Kerekes v Dept for Education & Child Development
[2013] SADC 149
•25 October 2013
District Court of South Australia
(Civil: Appeal Under Freedom of Information Act)
KEREKES v DEPT FOR EDUCATION & CHILD DEVELOPMENT
[2013] SADC 149
Judgment of His Honour Judge Chivell (ex tempore)
25 October 2013
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION
Appeal from an external review by the Ombudsman of determinations made by the respondent.
Notice of Appeal included wide-ranging grounds. Appeal jurisdiction confined to Ombudsman’s determination only - no jurisdiction to consider the wider grounds. No jurisdiction to examine the sufficiency of the search for documents by the respondent.
No reason established to justify departure from the Ombudsman's confirmation of the respondent's determinations. Appeal dismissed.
Freedom of Information Act 1991 s 39, s 40; District Court Act 1991 s 42E, referred to.
Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140, considered.
KEREKES v DEPT FOR EDUCATION & CHILD DEVELOPMENT
[2013] SADC 149
This is an appeal pursuant to s 40(2) of the Freedom of Information Act 1991. The appeal is from a determination of the Ombudsman which was made on 10 January 2013. The Ombudsman was conducting an external review of a determination made by the Department for Education and Child Development, to which I will refer as ‘the Department’, on 4 September 2012, to release three documents to the appellant which were considered to be within the scope of a request made by her in a letter received by the Department on 6 August 2012.
The appellant's original request was in the following terms:
Copy of all records of payments made to myself circa June 30th 1994 under the targeted Separation Package Scheme including who authorised the payment and where did the funds emanate from.
I also request information relating to my workers compensation settlement payment. With regards to who authorised the payments and the source of the funds.
The precise terms of the determination by the Department in relation to that request were as follows, and they occur at page 14 of the Agreed Book of Documents.
As part of the discovery process, searches were undertaken with three documents identified being within the parameters of your request. I have considered the following listed documents with reference to the Freedom of Information Act 1991 and have determined to release them in full.
· Approval to offer TSP from the Commission for Public Employment dated 17/6/1994;
· 2 x electronic records from the SA Government Self Insurance Management System of lump sum payments.
The workers compensation files held by DECD do not contain any records of payments made in relation to the Targeted Separation Package you accepted.
So they are the terms of the determination.
The letter containing the determination advised the appellant of her rights to seek an internal review of the determination. The appellant sought an internal review and the gravamen of her request was that she disputed the validity of the decision to pay her a TSP and a lump sum in settlement of her workers compensation claim. She wrote:
It is evident that there must be more documents to which I am entitled and are covered by the parameters of my FOI request.
That is contained in a letter dated 17 September 2012 received in the chief executive officer's office on 18 September 2012 and appears in the Agreed Book of Documents at pages 21-23.
On 26 September 2012, the then chief executive officer of the Department confirmed the determination which had been originally made. In his letter, the chief executive officer pointed out the following – this is at page 37 of the book of documents:
A thorough scoping was undertaken within DECD that did not discover any records of payments that you accepted in relation to your Targeted Separation Package.
With regards to your workers compensation at the time, claims for government employees were managed by the Government Workers Rehabilitation and Compensation Office in the then Department of Industrial Affairs. It is unknown whether relevant documents are held by the current incarnation of the Public Sector Workforce Relations unit within the Department of the Premier and Cabinet. Similarly, as [sic] it must be assumed that the source funding for the settlement was the Government Workers Compensation Fund (now closed), as was the case for all settlements at that relevant time.
The documents provided to you by the determination were migrated from previous government databases. Although they do not exactly match the scope of your application, they were considered relevant to you and therefore, released in full.
As Principal Officer I may confirm, vary or reverse the original determination. I have considered all relevant factors and confirm the determination of 4 September 2012.
He then went on to advise the appellant of her further rights of review.
The appellant then sought an external review by the Ombudsman. After reviewing the matter and considering information provided as to the further searches for documents, the Ombudsman observed as follows – this appears at pages 49-50 of the book of documents. Headed 'Consideration of the submissions and the agency’s determination':
21. The applicant's external review application makes complaints about the process undertaken in 1994 in relation to matters leading to the payment of a target separation package and the termination of her employment. I will not respond to these matters as they are not relevant to the application for access to documents. I also note that my Office is unable to investigate employment related matters pursuant to section 17(1)(b) of the Ombudsman Act 1972.
22. The applicant has not provided any information on which she bases her assertion that there are further documents being held by the agency that have not been revealed.
23. The applicant has made previous applications for access to documents relating to the payment made to her under the targeted separation package scheme and her workers compensation claims.
24. By letter dated 10 March 2006 the applicant requested from the agency ‘copies of all documentary and non documentary material relevant to [her] numerous workers compensation claims’. The applicant later sought an external review by this Office of the determination made by the agency complaining that the agency either had or should have further documents which were not provided to her.
25. In determination of that external review my predecessor was satisfied that reasonable searches had been conducted by the agency. I note that Mr Moore is recorded at the time as advising this Office that the applicant was permitted to go through all the files being held by the agency (after exempt material was removed) and to take copies of any documents of which she did not already have a copy.
26 I also note that by application to the Department of Premier and Cabinet (DPC) received on 26 April 2002 [sic] pursuant to the FOI Act the applicant sought access to copies of ‘all documents which contain information about my personal affairs'.
