Johnston v NSW Department of Education and Training
[2008] NSWADT 262
•16 September 2008
CITATION: Johnston v NSW Department of Education and Training [2008] NSWADT 262 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Phillip Johnston
NSW Department of Education and TrainingFILE NUMBER: 063255 HEARING DATES: 24 July 2008 SUBMISSIONS CLOSED: 8 August 2008
DATE OF DECISION:
16 September 2008BEFORE: Pearson L - Judicial Member CATCHWORDS: Jurisdiction MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140
Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195REPRESENTATION: APPLICANT
RESPONDENT
In person
S Bilbe-Taylor, solicitorORDERS: Application for review is dismissed.
REASONS FOR DECISION
Background
1 On 13 June 2005 the applicant applied to the respondent under the Freedom ofInformation Act 1989 (the FOI Act) for access to documents as follows:
2 On 5 July 2005 Mr John Harrison, Freedom of Information officer, advised the applicant that he had been provided with documents from the Sydney Institute which were relevant to the request, and that he had determined to provide access to the documents in full with the exception of two pages. Those two pages contained personal information relating to Mr Lawrence Fong, and the information exempt under clause 6 of Schedule 1 to the FOI Act was deleted.
1. A complete copy of the psychological risk assessment report submitted to Management at Ultimo TAFE by Lawrence Fong of Synergise Associates in response to Ultimo TAFE Management request to conduct a workplace assessment of the Information Technology Teaching Section in Building G, at Sydney Institute of TAFE, NSW.
2. Copies of all preliminary information sent to TAFE management by Lawrence Fong or Synergise Associates, plus any correspondence between both parties relating to the psychological risk assessment report from commencement of the contract with Lawrence Fong or Synergise Associates and TAFE, prior to submission of the final report.
3. Delivery date confirmation for the final report from Lawrence Fong, or Synergise Associates and cost details for the process.
3 The applicant was not satisfied with this determination and applied for internal review. The internal review was determined on 10 August 2005 by Dr Bendall, then Manager of the Freedom of Information and Privacy Unit of the respondent. Dr Bendall advised that one additional document had been obtained, and that access to this document was provided in full. In relation to the three matters identified by the applicant in his application for internal review, namely access to the complete copy of the psychological risk assessment report, the correspondence, and cost details, Dr Bendall stated:
4 The applicant complained to the NSW Ombudsman. In his letter dated 3 May 2006 Mr Wayne Kosh, Investigation Officer, outlined the steps taken in investigating this complaint, and another complaint relating to an application for access to audit documents. In the course of his letter, Mr Kosh noted that Mr Fong had advised the applicant by email on 24 July 2005 that the psychological risk assessment report he prepared for the Sydney Institute was provided to the Institute on 21 July 2005, and that the applicant had been provided with the final version of the psychological risk assessment report. Mr Kosh stated:
In relation to point 1 above, I am advised that the Institute is not in possession of the “psychological risk assessment report” and that it has in fact not been submitted to Management at TAFE as at Tuesday 9 August 2005. This effectively means that it is not held by the Department of Education and Training, nor was it held at the date of your initial FOI application (15 June 2005) or Mr Harrison's determination (5 July 2005).
In relation to point 2 above, I am advised that all correspondence was supplied to the FOI and Privacy Unit with other relevant documentation on 22 June 2005 and was therefore dealt with in Mr Harrison’s determination.
In relation to point 3 above, one additional document has been provided by the Institute. I have determined to grant you access in full to this document … .
5 Mr Kosh concluded:
In my discussions with Ms Hartigan and Mr Miller I advised them of the apparent discrepancy between the information given to you by Mr Fong and the Department's internal review determination of your FOI application. They advised me that Mr Fong provided the first draft of his psychological risk assessment report to the Sydney Institute on 21 July and requested comments from the Institute. Ms Hartigan and Mr Miller told me that this particular version of the report, together with comments made by the Institute about the report, were sent to Mr Fong several days later.
They further advised me that Mr Fong provided a second draft of his report to the Sydney Institute on 8 September for further comment and that this version was sent back to Mr Fong a short time later with additional comments. They advised me that Mr Fong then provided the final version of his report to the Sydney institute on 13 September, the version which was provided to you. They informed me that the Sydney Institute did not keep copies of the two earlier versions of Mr Fong's report, having returned both to him.
I have no reason to doubt the accuracy of the information provided to me by Ms Hartigan and Mr Miller. Based on their advice it would certainly appear to me that the Sydney Institute and thereby the Department did not hold copies of any versions of Mr Fong's report when the Department provided you with its determination on 1 August 2005. The Sydney Institute's return to Mr Fong of the earlier versions of his report would not seem to me unreasonable in the circumstances as those versions were provided to the Institute in order to obtain any comments to enable Mr Fong to write his final report. I have therefore decided not to take any further action about your complaint.
6 On 23 February 2006 the applicant applied to the Tribunal for review of the respondent's internal review determination. The question of whether the Tribunal had jurisdiction to deal with the matter (then 063074), and an application for review lodged by a colleague of the applicant, Mr Jackson (then 063005), was raised, as it appeared that the Ombudsman was still investigating complaints at the time that those applications were lodged with the Tribunal. The applicant and Mr Jackson withdrew their applications in 063074 and 063005, and filed fresh applications for review on 4 July 2006.
