McGuirk v University of New South Wales

[2007] NSWADT 270

CITATION:	McGuirk v University of New South Wales [2007] NSWADT 270
DIVISION:	General Division
PARTIES:	APPLICANT Michael (Gerard) McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	053331; 063152
HEARING DATES:	30 January 2006 21 February 2006 26 April 2007 14 June 2007
SUBMISSIONS CLOSED:	14 June 2007
DATE OF DECISION:	22 November 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - adequacy of search substantial and unreasonable diversion of agency's resources -
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director-General, Department of Commerce & Anor (No.2) [2006] NSWADT 195 McGuirk v University of New South Wales (GD) [2007] NSWADTAP 65 Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 Roads and Traffic Authority of New South Wales v Hutchinson (GD) [2007] NSWADTAP 28 Styles v Wollondilly Shire Council [2004] NSWADTAP 46 University of New South Wales v McGuirk (No 2)(GD) [2005] NSWADTAP 66 University of New South Wales v McGuirk (No 2)(GD) [2005] NSWADTAP 67
REPRESENTATION:	In person P.Singleton, barrister
ORDERS:	File Number 053331; 1.The decision of the University in respect to the request for access to the financial statements of U21 Global is set aside and the request is remitted for re-determination by the University in accordance with the directions set out in [23] above.; 2.The decision of the University in respect to the request for access to Deeds of Release between the University and employees who had their employment terminated is affirmed.; File Number 063152; 3. The decision of the University to refuse to continue to deal with Mr McGuirk’s FOI request of 15 December 2005 is set aside and his request is remitted determination in accordance with the FOI Act.

INTRODUCTION

1 This decision concerns two applications by Mr McGuirk seeking review of two decisions of the University of New South Wales (‘the University’) in regard to two separate requests Mr McGuirk made for access to documents pursuant to the Freedom of Information Act 1989 (‘the FOI Act’).

2 The first decision, which is the subject of file number 053331, is a decision concerning Mr McGuirk’s request of 19 July 2005 which included the following two categories of documents:

Copies of all annual reports, including financial statements, of Universitas 21 Global, the distant education arm of the Universitas 21, from 2001 onwards.

Copies of all ‘Deeds of Release’ signed on behalf of the University in respect of employees who have left the University (or its controlled entities), dated from 1 January 2001 onwards.

3 In determining this request the University decided that it had no documents coming within the first category of documents and refused Mr McGuirk access to documents coming within the second category of documents (‘the first reviewable decision’). That refusal was on the grounds that the documents were exempt under clause 6 (personal affairs) and clause 7 (business affairs) of Schedule 1 of the FOI Act.

4 On review before the tribunal the position of the University did not alter in respect to the first category of documents. However, in regard to the second category of documents the University argued that the Tribunal should determine the matter pursuant to section 25(1)(a1) of the FOI Act. That section provides that an agency may refuse access to a document ‘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 during exercise of its function’.

5 On 21 February 2006, following a hearing of the application before Judicial Member Montgomery, the Judicial Member remitted the first reviewable decision for re-consideration by the University and directed that the redetermination was to be completed within 21 days. After further consultation with Mr McGuirk, on 16 March 2006, the University completed its re-consideration. On re-consideration the University’s determination was to the effect that it held no documents coming within the first category of documents and that access to the second category of documents was refused on the grounds set out in section 25(1)(a1) of the FOI Act. In its re-determination the University advised Mr McGuirk that if he was dissatisfied with the decision he was able to proceed with his application under section 65(4) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

6 Mr McGuirk did proceed with his application and with the consent of the parties the matter was reheard before me on 26 April 2007 and 14 June 2007. At this hearing the parties relied on the evidence that had been presented to the Tribunal at the initial hearing and the respondent supplemented its evidence with additional statements and material.

7 The second decision, which is the subject of file number 063152 (‘the second reviewable decision’) is a decision concerning Mr McGuirk’s request of 15 December 2005 in which Mr McGuirk sought access to the following documents:

‘… copies of all correspondence between the University of New South Wales and the Officer of the Ombudsman in relation to the investigation by the Ombudsman of complaints made by:
The so called ‘Hall whistle blowers’ – Dr Clara He, Dr Juchuan Chen, Ms Hong Ha and Dr Mark Penny;

Associate Professor John Carmody; and

Mr Peter Curtin.

