Johnston v Department of Education and Communities
[2013] NSWADT 132
•11 June 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Johnston v Department of Education and Communities [2013] NSWADT 132 Hearing dates: 22 November 2012 Decision date: 11 June 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: Application dismissed.
Catchwords: Government information - public access - whether application for review of decision that original and amended access application were invalid applications were lodged within time - whether time should be extended to lodge applications out of time - whether decision to refuse to refund application fees is a reviewable decision Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989 (repealed)
Government Information (Public Access) Act 2009
Government Information (Public Access) Regulation 2009Category: Principal judgment Parties: Phillip Johnston (Applicant)
Department of Education & Communities (Respondent)Representation: P Johnston (Applicant in person)
E Stathis, Department of Education & Communities (Respondent)
File Number(s): 123122
REasons for decision
Introduction
On 16 May 2012, the applicant, Mr Phillip Johnston, made an application seeking review of a decision of the respondent, the NSW Department of Education and Communities. In that application, the applicant identified the original decision as being the decision made on 6 March 2012. The decision, made pursuant to the Government Information (Public Access) Act 2009 (GIPA Act), related to the applicant's request for access to 4 specified items of government information held by the respondent.
The applicant had originally made his request for access on 24 January 2012. He sought access to 4 specified items of information. On 30 January 2012, the respondent gave notice to the applicant that it had determined that his application for access was invalid because the information he had provided did not enable the respondent to identify the information sought.
On 12 February 2012, at the request of the respondent, the applicant reworded, in part, the terms of the 4 specified items of information. On 13 February 2012, the respondent issued a further notice to the effect that it had determined that the applicant's amended access application was also invalid.
On 27 February 2012, the applicant wrote to the respondent providing further information about the information for which he sought access. He also said he disagreed with the respondent's assessment that his initial and amended application were invalid.
On 28 February 2012, the respondent gave notice, to the applicant, of its determination that the applicant had made a valid amended application for personal information. That determination was made on the basis of the additional information the applicant had provided. In its notice, the respondent also set out the terms of the amended valid application, which continued to specify 4 items of information.
In its original determination of the applicant's amended valid personal access application, the respondent determined that information as specified in item 1 was not held by the respondent. In regard to the remaining items, the respondent determined that the applicant had previously been provided with access to that information.
On 15 March 2012, the applicant sought internal review of the decision of the respondent in regard to the information specified in item 1. He also sought a refund of his $30 application fee.
On 3 April 2012, the respondent determined the applicant's internal review application in regard to its determination that it did not hold any information falling within item 1 of his access request. The respondent's determination on internal review was to affirm the original decision.
On 12 April 2012, the respondent determined the applicant's request for a refund of his application fee. The respondent determined to deny the applicant's request for a refund.
In his application for external review, the applicant said that he was seeking review because:
1. I was aggrieved with some of the decision/s provided in response to my original application, and decisions/s for my subsequent application for internal review that was done in two parts.
2. I require an independent review of the decision/s provided in response to my application, in particular the decision/s for my subsequent application for internal review done in two parts.
During the course of the planning meetings, the applicant identified the issues for which he was seeking review were as follows:
- the decision of the respondent that his original application was an invalid application, and
- the decision of the respondent to refuse to refund his application fee.
The applicant did not press review of the decision of the respondent that was made on 6 March 2012 (i.e. the decision that 'no record was held ' in regard to item 1 of his further amended access application). In this regard I note the respondent provided the applicant with considerable detail of searches that had been made. It is my understanding that the applicant presses his application in regard to the respondent's decision that his original and amended application were invalid as he believes the terms of these applications were sufficiently clear for the respondent to identify the information he was seeking.
The respondent contended that the applicant's application for a review of the decision of the respondent that his original application was invalid was out of time and time should not be extended. In regard to the applicant's application for a review of the decision to refuse to refund the applicant his application fee, the respondent contended the tribunal had no jurisdiction to hear and determine that application.
At the request of the applicant these matters were heard on 22 November 2012. At the conclusion of the hearing I reserved my decision. I have now considered the material before the tribunal and for the reasons set out below, I find, in regard to each of the matters in issue, the contentions of the respondent are correct.
