Heider v Director-General, Department of Community Services

[2000] NSWADT 94

CITATION:	Heider -v- Director-General, Department of Community Services [2000] NSWADT 94
DIVISION:	General Division
PARTIES:	APPLICANT Henry Heider RESPONDENT Director-General, Department of Community Services
FILE NUMBER:	003030
HEARING DATES:	8 May, 13 June 2000
SUBMISSIONS CLOSED:	06/13/2000
DATE OF DECISION:	06/13/2000
BEFORE:	Smith MB - Judicial Member
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52
REPRESENTATION:	In person David Wells, solicitor
ORDERS:	1.The decision under review is set aside and in substitution a decision is made that the applicant be given access to the file of documents which was produced by the respondent to the Family Court of Australia in proceedings SY003024/96 and which is shown in the Court’s Exhibit Maintenance records as "Line # 3 … *J*.D.O.C.S."

1 This is a story of confusion. Mr Heider was involved in Family Court proceedings in which he became aware that a document or documents had been produced to the court by the respondent’s Department. When he sought to inspect it or them, he was told that the Department had claimed privilege and that he needed to make formal application for access. Such an application came before a registrar of the court on 16 November 1999 in circumstances which I shall examine in more detail below. Mr Heider was left with the impression that the document or documents were returned to the Department. He therefore sought to invoke the Freedom of Information Act 1989 (NSW).

2 On 17 November 1999 he applied under s 17 for a document which he described as “Evidence in form of Exhibit Nr.3 (evidence only) lodged to the Family Court in Sydney on 17.3.99 by the Department of Community Services and maintained on a file number SY-3024/96 under the name of Henry Heider”.

3 Following a further appearance in the Family Court on 23 November 1999, Mr Heider seems to have written to the solicitor who had represented the Department, Mr David Wells. His letter is not in evidence, but Mr Wells responded as follows:

“Please be advised that the point of my most recent appearance at the Family Court was to waive the privilege the department had previously claimed in relation to documents it had produce to the Family Court. You are not being prevented from inspecting the material you refer to as “exhibit 3”.

Please also note my confirmation that the material in “exhibit 3” is identical to material to which you have already had access.
Should you care to inspect and compare, you will find that this is the case. You may even care to show this letter to the Exhibits Clerk to support your claim that you should be permitted to inspect the documentation.

As to your request for photocopy access, I consider that as you previously had the opportunity to access identical material, there should be no need for you to have photocopy access now. Additionally as a matter of policy it is generally considered unwise for duplicate copies of departmental files to leave the Departmental or Court premises in the hands of non-Departmental personnel, therefore consent for you to photocopy the department's file is refused”.

4 Unfortunately, this letter seems to have continued rather than overcome suspicions in Mr Heider’s mind that there was a document which had been returned to the Department and was still being kept from him. This suspicion was compounded when he receive a response to his FOI request which seems to have been written without any reference to Mr Wells and in ignorance of what had occurred at the Family Court on 16 and 23 November 1999.

5 A letter to him dated 13 January 2000 from the A/FOI Coordinator said:

“I refer to your Freedom of Information application for documents concerning evidence in form of exhibit 3 lodged with the Family Court in Sydney by the Department on 17/3/99.

The documents you seek are believed to be held on a file that was lodged with the Family Court in response to a subpoena. The Wollongong Community Services Centre has advised me that a copy of the file is not held.

In the circumstance I am unable to process your application further at this stage as the documents you seek are not currently in the possession of the Department.”

6 When Mr Heider sought internal review in a letter dated 15 January 2000. He received a letter dated 28 January 2000 from the same person who had written to him on 13 January, which said:

“As previously explained in my letter dated 13/1/00, the Department was unable to accept the FOI application and undertook to refund your application fee because it does not have possession of the documents you seek.”

7 Mr Heider on 2 February 2000 filed an application in this tribunal for review of these decisions. At this stage, Mr Wells seems to have come back into the matter, since on 9 February 2000 he wrote to Mr Heider, saying:

“ You may recall a conversation you and I had at the Family Court in November last year during which I advised you that the court was in possession of all the department’s documentation in your matter. You will also recall that the Department waived its claim of privilege in respect of all departmental documentation held by the Court in your matter and that this should have resulted in your having access to it.

This was ascertained by means of comparison of a copy of the material that was sent to the Court with the material held at Court.

I have now had your application to the Administrative Decisions Tribunal referred to me. It is apparent there was an error made by officers of the Department as to whether we have a copy of the material that was sent to the Court. However, no officer of the Department including myself is aware of the nature of the material held by the Court and labelled “exhibit 3”. I am able to advise that we do hold a copy of the material the Department sent to Court. However I am unable to advise as to how that material is referred to on the Court's files. I do recall that when you were referring to “exhibit 3” my enquiries of the Court's exhibit clerk revealed that you were not accurately referring to any departmental papers.

That is, as “exhibit 3” did not include departmental documentation, your requesting the material referred to in your application of 17 November would result in your receiving nothing.