Commencing with the letter sent by Mr Bruce Barber to Professor John Niland dated 13 June 2002 with the subject line: “Re: Protected Disclosures about the University of New South Wales (UNSW)”.
Please note that I am not seeking by way of this application copies of the attachments to this correspondence.’

8 The University determined Mr McGuirk’s FOI request under section 22 of the FOI Act in that it refused to continue to deal with his request after it had requested payment of an advance deposit by Mr McGuirk in relation to his FOI request and that deposit was not paid within the period requested by the University. The amount of deposit requested was $1,605, which was that which the University estimated it would cost to deal with Mr McGuirk’s application.

9 Both applications raise difficult questions as to the operation of the FOI Act and the Tribunal’s power on review. However, as the questions differ in each application it is necessary to deal with them separately.

FILE NO. 053331

(a) Issues

10 There are primarily two issues for determination in regard to the first reviewable decision that is the subject of file number 053331. These are:

whether the University has conducted an adequate search for documents that are ‘annual reports, including financial statements’ of Universitas 21 Global; and

what is the decision the subject of review in regard to Mr McGuirk’s request for access to Deeds of Release and whether that decision is the correct and preferred decision?

11 A failure by an agency to address all documents it holds that fall within an FOI request has been held to be properly categorised as a decision of the agency to refuse to grant access to those documents under section 24(2) of the FOI Act: see Cianfrano v Director-General, Department of Commerce & anor (No.2) [2006] NSWADT 195 at 65. That is, where the Tribunal makes such a determination, there will be a deemed determination by the agency to refuse access to these documents making that determination a decision that is reviewable by the tribunal: see section 53 FOI Act and section 38 Administrative Decisions Tribunal Act 1997 ‘the ADT Act’).

12 In Cianfrano at [69] the President went on to say that where an applicant for external review asserts there has been inadequate search by the agency for the documents requested, the applicant is first required to put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of a deemed refusal exists. If an applicant meets this requirement, the onus is then on the agency to satisfy the Tribunal that it has adequately searched for the documents requested: see section 61 of the FOI Act.

13 As mentioned above, Mr McGuirk requested access to ‘all annual reports, including financial statements, of Universitas 21 Global’. It was not disputed Universitas 21 Global is a distant education centre of Universitas 21 and it operated from Singapore. The evidence of the University is that Universitas 21 (‘U21’) is an international network of 17 research-intensive universities, of which the University is a member, and is represented by the Vice Chancellor: see statement, dated 25 January 2006, of Melanie Harris, Executive Officer to the Deputy Vice-Chancellor of the University.

14 Universitas 21 Global (‘U21 Global’) is a joint venture private company, incorporated in Singapore. The joint venture is between U21 and Thomson Learning Limited. And the U21 members fund the joint venture company through another company called U21 Equity Limited. The University is not a member of U21 Equity Limited or U21 Global. However, it contributed to U21 Global through U21 Equity Limited.

15 Ms Harris confirmed that searches had been made for the documents requested in the Records Administration Section and the International Alliances Officer of the University and that no documents were located. She also stated that she had caused a search to be conducted of the electronic mail log for the Vice-Chancellor’s unit and no documents of the description provided by Mr McGuirk were located. Mr Simon Watson, Executive Officer to the Deputy Vice-Chancellor (International and Development) of the University, in his statement, dated 27 January 2006, gave similar evidence.

16 In a further statement, dated 5 September 2006, Simon Watson said that he had communicated with the Chief Academic Officer at U21 Global and was advised as follows:

‘U21 Global does not produce annual reports or annual financial statements to your University. U21 Global produces reports to U21 Equity, which then produces updates to its board members. Your University does not have a member on the Board of U21 Equity. While U21 Equity advises U21 managers [at the respective universities] with reports and updates of financial performance, these are not annual reports or annual financial reports.’

17 This evidence establishes that U21 Global does produce financial reports and suggests that the University is provided, through U21 Equity with copies of these reports. However, the University has not searched for these documents as they do not fall within the literal terms of Mr McGuirk’s request.

18 In my opinion, in this application such a literal interpretation was not warranted. Mr McGuirk’s request should have been more broadly interpreted. This the University appears to have failed to do when so directed by Judicial Member Montgomery at the time he ordered the decision of the University to be remitted for reconsideration. In my opinion, it was apparent from the terms of Mr McGuirk’s FOI request and subsequent correspondence that he was seeking access to financial reports of U21 Global that showed what its overall performance was in terms of income, expenses, assets and liabilities. In the circumstances it was reasonable for Mr McGuirk to use the description ‘annual’ in the absence of knowing how and when the financial performance reports were in fact prepared.

