Ganley v Chief Executive, Northern Sydney Central Coast Area Health Service

[2009] NSWADT 326

CITATION:	Ganley v Chief Executive, Northern Sydney Central Coast Area Health Service [2009] NSWADT 326
DIVISION:	General Division
PARTIES:	APPLICANT Helen Ganley RESPONDENT Chief Executive, Northern Sydney Central Coast Area Health Service
FILE NUMBER:	093092
HEARING DATES:	14 October 2009, 2 December 2009
SUBMISSIONS CLOSED:	2 December 2009
EXTEMPORE DECISION DATE:	2 December 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - adequacy of search - substantial and unreasonable diversion of agency's resources
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86 McGuirk v Attorney General of NSW [2008] NSWADTAP 81 Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264
REPRESENTATION:	APPLICANT In person RESPONDENT M Harvey, solicitor
ORDERS:	The respondent’s determination is affirmed.

REASONS FOR DECISION

1 Ms Ganley applied to the Northern Sydney Central Coast Area Health Service (“the respondent”) under the Freedom of Information Act 1989 (“the FOI Act”), seeking access to documents relating to "grievances I am involved in and past FOI applications”. She set out in some detail the particular categories of documents that she was seeking.

2 The matter came before me for hearing on 14 October 2009 and 2 December 2009. On 2 December 2009 I determined that the respondent’s determination should be affirmed and I gave brief reasons for my decision. Ms Ganley has now requested written reasons for the decision and these reasons are provided in response to that request.

3 The respondent determined to release a number of documents but declined to produces others pursuant to section 25(1)(a1) of the FOI Act on the basis that it would be an unreasonable diversion of the respondent's resources to provide the information.

4 Ms Ganley applied for an internal review of that determination. Ms Maryanne Fernandez, the respondent’s Internal Review Officer, upheld the original determination.

5 Ms Ganley applied to the Tribunal for external review of the determination.

Applicable legislation

6 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government.

7 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.

8 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(1)(a1) of the FOI Act provides:

“25 Refusal of access
(1) An agency may refuse access to a document:

…

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions”

9 Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that it’s determination was justified.

The External Review

10 The matter came before me on 14 October 2009. At that time, Ms Ganley clarified and narrowed the scope of her application and the matter was remitted for redetermination of the request on the basis of the revised scope. Ms Ganley’s application was limited to the following documents:

1. Notes taken for the preparation of minutes by Mary Dowling/her secretary at a meeting between Mary Dowling, Ms Ganley and Patricia Norton in relation to Ms Ganley's grievance (possibly 23 October 2007 or 30 October 2007).

2. The Respect and Dignity in the Workplace Policy and copies of all policies referred to in the Policy.

3. The e-mail from Helen Ganley to Mary Dowling dated 19 August 2008.

4. Any documentation/correspondence from Mary Dowling to Matthew Daly regarding their assessment of Ms Ganley's allegations, how they are dealt with and what was done.

5. Any evidence of improvement to the staff grievance process since 2005, as specified by Matthew Daly in his letter to the Ombudsman dated 1 April 2008.

6. Minutes of the specialist committee meeting of the PPU which comment on Ms Ganley.

7. A copy of the booklet referred to in Appendix 70 of the material of Ms Ganley.

8. Any minutes for meetings that refer to the applicant's grievances by any specialist reference group.

11 The redetermination was completed by Ms Sharlene Horner, the respondent’s Freedom of Information Coordinator, on 6 November 2009. Ms Horner determined that the documents that fell within the scope of categories 2, 3 and 5 should be released in full. She determined that the respondent does not hold any documents that fall within the scope of categories 1, 2, 4, 6, 7 or 8.

12 Ms Horner’s determination stated (some references to attachments have been deleted):

Determination

The documents falling within the scope of your request have been fully released as per the Freedom of Information Act 1989 (FOI Act). Reasons for each are stated below.

Fully Released Documents

Under section 25(4)(b) of the FOI Act, an agency may refuse access to a document if it is available from, or available for inspection, at that agency. In particular, documents 2 and 5 as per Attachment A from the NSCCAHS. While not obliged to supply these documents, the NSCCAHS has fully released these documents and included copies for your reference.

1. Notes taken for the preparation of minutes by Mary Dowling/her secretary at a meeting between Mary Dowling, Miss Ganley and Patricia Norton in relation to Miss Ganley's grievance (possibly 23 October 2007 or 30 October 2007)

This was an informal meeting to hear Ms Ganley's concerns. It was not a formal fact finding investigation. The notes were working notes only and following the meeting a file note was made using the information from the hand written working notes. These informal written notes were destroyed once the file note was created.

2. The Respect and Dignify in the Workplace Policy and copies of all policies referred to in the Policy.

This policy replaces the previous HR Policy - Bullying and Harassment and was tabled and approved at the Area Policy Committee meeting on 9 February 2009, it was then tabled and approved at the Area Executive Team meeting on 24 February 2009. The policy was published to the intranet on 27 February 2009. An Area Communications message was e-mailed to all staff on 27 February 2009 advising of all new policies, procedures and guidelines …

3. The e-mail from Ms Ganley to Mary Dowling dated 19 August 2008

This e-mail is included

4. Any documentation /correspondence from Mary Dowling to Matthew Daly regarding their assessment of Ms Ganley's allegations, how they are dealt with and what was done

One document has been identified as is included

5. Any evidence of improvement to the staff grievance process since 2005, as specified by Matthew Daly in his letter to the Ombudsman dated 1 April 2008

At the ADT Hearing on 14 October 2009 an offer of a meeting with Belinda Collier, Director Workforce Strategy and Janice Neve, Acting Director Workforce Operations was made to provide a background to the changes and improvements to staff processes and all current relevant polices and procedures. The offer of this meeting is still available, should Ms Ganley wish to accept this offer she must contact Janice Neve, Acting Director Workforce Operations …

Workforce Service Managers and Staff have undertaken external Workplace Investigations Training; to date 73 staff have undertaken this training. As a result of this external training an internal investigations Training program has been developed.