In the circumstances, I urge you to make a further application under the Freedom of Information Act. In your application you should clearly identify the documentation you are seeking access to. I have been advised that your application will be expedited. …

Hopefully this will result in your electing to withdraw your application for review thereby avoiding an unnecessary waste of the Tribunal’s time.”

8 This letter must have compounded Mr Heider’s suspicions and adds to the confusion which faced me at the commencement of the hearing, at which the applicant represented himself and Mr Wells represented the respondent.

9 Mr Wells’ principal submission was that the Tribunal had no jurisdiction to review decisions which responded to a FOI application by claiming that the Department did not have possession of the documentation requested. I rejected this submission for the reasons I have set out in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. In my opinion the Tribunal does have power to consider the correctness of the present responses to Mr Heider’s application under the FOI Act. My task, like that of the primary decision-maker, is to identify the document or documents to which Mr Heider’s request should properly be seen to relate, to examine his suspicions as to their existence in the possession or control of the Department, and to considering whether the Department’s responses and searches have been properly directed and adequate.

10 Having ruled that I had jurisdiction, I received further evidence from Mr Heider and Mr Wells, adjourning to allow both of them an opportunity to locate further relevant information.

11 Mr Heider gave evidence that he had been involved in Family Court proceedings involving children in which he was unrepresented. The children's mother was legally represented and the Court had appointed a legal representative for the children. These proceedings came on for hearing in July 1999 at which stage he became aware that documents had been produced to the court by the Department on subpoena. He become aware of this fact when a bundle of documents containing DOCS material was tendered by one of the legal representatives for the other parties and received a marking “exhibit M1”. He seems to have been left in a state of uncertainty as to whether Exhibit M1 contained all the material produced by the Department. When he sought access to the subpoenaed material at the court’s exhibits office, he obtained a printout from their computerised exhibit maintenance records which showed 7 items listed under “Line #”, of which items 4 and 3 seemed to relate to the Department. Item 4 showing 17/3/99 as the received date, and had the description “D.O.C.S.”. Item 3 showed the same received date and had the description “*J*.D.O.C.S”. Mr Heider said that he was told that the *J* reference indicated that the items produced and lodged with the Family Court were documents in respect of which a claim for privilege had been made on the court. He was told that he would not be given access to those written documents without him applying to a registrar. However, he was apparently given access to item 4 which he discovered to be a file of the Department concerning the children the subject of the proceedings, and he inspected all of those documents at that time.

12 Mr Heider said that he applied to the court for access to the item 3 document or documents. It is at this point that some of the confusion in the correspondence becomes apparent, since it is plain that what he has always intended to seek was the document or documents identified as item 3 in the Family Court exhibit’s maintenance register, not exhibit 3 in the proceedings in the court. This would have been revealed in a simple discussion with Mr Heider such as is required by s 19(1) of the FOI Act, which places a duty on decision-makers to “take such steps as are reasonably practicable” to assist an applicant correctly to identify the document or documents which he seeks. Indeed, Mr Wells’ letter of 26 November 1999 suggests that at that time Mr Wells was well aware that what was being sought by Mr Heider was in fact not “Exhibit 3” but was the subpoenaed material which had received the *J* marking in the exhibits office.

13 I reject the suggestion in Mr Wells’ letter of 9 February 2000 – and not repeated to me at the hearing – that an appropriate response to Mr Heider’s FOI application was that the application related to non-Departmental material, i.e., that it related to a non-Departmental document which had received the Family Court marking “Exhibit 3”. I find that, on its proper understanding, the application by Mr Heider sought access to such document or documents as had been lodged by the Department and had been received by the court as item 3 with a *J* marking.

14 Mr Heider appears to have taken out a motion for access to the item 3 documents, which was served on DOCS and which found its way to Mr Wells, who attended Court. There is agreement that the motion was listed twice, being adjourned for a week on the first occasion at the request of Mr Wells. Mr Heider agrees that the matter was listed on 16 November, but he thinks that this was the second occasion. He thinks it was first listed on about 12 November, whereas Mr Wells says it was listed on the 16th and adjourned to the 23rd. I prefer Mr Wells’ evidence in this respect, since it has support from his diary entries, and from a contemporaneous note which he made on the 16th.

15 As to what happened on the 16th and 23rd, I prefer Mr Wells’ account to that of Mr Heider to the extent that they differ. Although neither of them gave a clear and coherent account, Mr Wells’ recollections have the benefit of support from his contemporaneous note, from his letter of 26 November, and from a copy of a “receipt” which Mr Heider obtained from the court to which I shall refer.

16 Mr Well says that on the 16th he appeared before a registrar, indicated that he had no personal knowledge of what the documents were which were subject to the privilege claim, and sought to have the matter adjourned while he had access to the documents so as to decide whether a claim for privilege under s 22 of the Childrens Care and Protection Act 1987 (NSW) would be pressed. The “receipt” obtained from the court file corroborates Mr Wells’ account of his attending at the exhibits office on the 16th to uplift item 3. This document is a printout on 16 November 1999 of the relevant part of the Family Court exhibits maintenance list. On it, someone, probably a court clerk, has written “subpoena 3-DOCS File which was exhibit M1 in appeal collected by: … David Wells”. It is signed by Mr Wells and the printout shows that item 3 was “returned” on 16/11/99.