19 While an FOI request must contain information which is reasonably necessary to enable the document to be identified by the agency (see section.17(d) of the FOI Act), in my opinion it does not mean that the agency should construe that request as it would a subpoena issued by a court. Literal interpretation of a schedule to a subpoena is warranted as the subpoena is issued as an order of the court and a failure to comply with its terms may constitute contempt of court. That is an FOI request is to be considered in the overall context it has been made and not in isolation: see Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 at 692.

20 For the reasons set out above, I am satisfied that the threshold requirement as set out by the President in Cianfrano has been met and there has not been adequate search for the documents Mr McGuirk has requested and which are ‘held’ by the University.

21 The term ‘held’ is defined in section 6(2)(e) of the FOI Act to mean:

‘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.’

22 Accordingly, the University was required to also search for the documents requested by Mr McGuirk from those U21 companies in which it has an interest and an immediate right of access to documents of the nature requested by Mr McGuirk. On the material before the Tribunal I am not satisfied that appropriate enquiries, even if limited to U21, have been made.

23 Not withstanding the history of this application, the appropriate order is to set aside the deemed decision of the University under section 63(3)(d) of the FOI Act and remit this part of Mr McGuirk’s FOI request for re-determination. In its re-determination the University is directed to locate all financial statements of income, expenditure, assets and/or liabilities and of U21 Global in its possession or for which it has an immediate right to possession and determine whether to grant or refuse Mr McGuirk access to these documents.

(c) What is the reviewable decision in regard to the requested Deeds of Release?

24 A decision to refuse access to a document requested pursuant to the FOI Act, is a decision made under section 24(1)(a) of the FOI Act. The grounds on which an agency can make such a decision are set out in section 25 of the FOI Act which relevantly provides as follows:

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 the use by the agency in the exercise of its functions, or

(b) …

(2) (Repealed)

(3) An agency shall refuse access to a restricted document that is the subject of a Ministerial certificate.

(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):

(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and

(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

(5) Sub-section (1)(a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.

25 An ‘exempt document’ is defined in section 6 of the FOI Act and it relevantly provides as follows:

‘exempt document means:

(a) a document referred to in any one or more of the provisions of Schedule 1; …’

26 The provisions in Schedule 1 of the FOI Act relate to specified classes of document (e.g. cabinet documents and documents affecting law enforcement and public safety), documents containing information relating to the affairs of persons other than the agency to whom the FOI request has been made (e.g. intergovernmental relations, personal affairs, business affairs and research), or documents containing information of a particular kind (e.g. internal working documents, privileged communication, confidential communication etc).

27 As mentioned above, the decision of the University following internal review was to refuse Mr McGuirk access to the requested Deeds of Release on the grounds they were ‘exempt documents’ as the information in the documents was information affecting personal affairs of a person other than Mr McGuirk and the documents contained information affecting business affairs of other persons and fell within the terms of clause 6 and clause 7 of Schedule 1 the FOI Act. This was the decision for which Mr McGuirk sought review pursuant to section 53(1) and (3)(a)(i) of the FOI Act. Mr McGuirk was aggrieved by that decision in that he did not wish to have the names of the persons concerned, but did seek access to the remainder of the information in these documents. That is, he argued that the University should grant him access to the documents with the deletion of the names of the person to whom the Deed of Release related, pursuant to section 25(4) of the FOI Act.

28 However, on review, the University did not press this ground of refusal. It relied on another distinct ground of refusal; namely that set out in section 25(1)(a1) of the FOI Act. In my opinion, a decision based on this new distinct ground of refusal was not the same decision for which Mr McGuirk had sought review. Furthermore, it was a decision that contradicted the decision for which Mr McGuirk had sought review. That is, if it is accepted that the work involved in dealing with Mr McGuirk’s FOI request would, if carried out, substantially and unreasonably divert the agency’s resources away from their use in the exercise of the University’s function, how could the University have made a decision that the documents it held were exempt documents? To make a decision to refuse access on the basis that a document is exempt and to satisfy the notice requirements of section 28 of the FOI Act an agency must first locate and identify the documents it holds and for which exemption is claimed (see also The NSW FOI Manual, a joint publication of the NSW Department of Premier and Cabinet and the NSW Ombudsman, at [4.10]). On the material before the Tribunal the University failed to do this when making its decision that was the subject of Mr McGuirk’s review application to the tribunal. There is no evidence to indicate the University’s failure was motivated by bad faith. On the contrary, the inference is that the University was unaware of its obligations and made its decision based on the subject matter of the documents requested, which was clearly personal in nature and arguably confidential.

