Ford and Child Support Registrar

[2005] AATA 860

CATCHWORDS – FREEDOM OF INFORMATION – jurisdiction – identification of decision under review – deemed decision circumscribed by terms of request.

Administrative Appeals Tribunal Act 1975 ss. 25 and 37
Public Service Act 1999 ss. 13 and 15

Freedom of Information Act 1982 ss. 15, 18, 23, 37, 54, 55, 56 and 58

Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (1992) 16 AAR 319; 28 ALD 368

DECISION AND REASONS FOR DECISION [2005] AATA 860

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )       V2004/1184, V2005/220 &
GENERAL ADMINISTRATIVE DIVISION     )       V2005/740-741

Re                JOHN FORD

Applicant

AndCHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  2 September 2005
Place:  Melbourne

Decision:The Tribunal’s jurisdiction is limited to reviewing:

(1)the respondent’s deemed refusal of the applicant’s request dated 29 July 2004 and expanded upon in his letter dated 20 August 2004; and

(2)the respondent’s deemed refusal of the applicant’s request dated 6 December 2004.

S A FORGIE

Deputy President

REASONS FOR DECISION

Mr John Ford has made three requests to the Child Support Registrar (“CSR”) for access to documents under the Freedom of Information Act 1982 (“FOI Act”). He has lodged three applications in the Tribunal for review of decisions made by a delegate of the CSR.[1]  I must decide the scope of the decisions under review and to which of his requests they relate.  I have decided that the Tribunal’s jurisdiction is limited by the terms of the decision.  As the decisions are deemed decisions, their terms are necessarily defined by the terms of Mr Ford’s request.

LEGISLATIVE BACKGROUND

The Tribunal’s jurisdiction to review a decision

[1] He has lodged two further applications for review of the CSR’s decisions not to amend or annotate personal records under Part V of the FOI Act. These are not the subject of the current consideration.

1. The Tribunal may only review a decision if it is specifically given the power to do so by either the Administrative Appeals Tribunal Act 1975 (“AAT Act”) or another piece of legislation. This is the effect of s. 25 of the AAT Act. Section 25(1) provides that:

“An enactment may provide that applications may be made to the Tribunal:

(1)for review of decisions made in the exercise of powers conferred by that enactment; or

(2)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made.[2]  Once these criteria have been met, the Tribunal has power to review any decision in respect of which an application is made under an enactment.[3]

[2] AAT Act, s. 25(3)

[3] AAT Act, s. 25(4)

Review under the FOI Act

1. In broad terms, a person may apply to the Tribunal for review of three sorts of decisions:

   (i)a decision of the sort specified in s. 55(1) of the FOI Act or, if it was a decision in respect of which a person could ask for internal review under s. 54 and a decision has been made on that review, the decision made on review;

   (ii)a decision of the sort specified in s. 55(1) if a person has applied for internal review under s. 54 but 30 days have passed since the agency received that application, and no decision has been received;[4]

   (iii)a deemed decision refusing access in accordance with a request under s. 15 and either 30 days, or any extension of that period, have passed without the person’s receiving notice of a decision on that request;[5] and

   (iv)a decision, which is made after an application has been made to the Tribunal for review of a decision but which does not grant, without deferment, access to the documents requested, may be incorporated in the Tribunal’s review of the decision.[6]

   [4] FOI Act, s. 55(2)

   [5] FOI Act, s. 56(1)

   [6] FOI Act, s. 56(5)

1. As the Tribunal has power to review any decision in respect of which an application is made under an enactment, the Tribunal has power to review any of the decisions in the four categories as above.  There must be limits on its power and they are drawn in part by the decision but in part by the person’s initial request for access to documents.  I will illustrate that by reference to a decision in the third of the above categories as Mr Ford has sought review of deemed decisions and not of decisions that have been made by the CSR.  Section 56(1) provides:

   “Subject to this section, where:

   (a)a request has been made to an agency or Minister in accordance with section 15; and

   (b)the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and

   (c)notice of the decision on the request has not been received by the applicant;

   the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have been made, on the last day of that period, a decision refusing to grant access to the document.”

