McGuirk v Director General, NSW Attorney General's Department

[2007] NSWADT 155

CITATION:	McGuirk v Director General, NSW Attorney General's Department [2007] NSWADT 155
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT Director General, NSW Attorney General's Department
FILE NUMBER:	063032
HEARING DATES:	20 February 2007
SUBMISSIONS CLOSED:	20 February 2007
DATE OF DECISION:	25 July 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Independent Commission Against Corruption (Operations Review Committee) Act 2006
CASES CITED:	Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195 Dyers v The Queen [2002] 210 CLR 285 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 Jones v Dunkel (1959) 101CLR 298
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell, Solicitor
ORDERS:	The deemed determination refusing the applicant access to the document he seeks is affirmed

1 The applicant, Mr McGuirk, applied under the Freedom of Information Act1989 (‘the FOI Act’) to the respondent, the Director-General of the Attorney General’s Department, for access to a document that he asserts is held by the respondent. He sought:

Report to the ICAC Operations Review Committee prepared by Ms Linda Madgwick in April/May of 2005 in response to the allegations of serious and systemic corruption at the University of New South Wales made by Mr Gerard Michael McGuirk in his letter to the ICAC dated 10 December 2004 and subsequently.

2 The Assistant Director General (Legal Services) Mr Feneley served notice on the applicant advising that the Department does not hold the document and that as a consequence, it was not able to release the document. The applicant sought an internal review of that ‘determination’. The Acting Director-General, Mr Tim McGrath, stated that Mr Feneley's document did not make a determination but nevertheless, for abundant precaution, treated the applicant's request as an application for internal review under the FOI Act and gave notice under section 28(1)(b) of the FOI Act. By that notice the Acting Director-General stated that the agency does not hold the document.

3 The applicant filed an application seeking external review by the Tribunal and asserted as his reason “invalid claim that document ‘not held’”. This assertion is based on the argument that the Director-General has an immediate right of access to the document and therefore it is held by the agency as a consequence of the operation of section 6(2)(e) of the FOI Act.

4 The respondent asserts that that the Tribunal has no jurisdiction in matters where notice is given under section 28(1)(b) of the FOI Act. The respondent submits that 28(1) of the FOI Act distinguishes determinations (from which internal and external reviews lie) from notices that a document is not held (from which review does not lie). However, The respondent concedes that the Tribunal’s President rejected the same argument in Cianfrano v Director General, Department of Commerce and Anor [2006] NSWADT 195. I have assumed, for the purpose of these proceedings, that the Tribunal does have jurisdiction to review such a decision.

Relevant legislation

5 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information.

6 Section 6(2)(e) of the FOI Act provides:

(2) In this Act:

…

(e) a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency, and

7 Section 24(2) of the FOI Act provides:

24 Determination of applications

…

(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.

8 Section 25(1) of the FOI Act provides that an agency ‘may’ refuse access to an agency’s document that has been requested on the basis of one or more of the grounds set section 25(1)(a) to (d). One of these grounds is that a document is an ‘exempt document’ as prescribed in Schedule 1 of the FOI Act.

9 Section 28(1) of the FOI Act provides:

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.

10 Section 58 of the FOI Act provides:

58 Tribunal may report improper conduct

If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.

11 Section 61 of the FOI Act provides:

61 Burden of proof

In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.

12 The Operations Review Committee was abolished on 26 May 2006 by the Independent Commission Against Corruption (Operations Review Committee) Act 2006.

The respondent’s case

13 The respondent relies on the evidence of Mr Bernhard Ripperger, the Manager Applications and Litigation of the Legal and Community Services Division of the respondent. Mr Ripperger provided a statement of evidence, which sets out the history of the application. The statement also includes the following:

“15. In preparing for these proceedings I have examined the file and noted a file note dated 8 August 2005 by my supervisor Lida Kaban, Director, Legal and Community Relations Division of the Department, which states "Confirmed DG does not have papers - retained by ICAC and it is exempt. All documents left at ICAC". A copy of the file note is annexed and marked with the letter "I".

16. On the file there is an earlier file note undated and not identifying the author but which appears to me to have been prepared by one of the two FOI officers who was handling the matter at the relevant time. She confirms that the ORC [Operations Review Committee] Records are retained by the ICAC itself. A copy of the said file note is annexed and marked with the letter "J".

17. By letter dated 1 September 2005 the Director-General wrote to the applicant stating, amongst other things:

"I am a member of the Review Committee, however, I do not hold the report or a copy of the report".
A copy of the letter is annexed and marked with the letter "K".
18. On 30 November 2006 the Director-General confirmed in a submission that:
“It was the practice of ORC members to leave their papers/reports at ICAC at the end of each meeting. I can confirm that I have rechecked my papers and have no ORC reports”
A copy of a submission with the Director-General's note is annexed and marked with the letter "L".

19. The Director-General was a member of the ORC by virtue of s. 60(1)(d) of the Independent Commission Against Corruption Act 1988 until 26 May 2006 when it was abolished.

20. Having regard to the nature of the document, I have formed the view that no person in the Department other than the Director-General could possibly hold the document.

14 Mr Ripperger also appeared before the Tribunal and was subjected to cross-examination.

15 Mr McDonnell provided written submissions with respect to the issue of the Tribunal’s jurisdiction. He refers to views expressed by O'Connor P in Cianfrano where he stated at paragraph [69]:

69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.