29 As a matter of logic a decision to refuse access to a document on the grounds set out in section 25(1)(a1) of the FOI Act should always precede any decision based on the grounds that a document is an exempt document. On this basis it is arguable that where a decision has been made to refuse access on the grounds that the documents requested are exempt documents the agency is no longer at liberty to argue or decide that the work involved in dealing with the FOI request would, if carried out, substantially and unreasonably divert the agency’s resources.

30 Counsel for the University initially argued that as a hearing on review is a hearing de novo it was open to the University to rely on this ground and that the Tribunal had power to make a decision based on this ground. I am not persuaded by this argument as it fails to take into account other provisions in the FOI Act and their overall effect. One relevant provision is section 61 of the FOI Act which places the onus on the agency to satisfying the Tribunal that its ‘determination’ the subject of external review (i.e. the reviewable decision) was justified on the facts and the applicable law. This requirement is not one that usually applies to a merit review of a reviewable decision. Another relevant provision is section 25(5) of the FOI Act which sets out a pre-condition that must be met by the agency when making a determination on the grounds set out in section 25(1)(a1) of the Act. This pre-condition requires an agency to endeavour to assist an FOI applicant in amending his/her FOI request so that the work involved in dealing with the application does not substantially and unreasonably divert the University’s resources. The conduct necessary to meet this pre-condition is in my opinion conduct which the agency is required to be engaged in and not the Tribunal. And where an agency fails to meet this pre-condition then it, nor the Tribunal, is in a position to make a decision on the grounds set out in section 25(1)(a1) (see also Roads and Traffic Authority of New South Wales v Hutchinson (GD) [2007]). NSWADTAP 28 at [49] to [52].

31 Neither Mr McGuirk nor the University argued that the decision made by the University on reconsideration following the remittal of the reviewable decision under section 65 of the ADT Act was not a decision that was open to the University on the proper construction of section 65 of the ADT Act and the provisions of the FOI Act. That decision being a refusal to grant Mr McGuirk access to the requested Deeds of Release on the grounds set out in section 25(1)(a1) of the FOI Act.

32 In my opinion different considerations apply when a reviewable decision is remitted by the Tribunal pursuant to section 65 of the ADT Act as the agency is expressly given the power, pursuant to section 65(2) of that Act, to either (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a new decision in substitution for the decision set aside. Where an agency varies the decision or sets the decision aside and makes a new decision in substitution for the decision set aside, sub-section 65(3) and (4) of the ADT Act provides that the application for external review is taken to be an application for review of the decision as varied or an application for review of the new substituted decision.

33 In this application, the decision of the University following its reconsideration of the decision that was the subject of review is that of Ms Judith Davoren, Executive Officer (Policy and Research) of the University. Her decision is set out in her letter, dated 16 March 2006, to Mr McGuirk. That letter concludes as follows:

‘I invited you to narrow the scope of your request and suggested a way to do so. You declined to accept the suggested narrowing of the request and, in fact, extended the understanding of the request to include Deeds of Release relating to industrial disputations. I have considered whether to request an advance deposit to process this request, but am mindful of the work involved as well as the probable exemptions that would apply to Deeds of Release and, in particular, the personal affairs of individuals and the business affairs of the University.

Accordingly, I have determined to refuse access to the documents on the basis that the work involved in dealing with the request would substantially and unreasonably divert the resources of the University in accordance with section 25(1)(a)(i) of the FOI Act.’

34 It should be pointed out that on re-consideration, Ms Davoren arguably had no power to consider requesting an advance deposit: see University of New South Wales v McGuirk (No 2) [2005] NSWADTAP 66 and University of New South Wales v McGuirk (No 2) [2005] NSWADTAP 67.

35 In her decision Ms Davoren does not refer to the decision the subject of review. Nor does she state that the decision she has made is a decision that varies the decision the subject of review or that it is a decision made in substitution of that decision. However, she does expressly state that her decision has been made pursuant to an order by the Tribunal that the decision the subject of review be remitted and reconsidered by the University. In my opinion, when her decision is examined as a whole it is either a decision to vary or substitute the decision the subject of review pursuant to section 65(3) of the ADT Act and by reason of section 65(4) of that Act it became the decision the subject of review as Mr McGuirk exercised his rights under that subsection to proceed with his application for review. This is also consistent with the manner in which the parties dealt with the application at the adjourned hearing before me.

