Hanna and Commonwealth Ombudsman
[2008] AATA 562
•1 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 562
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2008/0013
GENERAL ADMINISTRATIVE DIVISION ) Re WAGDY HANNA Applicant
And
COMMONWEALTH OMBUDSMAN
Respondent
DECISION
Tribunal Mr S. Webb, Member Date1 July 2008
PlaceCanberra
Decision The Tribunal has no jurisdiction to determine the application. .............signed.................................
Mr S. Webb, Member
CATCHWORDS
FREEDOM OF INFORMATION - request for access to information - correspondence concerning scope of the request - notice of intention to refuse application specifying opportunity to consult - delay - decision refusing access - no internal review - no jurisdiction
Freedom of Information Act 1982 ss 15, 24, 54, 55, 56
REASONS FOR DECISION
1 July 2008 Mr S. Webb, Member 1. On 25 February 2005 Wadgy Hanna applied to the Commonwealth Ombudsman for access to certain information. A decision refusing his request for access to the information was issued on 11 December 2007. Unhappy with that decision, Mr Hanna applied to the Tribunal for review.
2. An interlocutory hearing was set down to determine whether the Tribunal has jurisdiction to proceed with the review. I heard the parties on 24 June 2008 for that purpose.
3. The relevant facts arise from the materials that are presently before the Tribunal. On 25 February 2005 Mr Hanna requested access to certain information:
“FOI Request – C/99/20828
Under Section 15 of the Freedom of information Act 1982 I request that the Office of the Commonwealth Ombudsman provide me with copies of documents which relate to this case, more particularly:
1. All requests made by the Ombudsman to the National Library of Australia.
2. All replies by the National Library of Australia to the Ombudsman’s requests.
3. All correspondence between the Office of the Ombudsman and the Office of the responsible Minister.
4. Date and form of the Ombudsman invoking official powers to investigate this matter.
5. Details of all “COMBi” documents generated for the management of this complaint.”
The request and the related application fee were received by the Ombudsman’s Office on 1 March 2005.
4. On 7 March 2005 Jason Strachan, FOI Officer, wrote to Mr Hanna concerning his application and stated:
“the scope of your request as currently framed appears very wide. This is likely to result in the imposition of substantial charges. However, narrowing the scope of your request could contain such costs. You may wish to exclude correspondence between this office and yourself, documents that are already publicly available, documents already released to you under previous FOI requests, or documents originating with another agency and which could be requested from that agency. If we receive your approval for these changes to your request, the statutory time limit for its processing would be deemed to restart from the time we receive your agreement.”
On 6 April 2005 Mr Hanna sent a response by facsimile and indicated that he “Agreed to [exclude correspondence between this office and yourself] only. Not the rest”.
5. On 8 April 2005 Mr Strachan sent an email to Mr Hanna outlining “how I believe we should proceed regarding your FOI request” and attached a letter proposing the withdrawal of Mr Hanna’s application and the making of a fresh application. On 11 April 2005 Mr Hanna rejected this proposal and confirmed the terms of his original requests by email transmission to Mr Strachan and Professor McMillan, Commonwealth Ombudsman: “The requests stand without alteration”.
6. On 19 April 2005 Professor McMillan wrote to Mr Hanna and stated that “the decision-maker (Mr Bluck) considers that dealing with the request would require a substantial and unreasonable diversion of this office’s resources. This is a basis for refusing to grant access under s 24(1) of the FOI Act”. Professor McMillan specified the categories of documents covered by Mr Hanna’s request. He stated that “Given the bulk of the material to be analysed, this task may take hundreds of hours” and
“there is simply not the capacity to decide access to documents related to some very old matters.
Under s 24(6) of the FOI Act, Mr Bluck may not refuse the request unless you have been given notice in writing warning of this intention and give [sic] you an opportunity to consult. He has suggested that these consultations (with him and Mr Strachan) occur within four weeks of the date of this letter. You may be able to identify a specific file or type of document that would satisfy your concerns and that may lead to the request becoming manageable.
If the request proceeds, the FOI Act provides for processing charges to be levied. Those charges may be waived in whole or in part in some cases… As has been explained to you in the letter dated 7 March 2005, this could be substantial in the absence of a decision to waive fees and charges.
Conclusion
My office will, of course, continue to deal with you in relation to any proper request under the AD(JR) Act or the FOI Act. It will always be available to deal with new complaints that you may have as a result of any recent, current or future dealings with Commonwealth and ACT agencies. However, I regard the investigation of other matters as having been finalised. I am sorry that your dealings with the Ombudsman’s office have not led to a satisfactory result for you.”
