendment is information concerning Mrs Ferns’ ‘personal affairs’. This is not a term that is defined in the FOI Act and it has been accepted that it should be given its ordinary meaning. In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s case), Kirby P held that the words “personal affairs” in the context of the FOI Act meant “the composite collection of activities personal to the individual concerned”. This meaning has been accepted by the Tribunal on numerous occasions. And in my opinion, the information for which Mrs Ferns seeks amendment does concern her personal affairs. The fact that she has made an FOI application, whether it be on her own behalf or that of her son, is information personal to her. That is, it is an activity personal to her and the fact that she has made a number of applications does not alter this.

21 I also find that the information for which Mrs Ferns has sought amendment is either incorrect or misleading in a material particular. The letter was written in response to an external review application Mrs Ferns, on behalf of her son, had made to the Ombudsman from an earlier decision of the Department to refuse to amend a record of the Department. When the information for which Mrs Ferns has sought amendment is read objectively and in this context, in my opinion it asserts that Mrs Ferns has made more than 60 FOI applications, that each application related to amendment of records held by the Department and that internal and external review requests were made in respect to each application. On the basis of the list filed by Mrs Ferns, and not disputed by the Department, this is clearly incorrect in a material particular. As mentioned above the list provided by Mrs Ferns identifies 38 FOI applications of which 12 were applications for amendment of records. Furthermore, of the 38 FOI applications internal review was sought in 26 applications and of these 26 applications external review was sought in 11 applications.

22 As noted above, the amendment sought by Mrs Ferns in her FOI application was the deletion of the words “in excess of 60 FOI applications” and a notation to the effect that she had “only made 38 FOI applications”.

23 In my opinion, had I been required to deal with the substantive application, I would have made orders to reflect that the words “in excess of 60” was incorrect in a material particular and the record be amended to strike these words out and insert in substitution thereof the number “38”. Similarly the insertion of the actual number of internal and external reviews would correct the misleading manner in which these are currently referred to.

Orders

The Tribunal has no jurisdiction to hear and determine this application.