(d) Is the reviewable decision of the University the correct and preferred decision?

36 In Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 at [43] to [59], the President considered the principles set out in the cases as to what is meant by a ‘substantial and unreasonable’ diversion of an agency’s resources under section 25(1)(a1) of the FOI Act. At [44] and [45] the President said that it had ‘no ready or precise measure’ and that ‘there was a need for a balanced approach which takes heed of the impact of the agency, and the extent to which the applicant has sought to revise the request to make it manageable.’ At [62], His Honour went on to identify the following as some of the factors that were relevant to this issue in that application:

(a) the terms of the request, especially whether it is of a global kind or generally expressed;

(b) the demonstrable importance of the document or documents to the applicant;

(c) whether the request was a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications;

(d) the agency’s estimate as to the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost;

(e) the reasonableness or otherwise of an agency’s initial assessment and whether the applicant has taken a co-operative approach to redrawing the boundaries of the application; and

(f) the time lines binding on the agency under the FOI Act (i.e. 21 days within which to respond to the request and 14 days to respond to an internal review).

37 In Cianfrano 137, the applicant had sought access to all documents held by the agency concerning the Premier and Sydney Markets or Flemington Markets. His Honour found that the applicant’s FOI request was wide in its terms, the documents sought were of public interest and it would take the agency 229 hours to deal with the request. In balancing these and other factors His Honour found that on balance the work involved in dealing with the request amounted to a ‘substantial and unreasonable’ diversion of resources.

38 In my opinion the abovementioned factors are also relevant to this application.

39 In this application, Ms Davoren in coming to her decision relied on advice from David Ward, Manager of the Industrial Relations Unit at the University and that which was contained in his statement dated 27 January 2006. That advice was to the effect that:

(a) the University did not have a central register of deeds of release, other than those to which the seal of the University was applied;

(b) not all deeds of release relating to termination of employment are held in the Industrial Relations Unit;

(c) based on a turnover of about 500 University employees each year Mr McGuirk’s request would require the retrieval and perusal of approximately 2,500 employee files and there would be further retrieval and perusal of files of employees of the University-controlled entities;

(d) it was estimated that to retrieve, examine and refile each file would take about 10 minutes which would impose a significant administrative financial burden on the Industrial Relations Unit and the University generally; and

(e) the additional work that would be involved as the documents were probably exempt on the grounds of containing information relating to personal affairs and business affairs of persons other than Mr McGuirk.

40 At the adjourned hearing the University relied on a further statement, dated 30 August 2006, by Mr Ward. In that statement Mr Ward confirmed that which he had stated in his earlier statement and he went on to say that the Deeds were highly confidential and that ‘the most time-effective means to identify a number of significant such deeds would be to limit the FOI application to being request for access to only those deeds that could be located by conducting electronic searches in the University’s seal book.’ An offer he understood Mr McGuirk had rejected.

41 What Mr Ward had suggested in his first statement and that which had been put to Mr McGuirk by Ms Davoren in her letter of 24 February 2006 as an endeavour to assist Mr McGuirk in amending his application in accordance with section 25(5) of the FOI Act. That suggestion was that Mr McGuirk give consideration to limiting his request to Deeds identifiable by way of electronic searches by (a) relevant staff members of the University’s Industrial Relations Unit or Human Resources Department and (b) the administrative officer responsible for the University’s seal book.

42 In his response, dated 27 February 2006, to Ms Davoren, Mr McGuirk said:

‘… Please note that I do not accept the assertions made by Mr Ward in his statement in regard to the amount of work which is required to identify the ‘ deeds of release ’ which fall within the scope of Part 4 of my FOI Application …

I believe that Mr Ward’s statement was prepared with the deliberate intent of misleading the Tribunal in regard to the amount of work required. The cross examination of Mr Ward on 30 January 2006 provided considerable support for this view.

If and/or when this matter comes back before the Tribunal (and I sincerely hope that this will not be necessary), I will make submissions to this effect.’