16 Mr McDonnell submits that the applicant has not adduced any evidence to persuade the Tribunal that an arguable case of that kind exists and has therefore failed to reach this threshold. In contrast, he says that the respondent has produced evidence both direct and indirect from the Director-General that he does not hold the report or a copy of the report. Therefore, he submits, the application must fail.

17 Mr McDonnell further submits that it would be irrelevant in any event whether or not the Director-General held the report in his capacity as a member of the now defunct Operations Review Committee.

18 With respect to the assertion that the respondent holds the document by operation of section 6(2)(e) of the FOI Act, Mr McDonnell asserts that the respondent has never had an immediate (or other) right of access to the Report. Secondly, the Report has never been in the possession, or under the control of, the Director-General "in his capacity as an officer of the agency". Accordingly, it is submitted that the extended reference to a document held by an agency has no application in this matter.

19 With respect to the applicant’s assertion that the respondent should have called the Director General to give evidence, Mr McDonnell submits that the applicant could have issued a summons to the Director General but did not do so. He argues that the absence of evidence by the respondent cannot be used to fill gaps in the applicant’s case and that conjecture cannot be turned into evidence. In support of this argument he referred to views expressed in Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 at [132] – [133]:

132 It was open to Ms Black to submit that an inference should be drawn that the directors' evidence, if it had been given, would not assist the respondent's case. She did not do so (See Jones v Dunkel (1959) 101CLR 298). Even if she had, the Tribunal would not necessarily arrive at such a conclusion. "The rule [in Jones v Dunkel] cannot be employed to fill gaps in the evidence, or turn conjecture and suspicion into evidence." (Byrne, D QC & Heydon JD, Cross on Evidence, Buttterworths, Sydney, 1986, p36) That is, the applicant's case, if it lacks substance itself, cannot be made out by the absence of evidence on the other side.

133 If the evidence were finely balanced, the absence of an explanation from the directors for their decision could lead to an adverse inference against them being drawn more readily. However in this case there is evidence from Mr Rumble that the Board will take into account a person's general reputation. This is offered as the likely explanation for the Board's decision.

20 Mr McDonnell submits that there is no evidence to show that the respondent holds the document and therefore this is not a case where the evidence is finely balanced. Accordingly, the Tribunal would not arrive at a conclusion that the Director General’s evidence, if it had been given, would not assist the respondent's case.

The applicant’s case

21 The applicant contends that the burden of proof is on the respondent pursuant to section 61 of the FOI Act. He contends that the respondent has failed to discharge this burden. He says that the respondent should have called the Director General to give evidence and refers to Jones v Dunkel (1959) 101 CLR 298 as support for the argument that the Tribunal should conclude that any evidence that the Director General could have given would not assist the respondent. The applicant also relies on views expressed by Gaudron and Hayne JJ. in Dyers v The Queen [2002] 210 CLR 285 where they stated (citations removed) at paragraph [11]:

The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one" (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.

22 He submits that the Tribunal should conclude that the respondent has failed to call any person who was able to give credible evidence about matters directly in issue and provided no good reason for failing to do so.

23 He submits that the inference should be made that the Director-General was a member of the Operations Review Committee because of his position with the respondent, not as a private individual. He therefore had access to the document that is sought in his capacity as an officer of the respondent. He argues that as a member of the Committee, the Director-General would be able to obtain a copy of the document. Accordingly, the Director-General (and therefore the respondent) has an immediate right of access to the document. He submits that the Tribunal should order that the respondent is to obtain the document and provide it to him.

24 The applicant also made detailed submissions in support of his application that the Tribunal should bring the matter to the attention of the responsible Minister pursuant to section 58 of the FOI Act. He asserted that the Director-General has failed to disclose a conflict of interest and contends that the history of the matter demonstrates a lack of good faith and that the evidence of male fides is overwhelming.

Findings

25 I note that the decision Cianfrano is the subject of a referral to the Supreme Court and this has yet to be determined. As I have indicated above, I have proceeded on the basis that the Tribunal has the jurisdiction to consider this matter. This is on the basis that the respondent has failed to determine the applicant’s FOI request pursuant to section 24(2) of the FOI Act. It is therefore deemed to have refused the applicant access to the document.

26 Accordingly the main issue for determination is whether the respondent holds the document that the applicant seeks by virtue of the operation of section 6(2)(e) of the FOI Act.

27 I am satisfied that the Director-General does not have a copy of the document. It is not in dispute that the Operations Review Committee was abolished in May 2006. In my view, any immediate right that the Director-General may have had to access the document ceased at that time. It follows the he does not have an immediate right of access to the document for the purposes of section 6(2)(e) of the FOI Act.

28 I am also satisfied that the evidence on behalf of the respondent establishes that no person in the Attorney General's Department other than the Director-General could possibly hold the document. Accordingly, the agency does not have an immediate right of access to the document. In the circumstances, there is no document held by the agency that falls within the scope of the applicant’s FOI application. The decision under review should therefore be affirmed.

29 I note the applicant’s request that I bring the matter to the attention of the responsible Minister pursuant to section 58 of the FOI Act. I am not satisfied that any officer failed to exercise his or her functions in good faith and consequently I do not intend to report the conduct of the Agency to the responsible Minister.

Order

The deemed determination refusing the applicant access to the document he seeks is affirmed.