Government Information (Public Access) Act
As I have indicated, the relevant law in this application is the GIPA Act, the objects of which are set out in section 3 as follows:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency.' The word 'record' is defined in clause 10 of Schedule 4 of the GIPA Act as follows:
10 Meaning of "record"
(1) In this Act:
record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.
(2) A reference in this Act to a record includes a reference to a copy of the record.
(3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
Part 2 of the GIPA Act contains provisions in regard to the ways in which government information can be accessed and the general principles that are to be applied to access applications. Section 9 deals with 'access applications'. Subsection 9(1) provides that a person who makes an access application for government information has a legally enforceable right to be provided with access in accordance with Part 4 of the Act, unless there is 'an overriding public interest against the disclosure of the information.'
Part 4 of the GIPA Act makes provision for:
(a) the making of an access application (Division 1 sections 41 to 50),
(b) the process for dealing with an application for access (Division 2 sections 51 to 56)
(c) how access applications are to be decided (Division 4 sections 57 to 63)
(d) how charges and advance deposits are to be dealt with when dealing with an access application (Division 5 sections 64 to 71), and
(e) how access is to be provided (Division 6 sections 72 to 79).
For the purpose of this application the relevant provisions are, sections 41, 51, 52, 64 and 67.
Requirements for making an access application -Section 41 sets out what is required in order to make an access application. It relevantly provides:
41 How to make an access application
(1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements) for access applications:
(a) it must be in writing sent to or lodged at an office of the agency concerned,
(b) it must clearly indicate that it is an access application made under this Act,
(c) it must be accompanied by a fee of $30,
(d) it must state a postal address as the address for correspondence in connection with the application,
(e) it must include such information as is reasonably necessary to enable the government information applied for to be identified.
Note. See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application. See also section 52 (3) concerning assistance to be afforded by an agency to an access applicant.
(2) ...
Notification if access application a valid application - Section 51 makes provision for the agency to make a decision, within 5 days of receiving an application for access, whether it is a valid or not a valid application and section 52 sets out the obligations of an agency where it is found that the application is not a valid application. These sections relevantly provide as follows:
51 Initial decision as to validity of application
(1) When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either:
(a) acknowledging receipt of the application as a valid access application, or
(b) notifying the applicant that the application is not a valid access application.
Note. An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications.
(2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received.
Note.
The decision is reviewable under Part 5.
(3) An acknowledgement of receipt of a valid access application must include the following:
(a) ...
(4) ...
(5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.
52 Agency assistance with invalid applications
(1) The notification of an agency's decision that an application is not a valid access application must:
(a) include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and
(b) if a reason is non-payment of the required application fee, invite the applicant to pay the fee, and
(c) if a reason is failure to provide required information, invite the applicant to provide the information, and
(d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application.
(2) The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate), and is then deemed to have been made when the fee or information was received by the agency.
(3) An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application.
(4) (Repealed)
(5) An applicant is entitled to a refund of any application fee that accompanied an invalid access application (unless the application subsequently becomes valid).
Processing charge - Section 64 of the GIPA Act makes provision for a 'processing charge' for dealing with an access application. It provides as follows:
64 Processing charge for dealing with access application
(1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.
Note. The decision to impose a processing charge is reviewable under Part 5.
(2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in:
(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or
(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).
(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.
(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.
Section 67 makes provision for the waiver, in part, of a processing charge in respect of an application for access to personal information about the access applicant. It provides as follows:
67 Waiver of processing charge for personal information application
If an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.
Note. This does not limit an agency's power to reduce, waive or refund processing charges under section 127.
Reviewable decisions - decisions reviewable by the Tribunal - Section 100 of the GIPA Act provides that a person who is aggrieved by a 'reviewable decision' of an agency may apply to the tribunal for a review of that decision. A 'reviewable decision' is defined in section 80 of the GIPA Act. It relevantly provides as follows:
80 Which decisions are reviewable decisions
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:
(a) a decision that an application is not a valid access application,
(b) ...,
...
(e) a decision that government information is not held by the agency,
(f) ...
...
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge.
Subsection 105(1) of the GIPA Act provides that in any review of a reviewable decision before the tribunal, the burden of establishing that the decision is justified lies on the agency, except as provided by that section. There is no dispute that the exceptions do not apply in this application.