1. It is clear from the terms of s. 56(1) th+at the decision that is deemed to have been made is a decision refusing to grant access to the document that has, or documents that have, been requested.  That means that the boundaries of the deemed decision are determined by the limits of the request.  As the Tribunal is given the power to review that deemed decision, the boundaries of its review are equally determined by that request.  Just as the Tribunal cannot go beyond those boundaries nor can the person making the request go outside the boundaries he or she drew for him or her self in the original request.  That is to say, the Tribunal cannot consider documents that the person did not ask for in the original request.

1. In reviewing a decision, the Tribunal has:

   “… power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act could have been or could be decided by the agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.”[7]

   [7] FOI Act, s. 58 but this is limited by the fact that, unlike the agency or Minister, the Tribunal may not decide to grant access to a document if it is established that the document is an exempt document: FOI Act, s. 58(2).

1. Again, the decision making power is linked to the request. That is consistent with the right given under the FOI Act to be given access to a document in accordance with that legislation where “… a request is made … for access to a document of an agency or an official document of the Minister …”.[8]  The right, in turn, is consistent with the designation of the persons who may make “… a decision in respect of a request made to an agency …”.[9]

   [8] FOI Act, s. 18

   [9] FOI Act, s. 23

BACKGROUND

1. For the purposes of setting the background to the matters I must decide, I set out a brief history of how these matters have come to the Tribunal. In doing so, I have relied on the affidavit of Ms Samantha Fahey, documents lodged under s. 37 of the AAT Act (“T documents”) in file Nos. V2004/1184 and V2005/220, the information in file Nos. V2004/1184 and V2005/220 and correspondence from Mr Ford. Mr Ford has also lodged two further applications in the Tribunal: V2005/740 and V2005/741. Those applications relate to his request to the CSA to amend or annotate personal records and are not relevant to my consideration.

Mr Ford’s employment with Child Support Agency

1. Mr Ford was employed with the Child Support Agency (“CSA”) from 23 August 1999 to 7 July 2004.  From late 2002 to January 2004, Mr Ford had a relationship with a female employee of the CSA.  He has been charged with criminal offences arising out of his association with that female employee and is presently on remand awaiting trial. 

1. Mr Chris Cummins is the Co-ordinator, CSA Investigations, Fraud Prevention and Control (“FP&C”), which is located in the Australian Taxation Office (“ATO”).  On 17 February 2004, he began an investigation into Mr Ford’s actions in light of the standard of conduct required under the APS Code of Conduct.  He asked CSA for a “snapshot” of Mr Ford’s and the female officer’s Outlook and H drives on the CSA’s computer system including those items that had been deleted from Outlook.  On 3 May 2004, Mr Cummins referred the results of his investigation to Mr Mick Honner, Human Resources Manager, CSA.

1. Mr Honner found that Mr Ford had breached ss. 13(3), (7) and (11) of the APS Code of Conduct set out in the Public Service Act 1999 (“PS Act”). He imposed one of the sanctions permitted under s. 15 of the PS Act – termination of employment – and did so with effect from 7 July 2004. Mr Ford has commenced proceedings in the Australian Industrial Relations Commission for unfair dismissal but they have been adjourned pending the outcome of the criminal proceedings.

Mr Ford’s requests

1. Mr Ford has made four requests to the CSR.  I have based the following summary of those requests on the information filed in relation to the applications Mr Ford has lodged in the Tribunal and have also included the applications Mr Ford has made to the Tribunal.

(1)27 June 2004

Mr Ford sent a letter to Mr Mick Homer on 27 June 2004.[10]  Mr Homer is the Manager, Human Resources in the CSA.[11]  Among the matters Mr Ford raised was his request for:

[10] Letter attached to Mr Ford’s application for review: V2004/905

[11] Affidavit of Ms Lauren Samantha Fahey sworn on 22 June 2005 and filed in V2004/1184 and V2005/220

(a)a full copy of the file and all related documentation to do with the APS Code of Conduct investigation;

(b)any email communications between senior CSA staff regarding the investigation; and

(c)any documented communications by email that are about Mr Ford and that can be identified and, if necessary, reconstructed by FP&C.