43 No such submissions were made.

44 In the absence of further submissions, on the material before the Tribunal I accept the evidence of the University as to the estimate of the amount of time it would take to locate and identify the documents sought by Mr McGuirk. As set out above, this on its own is not sufficient to make a finding that the work involved in dealing with Mr McGuirk’s FOI request would involve a substantial and unreasonable diversion of the University’s resources. However, the factors which, in my opinion, do, in this application, tip the balance towards a finding that the work involved in dealing with his FOI request would amount to such a substantial and unreasonable diversion are:

(a) the request is made in a global sense and there is no apparent public interest in the disclosure of these documents. On the contrary having regard to the subject matter of the documents the public interest would appear to rest in their non disclosure; and

(b) Mr McGuirk has at no time sought to co-operate and alter the breadth of his FOI request.

For the reasons set out above, I find that the decision of the University in regard to Mr McGuirk’s request for access to the specified Deeds of Release is the correct and preferred decision.

(a) Issues

45 The issues as identified by the parties at the hearing in respect to this application was whether the University’s decision to request and advance deposit was reasonable and secondly whether the amount requested was reasonable.

46 However, in my opinion there is a preliminary jurisdictional issue which must be determined first; namely whether, on external review of a decision to refuse to deal with an FOI request under section 22(3) of the FOI Act, the Tribunal has jurisdiction to consider:

(a) the reasonableness of the University’s request for an advance deposit: and

(b) the reasonableness of the amount requested.

47 The decision of the University the subject of review in this application is a decision made pursuant to section 22(3) of the FOI Act which provides as follows:

‘22 (1) (2) (Repealed)
(3) Any agency may refuse to continue dealing with the application if:

(a) it has requested payment of an advance deposit in relation to the application, and

(b) payment of the deposit has not been made within the period of time specified in the request.

(4) If an agency refuses to continue dealing with an application under subsection (3):

(a) it shall refund to the applicant such part of the advance deposits paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application, and

(b) it may retain the remainder of those deposits.

(5) An agency that refuses to continue to deal with an application under this section must forthwith cause written notice of that fact to be given to the applicant.

(6) A refusal to continue to deal with an application under this section is to be taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions apply accordingly.

(7), (8) (Repealed)’

48 Accordingly, it is a discretionary power which can only be exercises if the two preconditions set out in section 22(3) have been satisfied. These pre-conditions relate to an agency having exercised its powers under section 21 of the FOI Act. In Styles v Wollondilly Shire Council [2004] NSWADTAP [2004] 46 at [12] the Appeal Panel set out the requirements that need to be met in order for an agency to refuse to deal with an FOI request under section 22(3). These are:

(a) formed an opinion that the costs of dealing with the application were likely to exceed the amount of the application fee: section 21(1);

(b) requested the applicant to pay to it such amount, by way of advance deposit, as is determined : section 21(1);

(c) requested an amount which together with the application fee, did not, in its opinion, exceed an amount that would be necessary to cover the costs of dealing with the application: section 21(3);

(d) included in the request for an advance deposit a notice that set out the basis on which the amount of deposit was calculated: section 21(4); and

(e) waited for the period of time specified in the request to expire: section 21(3)(b).

49 In this application, each of the above were satisfied. Mr McGuirk had lodged his FOI request on 15 December 2005 and on 22 December 2005, Mr Deborah Osborne (now Gibson), Head of Policy Management at the University, made a request for an advance deposit. The amount requested was $1,605.00 and the request was based on the estimated cost of dealing with the application, details of which were provided to Mr McGuirk. Mr McGuirk was requested to pay this amount by 14 January 2006. When Mr McGuirk failed to make the payment on the specified date, on 16 January 2006, Ms Osborne made the decision to refuse to deal with his application. Mr McGuirk was notified of this decision in a letter from Ms Gibson dated the same date. Mr McGuirk then sought internal review of that decision and it is this internal review decision which is the subject of this application.

50 The question is, having satisfied these requirements, whether the Tribunal has jurisdiction on external review of a decision under section 22(3) to consider factors such as the reasonableness of the request for an advance deposit and the reasonableness of the amount requested? In this regard section 63(1) of the ADT Act provides that the Tribunal’s jurisdiction on review of a reviewable decision is to determine the correct and preferable decision having regard to the relevant factual material and the applicable law.