Time within which an application for review is to be lodged - Sub-section 101(1) of the GIPA Act provides that an application for review by the tribunal is to be made within 8 weeks after notice of the decision to which the review relates was given to the access applicant. Sub-section 101(4) gives the tribunal power to extend time for making the application if the tribunal is of the opinion that the person has provided a reasonable excuse for the delay in making the application. Sub-section 101(5) provides that an application for an extension of time is to be made in writing, unless the tribunal dispenses with this requirement.
Is the applicant out of time to seek review of the decision that his original application was invalid?
There is no dispute that the decision of the respondent that the applicant's application was not a valid application is a reviewable decision (see subs 80(a)). As I have indicated, that decision was made on 30 January 2012. In being given notice of that decision, the applicant was also given information about his review rights, including external review by the tribunal.
However, the issue as to whether the applicant has lodged, within the prescribed time, his application for review of that decision (i.e. the invalid application decision) is an issue going to the jurisdiction of the tribunal to hear and determine that review application. Such issues are determined on the basis of the proper construction of the relevant prescribed time limit and whether, as a matter of fact, the relevant prescribed time limit has been complied with.
The applicant, in his letter to the respondent, dated 12 February 2012, said that he received notification of that decision 'on approx' 2 February. However, the applicant's application for review of that decision was not lodged with the tribunal until 16 May 2012. This was more than 14 weeks after the respondent's decision as to invalidity was made and received by the applicant. Yet the prescribed period in subs 101(1) of the GIPA Act is 8 weeks.
Accordingly, on the basis of the number of weeks between the date on which the applicant received notification of the respondent's decision on invalidity and the date on which he lodged this application for review, the applicant's application was not lodged within the prescribed time. On the material before me, I would make a similar finding in regard to the subsequent decision of the respondent that the applicant's amend application for access was invalid.
The applicant, however, relies on his statement, dated 11 November 2012 and that of his work colleague, Dale Kenneth Jackson, dated the same day, in which they each assert that the officer of the respondent dealing with the applicant's access application had informed the applicant, in a telephone conversation, that he should proceed with the revisions of his access application and 'if the application did not yield the desired result' the applicant could have his original form reviewed.
In my view, while I accept that this might be a reflection of the applicant's recollection and understanding of what was said, I do not accept this as a reliable account of what was in fact said. Indeed the contemporaneous written communications between the applicant and respondent are inconsistent with this. In any event, I agree with the respondent that for the purpose of the reckoning time within which a review application is to be lodged under the GIPA Act, any undertaking by an officer of an agency cannot vary the 8 week time limit prescribed under subs 101(1) of the GIPA Act. Such undertakings may of course be relevant to the exercise of the discretion to extend time under subs 101(4) of that Act.
Should time be extended?
As I have explained subs 101(4) of the GIPA Act vests a discretion in the tribunal to extend time. That discretion can be exercised where the tribunal forms the opinion that the person has provided a reasonable excuse for the delay in making the review application.
In my view the applicant has given no reasonable excuse for the delay, other than his account of what was said by the officer of the respondent dealing with his access application. As I have mentioned, I do not accept this account as being reflective of what was in fact said. As I have indicated, the contemporaneous communications do not support the subsequent statements of the applicant and his work colleague. What they reflect is a decision by the applicant to pursue his application in a further amended form, rather than pursue a review of the decision of the respondent that his original access application and amended access application were both invalid.
The applicant is a person who has exercised his rights to access government information under the GIPA Act and its predecessor the Freedom of Information Act 1989 (repealed) a number of times. This is his right and I am in no way critical of him for doing so. However, through these applications he is very familiar with the prescribed time limits within which to seek review of a reviewable decision.
Accordingly, I find that there is no basis on which to exercise the discretion to extend time within which the applicant is to make an application for review of the decision of the respondent that his original, or amend application for access was invalid.
Refund of application fee
The applicant contends that he is entitled to a refund of his application fee, by reason of s 67 of the GIPA Act, as the information for which he sought access was personal information. Furthermore, he asserts that the tribunal has jurisdiction to review the decision of the respondent not to refund his application fee under para 80 (j) and (k) of the GIPA Act. Essential to this argument is that a 'processing charge' under the GIPA Act also includes an 'application fee'. As I have explained above, para 80 (j) and (k) of the GIPA Act provides that decisions of the respondent to 'impose a processing charge', or to 'refuse a reduction in a processing charge' are reviewable decisions.