17 Mr Wells says he uplifted the item 3 documents and found that they were either the original or a copy of a DOCS file which containing identical folios to those contained on the DOCS file which had received the court’s identification as item 4. He said that he discovered this by comparing the two. He says that he also made an additional copy of the file (i.e. item 3) which he retained, and which still remains in his possession. He says that when he attended court on the second occasion, that is 23 November, he passed the documents that he had uplifted on 16th back to the presiding registrar, and indicated that DOCS no longer claimed privilege on the documents that he had uplifted, that is the item 3 documents.

18 Mr Wells explained to me that he had waived any privilege which could be claimed by the department due to the fact that items 3 and 4 held by the court contained the same documents. Because no privilege had been claimed in relation to the file (or copy of the file) which was item 4, so that these documents had been available for inspection by the parties to the Family Court proceedings including Mr Heider, there was no purpose in any longer claiming privilege over the copy (or original) file which was item 3.

19 At the resumed hearing, Mr Wells said that on 8 May 2000 he had spoken to a clerk at the Family Court exhibits office who told him that the court’s computer record was likely to be accurate in terms of dates of lodgment. This person also confirmed that on 8 May 2000 the court still retained custody of one original DOCS file and a copy of the DOCS file, those two bundles being identified as items 4 and 3 on the exhibits maintenance record. It therefore seemed that, although the court’s computer presently showed item 3 being returned to the department on 16/11/99, this was inaccurate because it did not indicate its re-lodgment by Mr Wells on 23 November.

20 How this duplication and failure properly to isolate privileged documents had originally occurred is left obscure on the evidence before me. Mr Wells said that, when he attempted to investigate this question in November 1999, he located two subpoenas that had been served on the Wollongong office of the Department where the file originated. One subpoena had been served on the Wollongong office by Messrs Verikers, solicitors, seeking a production of documents on 4 March 1999. A second subpoena issued by the Legal Aid Commission of New South Wales required the production of documents on 5 July 1999. Both subpoenas sought production of the Department file in relation to the three named children. He told me that, as far as he could discover, there were no records in the Wollongong office explaining clearly what had happened in relation to these subpoenas. He suggested that what probably had happened was that in answer to the first subpoena the Wollongong office had copied the file and lodged either a copy or the original with the Court, together with the usual form letter seeking privilege under the Children Care and Protection Act. These documents had become item 3. Item 4 had then originated when the second subpoena was answered by production by the local office of the copy of the file or the original, whichever it was, which had remained in that office. On this occasion there had been, he suggested, an unintentional waiver of privilege on the file.

21 I have some doubt about this explanation, since it is not consistent with the court printouts which show both items 4 and 3 being lodged on the same day. Mr Wells says that his more recent attempts to find out what had happened have revealed not only the absence of any documentation in the Wollongong office but also a staff turnover which left no-one who could have any recollection of what had happened. There seems little prospect that further investigation will clarify what happened, and I consider that a decision on Mr Heider’s FOI application can be made without ordering further investigations.

22 On the evidence before me, and notwithstanding the understandable suspicions that have been raised in Mr Heider's mind as a result of the confusing correspondence, I am quite satisfied that the documents which had been produced to the Family Court and given the identification of “item 3” are the same documents as are currently held by the court with that identification, and are the same documents which were uplifted by Mr Wells on 16 November 1999 and of which he currently retains a copy.

23 In view of this finding it is not necessary for me to make findings on whether these documents are, or are not, in fact identical to those which Mr Heider has already inspected at the Family Court under the identification of “item 4”.

24 The respondent now raises no claim for exemption in relation to the “item 3” documents identified as above, and it now concedes that it is able to provide access to them. In this respect, I note that Mr Wells has considered whether any persons referred to in the documents should be consulted and that, on his evidence, all relevant persons have been consulted and do not object to Mr Heider having access.

25 On my above findings, I consider that the correct and preferable response to Mr Heider’s application under the FOI Act is to identify the document sought in his request as being not “exhibit 3”, but item 3 in the Family Court exhibits maintenance records, and to make a decision that access to those documents be given to Mr Heider. As to the form of access, this is a matter which may be outside my powers since decisions on it are made under s 27 and not s 24 of the FOI Act. In any event, Mr Heider has a continuing opportunity to inspect the file held at the court, and, as I understood it, Mr Wells has also offered to give him access by way of a copy. Whether Mr Heider wants access in either of those forms, I do not know and I shall not make any recommendation in relation to a form of access.

26 This outcome unfortunately may not be one for which Mr Heider will be entirely happy. He remains, as I understand his submissions to me, suspicious that there is a document which once was produced to the Family Court and which has been taken away and not returned, and which is not in the file currently held in duplicate at the court exhibits office as items 3 and 4. All I can say is that the evidence before me gives no substance to this suspicion.

27 For the above reasons I made the order set out above.