It would appear to me that documents detailing comments made by the Sydney Institute about earlier versions of Mr Fong's report would be subject to your FOI application in June 2005 for access to certain documents relating to a psychological risk assessment report prepared for the Sydney Institute of TAFE NSW by Lawrence Fong of Synergise Associates Pty Ltd. If these documents were not provided to you by the Department in its determinations and you are interested in obtaining access to these documents I suggest you contact the Department's FOI and Privacy Unit.
7 The applicant's reasons for seeking review in this matter were stated to be:
Proceedings before the Tribunal
It is very clear from the documentation surrendered and from other documents that I have/had been given access to that there was nowhere near full compliance with the scope of the request detailed in my original application.
…
My application for an in internal review of determination of FOI application FOI-05189 provided some clarification of areas where there was non-compliance.
… It can be clearly demonstrated that DET's FOI and Privacy Unit has not provided all, which raises questions as to the adequacy of their search.
…
8 This matter is one of a number of applications made to the Tribunal for review of determinations of requests for access to documents relating to matters of concern to the applicant and his colleague Mr Jackson as employees of the respondent. In addition to representing himself, the applicant has represented Mr Jackson in some of these matters as agent. It became apparent early on that it would be expedient to deal with a number of the applications for review together. That has been the case with this matter, which since 2006 has been listed together for planning meetings and directions hearings with three other applications made by the applicant (063057, 063236, 063237), one by Mr Jackson (063256), and one by both the applicant and Mr Jackson (063201). Some of these matters raise questions of whether particular documents are exempt; in all of them the applicant and Mr Jackson have contended that the respondent has failed to provide access to all documents falling within the scope of their various requests for access. In this matter the applicant has not pressed his claim for access to those parts of the documents claimed by the respondent to be exempt under clause 6 of Schedule 1.
9 From the outset the respondent has contended that the Tribunal has no jurisdiction under the FOI Act to review a decision where the applicant for access argues that the agency has not complied fully with the request for access, that is, by locating all relevant documents in its possession that fall within the scope of the request, and making a decision as to whether to provide access. On 27 June 2006 O'Connor DCJ determined in Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195 that the Tribunal did have jurisdiction in such matters, which are usually referred to in Tribunal decisions as involving an "adequacy of search" issue, and this matter has proceeded on that basis. The Director-General appealed from the President's determination to an Appeal Panel. The six matters were held over pending clarification of the timing of the Appeal Panel's consideration of that appeal. As discussed below, the Appeal Panel referred a question of law to the Court of Appeal under section 118 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), and it was not until 19 June 2008 that the Court of Appeal delivered its decision.
10 On 15 September 2006 the applicant requested that I disqualify myself in matters 063057, 063201, 063236, 063237 and 063255. I declined to do so (Johnston v Department of Education and Training [2006] NSWADT). The applicant was refused leave to appeal against this decision (Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6; 22 January 2007).
11 The applicant applied for leave to appeal against my decisions not to make an order under section 71 of the ADT Act directing that Mr John McDonnell, Assistant Crown Solicitor, not represent the respondent, and a direction under section 347 of the Legal Profession Act 2004 (Johnston v Department of Education and Training [2007] NSWADT 117). Leave was refused (Johnston v Department of Education and Training (GD) [2007] NSWADTAP 53; 3 October 2007)).
12 The applicant then commenced proceedings in the Supreme Court of New South Wales, seeking a number of orders. Those orders include a declaration that in failing to find that Mr John McDonnell, Assistant Crown Solicitor, could have been or in fact was an agent of a particular class, the Tribunal erred in law; a declaration that the Tribunal failed to properly exercise the discretions conferred by section 71 of the ADT Act; a declaration that the Tribunal had denied the parties procedural fairness; an order in the nature of mandamus directing the Tribunal to fulfil its statutory duty and determine the correct and preferable decision in respect of the application; and an order that the matter be remitted to a differently constituted Appeal Panel to be determined according to law.
13 During the two periods when applications for leave to appeal against my interlocutory decisions were made to the Appeal Panel, this and the other four matters were held over. The matter was further delayed until the likely timing of determination of the applicant's application to the Supreme Court was established. At a directions hearing held on 3 December 2007 it was apparent that there could be some delay, and the parties agreed that progress could be made on the substantive matters in dispute by Ms Bilbe-Taylor, an officer of the respondent, without the involvement of Mr John McDonnell, Assistant Crown Solicitor. Directions were made for filing and serving of witness statements. Since then, the parties have continued to discuss all the matters involving the applicant and Mr Jackson, and a number of those matters have now been settled and withdrawn. By the time of a planning meeting held on 24 June 2008, only three of the five matters which had been the subject of the applications to the Appeal Panel, and thus to the Supreme Court, remained on foot: 063201, 063256, and this matter.