In my view, the applicant's construction of the relevant provisions is misconceived, in that on a proper construction of the relevant provisions of the GIPA Act a decision to refuse to refund an application fee is not a reviewable decision.
As I have explained para 41(1)(c) of the GIPA Act provides that an access application is to be accompanied by a 'fee' of $30 (my emphasis). Where an access application is made under that section of the GIPA Act and the application is not accompanied by the required fee, the application is an invalid application, unless the agency has agreed to waive, reduce or refund the fee: see ss 51A and 127 of the GIPA Act.
S 127 of the GIPA Act provides:
An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations. (emphasis added)
As can be seen from the terms of these provisions, the requirement to pay the $30 fee when making an access application under the GIPA Act, is a statutory requirement, unless the agency exercises its discretion under s 127 and decides to waive, reduce or refund that 'fee'. That is, the agency is given no power to impose a 'fee' on the making of an application for access. However, it does have power to waive, reduce or refund that 'fee'.
As I have explained above, subs 64(1) of the GIPA Act makes provision for an agency to 'impose' a 'charge' for dealing with an access application. This is described as a 'processing charge', which the agency is empowered to impose at a rate of $30 per hour for every hour of 'processing time for the application'. What constitutes 'processing time' is defined in subs 64(2) and ss 65 and 66 of the GIPA Act set out the circumstances in which there is to be a 50% reduction in 'processing charges'. I note cl 9 of the Government Information (Public Access) Regulation 2009 (GIPA Reg) provide additional circumstances where a 'processing charge' is to be reduced by 50%.
Accordingly, unlike subs 41(1), where there is a statutory imposition of a 'fee' on the making of an access application, subs 64(1) gives an agency a discretion to 'impose' a 'charge' for processing (i.e. dealing with) that application. Where an agency does make a decision to 'impose' such a 'charge' that decision is clearly a reviewable decision under para 80(j) of the GIPA Act. By reason of s 127, if an agency does impose such a charge, the agency also has power to reduce the amount charged and a refusal to do so is a reviewable decision under para 80(k) of the GIPA Act.
If an agency decides to 'impose' a 'charge' for processing an access application, subs 64(1), (2) and (3), 65, 66 and 67 of the GIPA Act and cl 9 of the GIPA Reg prescribe how that charge is to be calculated.
As I have explained, subs 64(3) provides that the 'application fee of $30' paid by an access applicant is to count 'as a payment towards any processing charge payable by the applicant.'
In my view, on its proper construction, this subsection only comes into effect where an agency makes a determination to impose, on an access applicant, a 'charge' for dealing with that person's access application. In such circumstances, the agency is required to reduce the amount that can be charged for the time it has taken to deal with the person's access application by the amount that is equal to the amount the person paid when making his/her application.
Furthermore, in my view, on its proper construction, the effect of s 67 also operates as a limitation on the amount an agency can charge for dealing with an application by a person for access to information that is personal information about that person. Again, it only applies where an agency makes a decision to 'impose' a charge for dealing with the access application.
In this case, at no time has the respondent made a decision to impose a 'charge' on the applicant for dealing with his application.
Accordingly, the question remains as to whether a decision by the respondent to refuse to refund his application fee is a reviewable decision. In my view it is not a reviewable decision as it is not a decision falling within s 80 of the GIPA Act. On the proper construction of the abovementioned provisions Parliament has clearly distinguished between what is meant by a 'fee' and a 'charge'. The fact that the application 'fee' paid is to be counted towards that which can be 'charged' for dealing with an application for access does not mean that the 'fee' is also a 'charge'. Had Parliament intended this to be the case it would have used the same terminology. This it did not do. Hence, in my view, on a proper construction of para 80(j) and (k) of the GIPA Act, a decision of the respondent in regard to an application fee is not a decision in regard to a processing charge. And on this basis, I agree with the respondent that its decision to refuse to refund the applicant his application fee is not a reviewable decision by the tribunal.
Conclusions and Orders
For the reasons set out above, I find that the tribunal has no jurisdiction to hear and determine the applicant's application.
Accordingly, the appropriate decision is to dismiss the applicant's application for review.
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Decision last updated: 11 June 2013
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