He applied to the Tribunal on 5 August 2004 on the basis that he had received no acknowledgement of, or decision regarding, his request.  By a letter dated 20 August 2004, Mr Ford withdrew his application after he was advised by the CSA that it would deal with his request.  The CSA’s acknowledgement was dated 13 August 2004.[12]

[12] Letter attached to Mr Ford’s application lodged on 13 October 2004 in V2004/1184

(2)26 July 2004

Mr Ford wrote to the FOI Officer at the FP&C of the ATO and requested the following emails created on and after 1 November 2003:

(a)“… copies of all emails wherein I am mentioned between CSA staff members Geoff Mutton, Gary Champion, Janice Lappin, Mick Honner, Michelle Bentley, and any other senior staff and team leaders.”[13]

[13] T documents V2004/1184 at 7

(b)“… deleted emails, where recoverable from each individual H drive where the email concerns me and/or my circumstances.”[14]

[14] T documents V2004/1184 at 7

(c)“… any existing or recoverable emails from CSA staff member Natalie Jenkins where I am mentioned or discussed in any way or fashion.”[15]

[15] T documents V2004/1184 at 7

In accordance with s. 16 of the FOI Act, FP&C transferred the request to Ms Dolores Schneider at the CSA Legal Services and Ms Schneider acknowledged it on 30 July 2004.[16]

[16] Mr Ford’s letter to Ms Murphy dated 20 August 2004: T documents, V2004/1184 at 11

(3)       29 July 2004

Mr Ford wrote to the FOI Officer at the CSA requesting:

(a)“… a full copy of the investigation file on breaches of the APS Code of Conduct, with all details of allegations, evidence, investigation and determination.”[17]

[17] T documents V2004/1184 at 8

(b)“… copies of all emails existing or deleted and recoverable wherein I or my situation are discussed between CSA staff Gary Champion, Janice Lappin, Michelle Bentley, Mick Honner, Geoff Bentley, CSA Site Managers, Improvement Officers and Team Leaders.”[18]

[18] T documents V2004/1184 at 8

(c)“… any other correspondence in any form relating to myself or my situation.”[19]

[19] T documents V2004/1184 at 8

(4)20 August 2004

Mr Ford wrote to Ms Murphy, Specialised Client Services Manager, Regional Client Matters, with the CSA and noted that he had withdrawn his application for review based on his request dated 27 June 2004.  He referred to his request dated 29 July 2004 and said that he needed to:

“… expand the request for the investigation file, and the request via FP&C to include the following:

I request that all emails in all folders and subfolders existing in my OUTLOOK and H drives be provided to me, and a summary of folder titles and numbers of emails in each be given.

I request that all emails in all folders and subfolders existing in OUTLOOK and H drives of the following staff, where those emails relate to, mention or discuss me: Jarryd Williams, Sean Epstein, and Natalie Jenkins.  This request I restrict to the period 1 October 2003 to present, and includes any emails deleted and recoverable.”[20]

[20] T documents V2004/1184 at 11-12

On 13 October 2004, Mr Ford lodged an application No. V2004/1184 in the Tribunal for review of a decision:

“… not to action or address or respond to a proper request under the Freedom of Information Act, according to legislation and procedural guidelines.

…”

Mr Ford referred to the letter he had attached to his application.  In that letter, he referred to his request dated 29 July 2004 that he had expanded in his letter dated 20 August 2004.  As he had not received a decision from CSA, or more accurately, the CSR, within 30 days and as the CSR had not extended the period within which it could make a decision, he had applied for review to the Tribunal.

(5)27 October 2004

Mr Ford wrote to the FOI Co-ordinator, Regional Client Matters at the CSA and directed it to Ms Mary Brecely. He referred to correspondence he had received from Deacons, which acted for the CSA. He requested under the FOI Act:

“… any documents, letters or emails, or copies thereof, of any correspondence from CSA to Deacons concerning myself.  I include in this request any emails between CSA staff of management level, existing or deleted, as I know these are recoverable (having separate advice from ATO FP&C) concerning myself directly or by implication or inference, subsequent to previous FOI request.”[21]