51 In a recent decision of McGuirk v University of New South Wales (GD) [2007] NSWADTAP 65, the Appeal Panel held at [18] that the Tribunal has no jurisdiction to review an agency’s decision under section 21 of the FOI Act to request an advance deposit, nor to decide whether the decision of the agency was reasonable. In that decision the Appeal Panel distinguished a decision under section 21 as being a decision in the ‘acceptance phase’ of decision making under the FOI Act. On the other hand decisions made under section 24 of that Act were decision made in the ‘determination phase’ of decision making under the Act. It was only the latter decisions, which the Appeal Panel held to be reviewable by the Tribunal. Its reasoning for this conclusion were the express words of section 53 of the FOI Act, which made reference to decisions under section 24 and not decisions under section 21 of the FOI Act. Decision in the ‘determination phase’ included decisions of an agency to grant access to documents subject to a charge or a decision imposing a charge for dealing with an application under section 24(1)(b) and (c): see section 53(3)(a)(iv) and (v) of the FOI Act where the Tribunal is expressly given the power to examine the reasonableness of the charge imposed by the agency.

52 The essence of the Appeal Panel’s decision was that a decision by an agency to request an advance deposit under section 21 of the FOI Act was not a decision that was the subject of review by the Tribunal as it was not a decision falling within section 53 of that Act.

53 The Appeal Panel, however, did not consider the tribunal’s power on review of a decision under section 22(3) of the FOI Act. In my opinion, this section gives rise to different issues of construction.

54 Firstly, as noted by the Appeal panel in Styles (supra) at [7], the Tribunal’s jurisdiction to review a determination made under section 22(3) of the FOI Act arises by reason of section 22(6) and not the express terms of section 53 of that Act. However, the provisions in Division 2 of Part 5, so far as they are relevant to external review by the tribunal do apply.

55 As pointed out above the power vested in the agency under section 22(3) is discretionary as is the power under section 21 to request an advance deposit. This means that the failure to pay an advance deposit does not automatically give rise to a decision under section 22(3), which has the effect of determining or finalising the FOI request.

56 Section 63(2) of the ADT Act provides that in determining the correct and preferable decision the Tribunal may exercise all of the functions that are conferred or imposed by the relevant enactment on the administrator. Accordingly, in reviewing a decision made pursuant to section 22(3) of the FOI Act the Tribunal has the same discretionary power.

57 In order to determine the extent of the Tribunal’s jurisdiction on review of a decision under section 22(3) of the FOI Act it necessary to consider what factors are relevant to the exercise of a discretion under that section. As there is no express provision in this regard the starting point is to examine the purpose of this provision having regard to the objective of the legislation as a whole and the relevant part in which the provision is located.

58 The objects of the FOI Act are set out in section 5(1) and includes ‘to extend, as far as possible, the rights of the public to obtain access to information held by the Government’. Section 5(2) sets out the means by which Parliament intended the objects to be achieved and this includes ‘conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government.’

59 Section 5(3) of the FOI Act, provides:

5(3) It is the intention of Parliament:
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.’

60 Section 16 provides every person with an enforceable right to be given access to an agency’s documents in accordance with the Act. And when determining an FOI request for access to documents made under section 17 of the FOI Act an agency can impose a charge for dealing with the application or for providing access to documents: see section 24(1)(b) and (c). Section 67(1) provides for the Minister to establish guidelines in relation to the imposition, collection, remittal and waiver of fees and charges and section 67(3) provides that the agency or Minister in determining the fee or charge must abide by the guidelines that are in force. The Tribunal is also required to have regard to these guidelines when reviewing a determination of an agency to impose a charge: see section 67(3A)(a) of the FOI Act.

61 Guidelines have been published in the Freedom of Information (Fees and Charges) Order 1989(‘the Fees and Charges Order’). These guidelines must be read together with the relevant paragraphs of the NSW FOI Manual which elaborate on how and when these charges are to be imposed and the circumstances in which charges can be waived or reduced. These are discussed more fully below.

62 As section 22 is predicated on a decision having been made under section 21 it is necessary to briefly consider that provision. As mentioned above, it is a discretionary power, which must be exercised prior to the expiry of 21 days from the date it received the FOI request: see section 21(6). It is a decision that can only be made if the cost of dealing with the FOI applicant’s request would exceed the application fee and then the decision as to the amount of advance deposit must be based on what the agency estimates the cost would be to deal with the FOI request: see section 22(1). The agency is also has power to request a further advance deposit: see section 22(2). In estimating the cost of dealing with the FOI request the agency is to have regard to the amounts set out in the Fees and Charges Order: see section 22(4) and NSW FOI Manual (supra) at [6].