14 The Court of Appeal delivered its decision in the referral from the Appeal Panel in Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195 on 19 June 2008: Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140. At the planning meeting of 24 June 2008 matters 063201, 063255 and 063256 were set down for hearing on 24 July 2008 on the issue of whether the Tribunal has jurisdiction. At that hearing Ms Bilbe-Taylor appeared for the respondent. The applicant and Ms Bilbe-Taylor made submissions in relation to the three matters, 063201, 063255, and 063256. Since the hearing, the parties have settled matters 063201 and 063256, and those matters have been dismissed. Consequently, these reasons deal only with matter 063255.
Applicant’s submissions
15 The applicant argues that the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 does not apply to this matter as it has been absolutely demonstrated that the documents existed at the time of his application for access. The applicant relies on the letter dated 3 May 2006 from the NSW Ombudsman, and in particular the passage quoted at paragraph [5] above. The applicant submitted that it is essential under the FOI Act that if information exists it should be released unless an exemption applies. In this matter (and 063201) the Ombudsman has demonstrated that the documents exist, and there is no claim for exemption. The applicant further relied on estoppel, as Ms Bilbe-Taylor had agreed to try to resolve the issue of access to documents concerning Mr Fong by requesting them from him. It is unreasonable for Mr Fong not to respond now.
Respondent's submissions
16 Ms Bilbe-Taylor submitted that the Ombudsman's letter of 3 May 2006 states that all documents relating to the Fong report have been released. The respondent has gone beyond the requirements of Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195 by writing to Mr Fong and asking him to provide a copy of his report, and he has not replied. The respondent has no documents other than those already released, and the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 applies.
Consideration
17 The Tribunal’s jurisdiction to review determinations under the FOI Act is conferred by section 53 of the FOI Act, which provides, relevantly:
18 Section 53(1) refers to review of a determination made under section 24 of the FOI Act. Section 24 provides:
53 Right to make a review application
(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.
…
(3) For the purposes of this section, a person is aggrieved by a determination:
(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that:
(i) an agency or Minister refuses to give the person access to a document, or
… and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.
19 Section 25(1) of the FOI Act sets out the circumstances in which an agency may refuse access to a document:
24 Determination of applications
(1) After considering an application for access to a document, an agency shall determine:
(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.
(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and
(b) if access to the document is to be given—any charge payable in respect of the giving of access, and
(c) any charge payable for dealing with the application.
(2A) Nothing in subsection (2) prevents an agency from determining that access should be given to the document even though more than 21 days have elapsed after the application was received by the agency. Sections 64 and 65 apply to access given pursuant to such a determination in the same way as they apply to access given pursuant to any other determination under this Act.
(3) This section does not require an agency to determine an application that the agency has transferred to another agency under section 20 or has refused to continue to deal with under section 22.
20 Section 28 sets out the provisions for notification of a determination under the FOI Act:
25 Refusal of access
(1) An agency may refuse access to a document:
(a) if it is an exempt document, or
(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, or
(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or
(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or
(c) if it is a document that is usually available for purchase, or
(d) if it is a document that genuinely forms part of the library material held by the agency.
(e) (Repealed)
21 The determination under review in these proceedings is the internal review determination by Dr Bendall dated 10 August 2005. With the exception of the one additional document provided to the FOI and Privacy Unit, and released to the applicant as part of the internal review, the internal review determination is to the effect that all documents held by the Sydney Institute falling within the scope of the request had been identified and provided with the initial determination. While Dr Bendall's notice of determination does not refer expressly to section 28(1)(b), when read in conjunction with Mr Harrison's determination of 5 July 2005, the determination is that the respondent did not hold a copy of Mr Fong's report at the relevant time; that all documents answering the terms of the request relating to correspondence had been provided; and that with the provision of the additional document relating to costings, the third point of the request for access has been dealt with.
28 Notices of determination
(1) An agency shall cause written notice to be given to the applicant:
(a) of its determination of his or her application, or
(b) if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document.
22 The Ombudsman letter of 3 May 2006 accepts that the Sydney Institute did not receive the first draft until after the date of the original determination, and did not hold copies of any versions of Mr Fong's report as at date of internal review determination. While the paragraph relied on by the applicant refers to comments made by Sydney Institute about earlier versions of the report, it does not confirm the existence of other documents which might include such comments.
23 The referral of a question of law under section 118 of the ADT Act in the Cianfrano matter was in the following form:
24 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:
Is a notification under section 28(1)(b) of the FOI Act 1989 that an agency does not hold a document a determination that the Administrative Decisions Tribunal has jurisdiction to review?
25 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]):
(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under section 24 of the Freedom of InformationAct 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.
26 Beazley JA set out the ambit of the review jurisdiction conferred by section 53 of the FOI Act in the following terms:
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.
27 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.
[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).
28 Basten JA held (at [108]):
29 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.
… 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.
30 The Court of Appeal decision is binding on the Tribunal. 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 terms of a request for access. The respondent has provided access to what it says are the only documents that fall within the scope of the applicant's request for access request. The applicant's contention that there must be more documents is not a determination reviewable under section 53. In the absence of jurisdiction, the appropriate course is to dismiss the application.
ORDERS
Application for review dismissed.
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