[21] T documents V2004/1184 at 15

(6)6 December 2004

Ms Schneider made a decision on 1 December 2004 referring to the requests he had made under the FOI Act in letters dated 26 and 29 July 2004, 20 August 2004 and 27 October 2004. In her reasons, she said, in part, that she had decided that certain statements from persons in relation to the investigation were exempt under s. 37(1)(c) of the FOI Act. In giving her reasons, she said:

“I consider the exemption claim to be satisfied in this case as there is a documented history of violence against the persons referred to in the statements.”[22]

Mr Ford wrote to Ms Schneider on 6 December 2004.  After referring to this passage of her reasons he wrote:

“… I request under the FOI Act 1982 all the documents to which you refer – I would like to see this ‘documented history of violence against persons’. …”[23]

On 16 March 2005, Mr Ford lodged an application for review of a:

“Deemed refusal of request for documents under the Freedom of Information Act 1982 – FOI request was made on a letter dated 6 December 2004.”

[22] T documents V2005/220 at 12

[23] T documents V2005/220 at 16

CONSIDERATION

1. For the reasons I have given, the Tribunal’s power of review under the FOI Act depends on there having been a decision made under that legislation. Once it has found the decision, it generally has the same powers as the original decision-maker. It cannot go beyond those powers. As the boundaries of the decision-maker’s power under the FOI Act are drawn by the boundaries of the request, the Tribunal’s power of review are limited by the same boundaries.

1. Applying those principles to this case, the Tribunal may only review decisions in respect of which Mr Ford has made an application. He has made three applications. The first was made on 5 August 2004 and was in respect of the decision deemed to have been made when a delegate of the CSR had not answered his request dated 27 June 2004 within the time permitted by the FOI Act. He has withdrawn that and, as soon as he did that, the matter was at an end and the Tribunal could no longer consider his application.[24] 

   [24] Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (1992) 16 AAR 319; 28 ALD 368

1. The remaining two are still open.  In his application lodged on 13 October 2004, Mr Ford applied for review of a decision deemed to have been made when the CSR did not make a decision on his request dated 29 July 2004 and expanded upon in his letter dated 20 August 2004.  Clearly, the documents requested by Mr Ford in those two documents are documents that the CSR is deemed to have refused.  The Tribunal may consider whether or not the CSR should have refused Mr Ford access to the documents. 

1. Since the CSR made the decision dated 1 December 2004 extending to the request incorporated in Mr Ford’s two letters of 29 July and 20 August 2004, the Tribunal may treat the proceedings that he has already begun in relation to the deemed decision as extending to a review of the decision in relation to the request as well as the deemed decision. That is the effect of s. 56(5) of the FOI Act, which provides:

   “Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a decision:

   (a)to grant, without deferment, access to the document in accordance with the request; or

   (b)to amend or annotate the record of personal information to which the application relates;

   the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part.”

2. In his application lodged on 13 October 2004, Mr Ford made no reference to his request dated 26 July 2004 to the FP&C of the ATO.  By then, he knew that it had been transferred to the CSR and that he had received no decision.  Even adopting a broad interpretation of his application, I do not consider that it is possible to read into an application to review a decision deemed to have been made by the CSR’s failure to notify him of a decision.  He has made specific reference to his request dated 29 July 2004 but none to that of 26 July 2004.  He referred to the CSA’s acknowledgement dated 13 August 2004 of his request.[25]  That acknowledgment referred only to his request dated 29 July 2004 and not to that of 26 July 2004.  Mr Ford’s application did not refer to any substantive matter that suggested that he was referring to his request of 26 July 2004 as well as his request of 29 July 2004.  I note that in his letter of 29 January 2005 to the CSA,[26] Mr Ford has said that:

   “… I originally made a request in late June which was ignored and about a month later I made the same request via ATO, Deacons and CSA in the hope someone might respond.  The later request of August was an extension of the scope of the original request.”

I accept that this was Mr Ford’s intention but I do not consider that his letter can alter the scope of the application he has lodged.