On 2 May 2005 Mr Strachan provided a copy of that letter to Mr Hanna by email.
7. On 11 October 2007 Mr Hanna wrote to Professor McMillan and stated “In your letter dated 9.10.2007 you claim that you have explained your decision. I have no records of your office ever making a decision and still await your supply of the documents requested under FOI”. The letter to which Mr Hanna referred is not in evidence before the Tribunal.
8. On 10 December 2007 Paul Bluck, Commonwealth Ombudsman’s Director of Legal/Policy, wrote to Mr Hanna and informed him that “I have decided to refuse your request, for the reasons set out in Professor McMillan’s letter [dated 19 April 2005]. I regret that I did not do so before now – while initially I was awaiting your response, the matter ceased to be active within a couple of months. My decision is internally reviewable…”
9. On 11 December 2007 Professor McMillan wrote to Mr Hanna in the following (relevant) terms:
“I believe that neither of the FOI requests you made proceeded to a decision. You would recall my letter of 19 April 2005 about the proposed refusal of the requests of the ground of substantial and unreasonable diversion of resources, notwithstanding that you had excluded some parts and that others would be transferred to other agencies. That letter invited you to contact Mr Bluck or Mr Strachan, suggesting four weeks would be sufficient. It intimated that there may be processing charges, even if the scope of the request was reduced to a manageable level.
We do not appear to have received a response from you to that letter of 19 April 2005. As a result the request did not proceed – I think it would have been better had we written to you long before now setting out a formal decision to refuse your request on the basis stated, triggering review rights. And, while not legally required, it may have been better if we had offered to refund the application fees you had paid if you were not minded to proceed. I enclose the decision, which also addresses the question of application fees.”
10. On 2 January 2008 the Tribunal received an application from Mr Hanna for review of this decision.
11. Mr Hanna asserts that the Tribunal has jurisdiction to review the decision to refuse his request on 25 February 2005. He says that Professor McMillan’s letter, dated 19 April 2005, is an effective decision to refuse his request and that Mr Bluck’s decision dated 10 December 2007 (attached to Professor McMillan’s letter dated 11 December 2007) is an effective internal review decision for the purposes of subs 54(1) of the FOI Act. Thus, in Mr Hanna’s submission there is jurisdiction in the Tribunal to review Mr Bluck’s decision.
12. As will appear, I do not agree.
is the decision dated 10 december 2007 reviewable by the tribunal?
13. I am reasonably satisfied that it is not.
14. The Tribunal does not exercise power at large and jurisdiction is conferred by enactment, for present purposes the FOI Act. Under s 55 of the FOI Act the Tribunal has jurisdiction to review certain decisions. A person is not entitled to apply to the Tribunal for review of a decision if the person is entitled to apply for internal review of that decision pursuant to s 54 of the FOI Act (subs 55(2)) unless the person has applied under s 54 but has not been informed of the outcome of that review within 30 days (subs 55(3)). The Tribunal’s powers are conditioned by s 58 of the FOI Act.
15. Thus it can be seen that for the Tribunal’s jurisdiction to be enlivened, a decision of the kind referred to in subs 55(1) must be made, or be deemed to have been made pursuant to s 56, and if that decision is within the terms of s 54, an internal review application must have been made and either a decision issued or more than 30 days having passed from the date of the internal review application.
16. I am reasonably satisfied that Professor McMillan’s letter dated 19 April 2005 is not consistent with either a decision or an internal review decision in relation to Mr Hanna’s request on 25 February 2005. Mr Strachan’s letter dated 7 March 2005 sets out options for Mr Hanna to narrow the scope of his request. Mr Hanna agreed to exclude one class of documents (correspondence between himself and the Ombudsman’s office) but he did not accept other options suggested by Mr Strachan. It appears from Mr Strachan’s email to Mr Hanna on 8 April 2005 that he and Mr Hanna may have discussed the matter without resolution. On 11 April 2005 Mr Hanna informed Mr Strachan that “My request dated 25.2.2005 stands”. He also informed Professor McMillan that his “requests stand without alterations”. Professor McMillan’s letter on 19 April 2005 responded to these matters but made no formal decision to refuse access to the information.
17. Under subs 24(1) of the FOI Act a request for access to information may be refused if the work involved in processing the request ‘would substantially and unreasonably divert the resources of the agency from its other operations’. However, a request must not be refused on these grounds unless the applicant has been given a written notice stating an intention to refuse access and identifying an officer of the agency with whom the applicant may consult.