…

6. Minutes of the specialist committee meeting of the PPU which comment on Ms Ganley

The Professional Practice Unit meetings are only to discuss clinical practice; grievances are not discussed at this meeting. It has been confirmed that Ms Ganley's grievance was not discussed at any of these meetings.

7. A copy of the booklet referred to in Appendix 70 of the material of Ms Ganley

This booklet does not exist, however there are plans on running education sessions around controls. This will be an A-Z of basic controls and is to include matters such as retention rates. This control project is intended to occur in the third quarter of the year i.e. February - April 2010.

8. Any minutes for meetings that refer to the applicant's grievances by any specialist reference group

As per point 6.

13 The matter came before me again on 2 December 2009. At that time Ms Ganley indicated that she was not satisfied with some aspects of the redetermination. In particular she challenged the assertion that the respondent did not hold any documents that fall within the scope of parts of her request.

14 The respondent maintains that it has provided Ms Ganley with all the documents that it holds that are within the scope of the request. It relies on the evidence of Ms Maryanne Fernandez. Ms Fernandez attended the hearing and gave evidence in regard to Ms Horner’s attempts to locate documents with the scope of Ms Ganley’s request. Her evidence is that no documents have been withheld from Ms Ganley. She has been give all the documents that have been located that are within the scope and that there are no other documents that are held by the respondent that fall within the request.

Whether the Tribunal can order the Respondent to undertake a further search

15 Ms Ganley maintained a belief that the respondent holds other documents that fall within the scope of her request, however this is not an issue that the Tribunal can review: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140. By virtue of the Court of Appeal decision, the Tribunal does not have the jurisdiction to direct the respondent to search for additional documents. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the scope of a request for access. Only the Ombudsman can investigate a complaint that an agency has not properly attempted to locate all relevant documents.

16 In Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264 at paragraphs [32] to [38] Judicial Member Pearson summarised the applicable principles from the Court of Appeal decision:

32 As noted by Beazley JA (at [75]), the matter was argued in the Court of Appeal as if the question was whether the Tribunal had jurisdiction to determine the sufficiency of search by an agency in respect of an application for access to documents. The answer provided by the Court of Appeal was as follows:
(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under section 24 of the Freedom of Information Act 1989;
(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of section 24;

(c) the jurisdiction of the Tribunal conferred by section 53 of the Freedom of Information Act 1989 does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to sections 17 and 18 of the Freedom of Information Act 1989.

33 Beazley JA held that a statement by an agency that a document does not exist, or that it does not have a document, cannot be construed as a refusal to give access to a document. Her Honour held (at [61]):
Section 25 complements section 24. Section 24 governs an agency’s responsibility and obligations under the FOI Act after it has received an application. The right to access is a statutorily conferred right and an agency’s obligations relating to granting access and the circumstances in which it may refuse access are also statutorily prescribed. Leaving aside the situation where an agency fails to determine an application within 21 days, giving rise to a deemed refusal: section 24(2); an agency is statutorily required to make a determination in relation to the application. There are, relevantly for present purposes, only two available determinations that may be made: to grant access or to refuse access. A determination to refuse access may be made on one or more of the bases specified in section 25. The section, properly construed, does not permit other circumstances to be taken into account.
34 Beazley JA set out the ambit of the review jurisdiction conferred by section 53 of the FOI Act in the following terms:
[68] … Section 53 provides for the review of a determination. The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in section 53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a "determination within the meaning of section 24(1).
35 Beazley JA concluded (at [76]) that there is nothing in the FOI Act that confers jurisdiction on the Tribunal to conduct a review of, or enquiry into, the sufficiency of an agency's search for documents.
36 Basten JA held (at [108]):

… However, consistently with the scope and objects of the legislation and the expressed intention that the FOI Act shall be applied so as to further those objects and so as to facilitate and encourage the disclosure of information (section 5(3)), section 25 should be seen as an exclusive statement of grounds on which access may be refused.
37 Beazley and Basten JJA, with whom Giles JA agreed, noted that the failure of an agency to consider or adequately consider an application could be the subject of a complaint to the Ombudsman.

17 I agree with that summary. Since the Court of Appeal handed down its decision there have been a number of matters dealing with the issue of the Tribunal’s jurisdiction to deal with the issue of the sufficiency of an agency's search for documents.

18 The Appeal Panel considered the implications of the decision in McGuirk v Attorney General of NSW [2008] NSWADTAP 81. The Appeal Panel said that the Court of Appeal's conclusion was "clear and unequivocal in its conclusion" and at paragraph [14] stated:

"That conclusion was that, regardless of the reason for a determination by a Minister or an agency (under s 28(1)(b)) that it does not hold a document, that determination is not reviewable by the Tribunal."

19 In Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86, the Appeal Panel said that the Tribunal has no jurisdiction to look beyond the agency's assertion that it had given full access to the only document located, even where a senior officer of an agency had previously said that additional documents falling within the FOI request were held.

20 It follows, in my view, that the Tribunal has no jurisdiction to deal with the issue that Ms Ganley has raised regarding the sufficiency of the respondent’s search for documents. On the evidence before me I am satisfied that Ms Ganley has been given access to all the respondent’s documents that fall within the scope of her request. Accordingly, the respondent’s determination should be affirmed.

Order

The respondent’s determination is affirmed.