27. The applicant sought an external review by this Office of the determination made by DPC complaining that the agency failed to identify, locate and provide all documents relevant to her request. My predecessor's determination in that matter was that he was satisfied that the searches conducted and enquiries made were reasonable and sufficient in the circumstances.
28. Given the history of this matter, and the information provided on the searches undertaken on this application for access, I am satisfied that the agency has conducted a reasonable search for all documents relevant to the application.
Then a heading, 'Determination'.
29. In light of the above, I confirm the agency's determination pursuant to section 39(11) of the FOI Act.
That's signed Richard Bingham, SA Ombudsman, dated 10 January 2013.
So moving on to the appeal in this Court, in her Notice of Appeal the appellant states:
I am aggrieved by the determination by DECD particularly as the scope of my application has been changed and DECD waived privilege before Judge Parsons.
As to the orders she seeks, the appellant wrote – these are in the Agreed Book of Documents at page 54, and I think for the purpose of this ruling I need to set out the orders sought:
1. As privilege has been waived, I request that all documents including exempt documents relating to my application and not the amended version by WorkCover be released to me.
2.Mine was a global termination and my understanding of the law is that if you void one part you void the lot. I refer to the Judicial Determination of Judge Gilchrist of 2nd November 1999.
3.According to the Judicial Determination of Judge Olsson dated 4.8.03, point 84 my contracts are void. I request orders to that effect.
4.The identity of the person/persons involved in the process/procedure for a TSP for myself as a work injured employee. All documents relating to this process.
5.The identity of the person/persons who provided inaccurate information to the ATO with regards to my TSP. (This needs investigating)
6.The identity of the person/persons responsible for allegedly implying to DSS/Centrelink that my work related injury of mild asthma made me unemployable and entitled to a disability pension. (This needs investigating)
7.The identity of the payee of monies to me under the Targeted Separation Package Scheme and where did the monies emanate from.
8.The identity of the person/persons responsible for the process/procedure required to identify all my workers compensation claims in order for them to be finalised. This was not done
9.Where did the funds emanate from to pay these costs.
10.Given that, according to the Law, future liabilities could not be redeemed until post May 1995 I have concerns relating to
10.1. The action of solicitors and the union regarding TSPs/TVSPs and the filing of Blue Minutes of Orders at a time when future liabilities could not be redeemed.
10.2. Solicitors being involved in the redemption of future liabilities post May 1995 and their evident lack of a fiduciary duty of care.
10.3. The auditing of my workers compensation costs which formed part of the Auditor-General's Reports to Parliament.
10.4. Cabinet giving approval to the CPE in 1994 and Cabinet itself being responsible for TVSPs for injured workers at a time when future liabilities could not be redeemed.
10.5. Was this malfeasance in office?
10.6. The use of funds, provided by the Federal Government in 1994, for the restructure of the public service were able to be used for the termination of the employment of injured workers. This was evidently not contrary to Federal Law. As future liabilities could not be redeemed at the time was this contrary to the Constitution? Was it malfeasance in office?
11.I respectfully request a full and thorough investigation into the issues I have raised in correspondence to the Ombudsman dated 14.12.2012 and in this section of my Appeal.
Section 40 of the Freedom of Information Act provides that a person who is aggrieved by a determination made on a review under Division 1 of the Act, which includes an ombudsman's review under s 39, may appeal against the determination (my underlining) to the District Court.
It follows that I only have jurisdiction to consider the correctness or otherwise of the Ombudsman's determination. I do not have the jurisdiction to engage in a broad-ranging inquiry into the matters raised in the Notice of Appeal. I should only depart from the decision appealed from if there are cogent reasons for doing so. I refer to the District Court Act, s 42E.
There is clear authority that there is no jurisdiction on an appeal of this nature to examine the sufficiency of the search for documents conducted by the Department or, in other words, to review the determination that the Department has no or no other documents. I refer to the case of Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors[1], per the judgments of Beazley JA at [76], with Giles J agreeing, and Basten JA at [135].
[1] [2008] NSWCA 140
The New South Wales legislation is not materially different in this respect from the South Australian legislation. I therefore hold that I do not have jurisdiction to inquire into the sufficiency of the search conducted by the Department in furtherance of the appellant's request.
If I am wrong about that, I find that there is ample evidence before me, in the form of affidavits from Mr Jalast, Ms Davis and Mr Moore, that the search was comprehensive and appropriate.
In saying that, I do not overlook the fact that further documents have been disclosed since that time. The appellant filed an affidavit, sworn on 7 June 2013, which provided further information, which led to further searches, as a result of which 13 further documents were located which were within the scope of the original request. Mr Jalast made a further determination that these 13 further documents should all be disclosed to the appellant. Mr Jalast points out that it is apparent from these proceedings the appellant was already in possession of seven of these documents.
It would appear to me that this further determination by Mr Jalast is not before me in these proceedings. If the appellant wishes to challenge that further determination, then she must resort to the procedures laid down in the FOI Act for doing so. If I am wrong about that and that further determination is before me, I indicate that there are no grounds which have been established to justify departing from that decision.
So my conclusion is that no reason has been established to justify departure from the original decisions: that is, the determination of the Department, the confirmation thereof by the chief executive officer, and the confirmation thereof by the Ombudsman.
For those reasons, the appeal is dismissed.
So I'm sorry, Ms Kerekes, that's the limit of my authority to deal with the matter and so I'm afraid that's all I can do.
MS KEREKES: But it has been a learning experience for me, so thank you for your time.
HIS HONOUR: I am gratified about that. Thank you.
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