[25] T documents V2004/1184 at 10

[26] Affidavit of Ms Lauren Samantha Fahey sworn on 22 June 2005 and filed in V2004/1184 and V2005/220, Annexure A

1. I note that the CSR’s decision dated 1 December 2004 extended to Mr Ford’s request dated 26 July 2004. Although s. 56(5) enables the Tribunal to treat proceedings as extending to a review of that decision even though it was made after Mr Ford lodged his application, it does not extend the Tribunal’s jurisdiction beyond what it previously had. That is to say, if the Tribunal had jurisdiction to review a decision deemed to have been made refusing a request for access to a document, it has jurisdiction to review a decision subsequently made refusing to grant, or deferring, access to that document. If it did not have jurisdiction to review that decision, it will not have jurisdiction when the CSR made a decision. In order to have jurisdiction in the first place, Mr Ford had to make an application in respect of the deemed decision. This is the effect of s. 55 and 56(1) of the FOI Act and ss. 25(1) and (4) of the AAT Act. Section 25(4) provides that the “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.” The effect of s. 56(1) of the FOI Act is that a decision is deemed to have been made when a decision has not been made on a request within a certain time and an application may be made to the Tribunal in respect of that deemed decision. It follows that, in the absence of an application seeking review of a decision deemed to have been made in relation to a specific request, the Tribunal cannot have jurisdiction to deal with the matter.

1. Mr Ford’s application lodged on 16 March 2005 asked the Tribunal to review the CSR’s deemed refusal of his request dated 6 December 2004.  Again, the Tribunal’s powers are limited to reviewing that decision and so to the documents sought in his request dated 6 December 2004. 

1. Neither of Mr Ford’s applications referred to his request to the CSR dated 27 October 2004. Therefore, any decision that CSR may be deemed to have made because of any failure to answer that request within the time limit prescribed in the FOI Act, is not reviewable by the Tribunal. In any event, he could not have sought review of the CSR’s decision in relation to his request dated 27 October 2004 in the Tribunal once Ms Murphy had made her decision in relation to it on 1 December 2004. He had first to apply for internal review of it under s. 54.  That was so whether she made her decision within the time limit or not.[27]  Mr Ford did seek internal review of Ms Murphy’s decision of 1 December 2004.  He did so on 6 December 2004 but has not applied to the Tribunal for review of the decision made on that internal review.

   [27] If it were outside the time limit, a person may only apply to the Tribunal directly if a decision has not been received from the agency or Minister: s. 56(1)(c).

1. It makes no difference that documents referred to in Mr Ford’s letter of 27 October 2004 have been referred to in various discussions between Mr Ford and the CSR and the CSR’s representatives.  At times, extending the discussion to matters not directly relevant to an application for review may lead to the parties’ resolving all of the issues between them.  Extending the discussions cannot, however, extend the Tribunal’s jurisdiction.  If Mr Ford would like the Tribunal to review the CSR’s decision regarding the documents he asked for in his letter dated 27 October 2004, he must lodge a separate application. 

1. There is only one way in which the Tribunal may review whether the CSR should have given him access to the documents Mr Ford requested in his letter of 27 October 2004.  That will happen if the documents that he has requested in his letters dated 29 July 2004, 20 August 2004 and 6 December 2004 include all or some of those he requested for in his letter dated 27 October 2004.  That may be the case however carefully Mr Ford has drafted his requests. 

1. Mr Ford has submitted that the CSR has attempted to expand the scope of his requests whereas he has attempted to refine their scope in order to assist in resolving the matter.[28]  In interpreting the requests, the CSR will need to interpret Mr Ford’s requests.  Frequently, agencies consult with those requesting information to try to identify the information requested.  None of those discussions broaden the scope of the Tribunal’s jurisdiction.

   [28] Submissions dated 1 July 2005 at [5]

1. For the reasons I have given, I have decided that the Tribunal’s jurisdiction is limited to reviewing:

   (1)the respondent’s deemed refusal of the applicant’s request dated 29 July 2004 and expanded upon in his letter dated 20 August 2004; and

   (2)the respondent’s deemed refusal of the applicant’s request dated 6 December 2004.

I certify that the twenty-four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ...............................................................

Nathaniel Wills  Associate

Date of Telephone Directions Hearing       2 June 2005

Date of Decision  2 September 2005
For the Applicant  self represented

Solicitor for the Respondent  Ms E. Arduca

Australian Government Solicitor