18. Thus it can be seen that there is no power to refuse to grant access to information on the basis that processing the request would substantially and unreasonably divert the resources of the agency unless formal notice has been given to the applicant. Mr Strachan’s letter dated 7 March 2005 does not give notice of an intention to refuse access and it is not ‘notice’ for the purposes of subs 24(6) of the FOI Act. It follows that Professor McMillan was precluded from refusing Mr Hanna’s request on the aforementioned grounds on 19 April 2005. It is perhaps for this reason that Professor McMillan’s letter to Mr Hanna on that day did not purport to refuse his request, but rather gave notice of intention to refuse the request and identified officers (Mr Bluck and Mr Strachan) with whom Mr Hanna could consult.
19. For these reasons I am satisfied that the letter dated 19 April 2005 was not a decision to refuse Mr Hanna’s request but is sufficient to satisfy the notice requirements of subs 24(6). I so find.
20. It follows that the decision on 10 December 2007 to refuse Mr Hanna’s request was not an internal review decision for the purposes of s 54 of the FOI Act. In consequence, it is not open for Mr Hanna to apply for review of that decision by the Tribunal and the Tribunal has no jurisdiction to hear such an application.
are there other relevant grounds?
21. I am reasonably satisfied that there are not.
22. It is plainly unsatisfactory that a decision was not made in relation to Mr Hanna’s request until 10 December 2007.
23. Section 15 sets out the period in which a decision is to be made (30 days that may be extended to 60 days in certain circumstances). Subs 24(7) states that the period commencing on the day a person is given notice pursuant to subs 24(6) and ending ‘on the day the applicant confirms or alters the request following the consultation’, is to be disregarded in the calculation of the period referred to in s 15. Thus the period of 30 or 60 days may, in effect, be increased by suspension under subs 24(7). That is what occurred in Mr Hanna’s case.
24. The effect of the letter of 19 April 2005, pursuant to subs 24(7) of the FOI Act, was to suspend the timeframe imposed by s 15 of that Act. It appears that Mr Hanna did not respond to Professor McMillan’s letter and, on the materials I have seen, took no further action in relation to his request until 11 October 2007. The deeming provisions of s 56, whereby a decision is deemed to have been made for the purposes of enabling an application to be made to the Tribunal, only apply if the period imposed by s 15 has expired. As Mr Hanna took no action to either confirm or amend his request after 19 April 2005, the s 15 period remained in suspension until he did so on 11 October 2007. Subsequently, a decision refusing Mr Hanna’s request was made on 10 December 2007.
25. As it appears to me, the deeming provisions of s 56 do not assist Mr Hanna’s case. If the original 30 days period specified by subs 15(5)(b) was not extended pursuant to subs 15(6) a decision would be deemed to have been made 30 days after 25 February 2005. I am reasonably satisfied that Mr Strachan’s letter dated 7 March 2005 is not compliant with the requirements of subs 24(6) and did not have the effect of suspending the s 15 period. Thus, it is likely that a decision could be deemed to have been made on 27 March 2005. If that is correct, Mr Hanna is substantially out of time to make an application to the Tribunal for review of that decision – a period of 60 days applies to such an application (subs 55(4)). Alternatively, if the period was extended to 60 days under subs 15(6), and I have seen no evidence that it was, the period would effectively end on 18 October 2007 – 53 days elapsed from the date of application to the date on which the s 15 period was suspended on 19 April 2005, and the remaining 7 days would be calculated from 11 October 2007, when Mr Hanna reiterated the terms of his original request. Even if that is correct, it would not assist Mr Hanna. His application to the Tribunal was made on 2 January 2008, more than 60 days after 18 October 2007.
26. Thus, I am not persuaded by Mr Hanna’s submissions or the materials that have been placed before me that there are any grounds enlivening the Tribunal’s jurisdiction under the FOI Act in Mr Hanna’s case.
27. I was informed by Ms Agostino during the hearing that the Ombudsman would not oppose an application by Mr Hanna for internal review of the 10 December 2007 decision, and that related fees would be waived. It is for Mr Hanna to decide whether to pursue that course.
28. As it stands the Tribunal has no jurisdiction to determine Mr Hanna’s application.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .......signed.......................................................
Jane Gribble
AssociateDate of Hearing 24 June 2008
Date of Decision 1 July 2008
Representative for the Applicant Wagdy Hanna
Representative for the Respondent Julia Agostino
Commonwealth Ombudsman
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