63 The purpose of s.21 of the FOI Act is clearly to facilitate a payment, in advance, in the form of a deposit, towards the charge that an agency will ultimately levy on the applicant as part of its determination of the FOI applicant’s request. It is also a mechanism through which the agency can inform the applicant that his/her FOI request is one for which the agency will levy a charge as the cost of dealing with the request will exceed the amount paid by way of application fee and an estimate of that charge.

64 Where an agency does make a request for an advanced deposit, the FOI applicant can either pay or not pay the amount requested. Ideally, where an applicant believes the estimated costs and or the amount of advance deposit requested are excessive there should be some communication between the FOI applicant and the agency in an endeavour to reduce the costs. This may be through clarifying nature of the documents sought or reducing the number of documents for which access is sought.

65 Where an FOI applicant pays the advance deposit amount requested within the time requested, this does not prejudice his/her right to seek review of any amount that is ultimately charged when the agency has determined his/her application under section 24.

66 Where the FOI applicant fails to pay the advance deposit there are three options available to the agency and each option will determine or finalise the the FOI request.

67 One option is to make a decision under section 22(3) of the FOI Act. That decision must be made within the time prescribed (i.e. 21 days from the date the FOI request was received, but not counting the days between the agency making a request for an advance deposit and the date on which it was requested to be paid).

68 Another option is to determine the request within the time prescribed (i.e. the abovementioned 21 days) and impose a charge pursuant to section 24(1)(b) or (c) of the FOI Act.

69 The last option is to do nothing, in which case, when the time prescribed for dealing with the request has expired (i.e. the abovementioned 21 days) the agency will be deemed to have determined to refuse the FOI applicant access to the documents requested pursuant to section 24(2) of the FOI Act.

70 A determination under section 22(3), 24(1)(b) or (c) and a deemed determination under section 24(2) of the FOI Act are each reviewable (i.e. internal and external) by the FOI applicant if aggrieved by the determination: see sections 22(6), 34 and 53.

71 It can be seen from these provisions that Parliament’s intention is that agencies and Ministers are to determine an application for access to documents under the FOI Act quickly and efficiently with the agency being given power to levy a charge on the applicant for giving access to documents or for dealing with an application. And once a determination is made the FOI applicant has a right of review if aggrieved by the determination.

72 At the same time, for the reasons set out above, a determination under section 22(3) differs substantially from a determination under section 24(1)(b) and (c) in several respects. The former is made by the agency prior to having dealt with the FOI applicant’s request and it is predicated on estimates of costs for dealing with the application, whereas the latter is made after the agency has dealt with the application in full and knowing what was involved in dealing with the application. While both decisions are reviewable decisions, the Tribunal is given no express power to review the advance deposit request decision that predicates the former decision but is given express power to review the charge that is the subject of the latter.

73 The purpose of section 22(3) of the FOI Act is clearly so that an agency can determine or finalise a substantial FOI request where the FOI applicant fails to pay an advance towards the charge that the agency has estimated it will cost to deal with the request. There may be many reasons why the FOI applicant has failed to pay the amount requested. It could be that the FOI applicant considers the estimate to be incorrectly calculated or estimated, or that the amount of advance deposit requested is unreasonable in the circumstances. These and other matters such as the breadth of the FOI request are all matters which would be relevant to the agency exercising its discretion under section 22(3). They are also factors that in my opinion, the Tribunal can have regard to when determining whether the decision of the agency to refuse to deal with the FOI application is, in the circumstances, the correct and preferable decision. It is in this context that the reasonableness of the amount of advance deposit requested can be considered. To find otherwise would mean that an FOI applicant who had his/her FOI request determined under section 24(1)(b) or (c) could on review challenge the reasonableness of a charge, yet an FOI applicant who has not had his/her application dealt with but his/her application has been determined (i.e. also finalised) on the grounds that the FOI applicant has failed to pay the requested advance deposit cannot put into question the reasonableness of the amount requested. This would meant that where an agency abuses its discretion under section 21 and 22 by making unreasonable estimates and charging unreasonable amounts of advance deposit would need to seek judicial review in the Supreme Court. Such could not have been the intention of Parliament, otherwise it would not have made provision for external review of a decision made under section 22(3).

74 Accordingly, in my opinion, on review of a decision made under section 22(3) the Tribunal has jurisdiction to consider the reasonableness of the amount of advance deposit requested. This is not a review of the decision to request an advance deposit. It is merely a matter relevant to the question of whether the exercise of the discretion in section 22(3) was the correct and preferred decision.

75 Other factors relevant to the exercise of the discretion under section 22(3) are the nature and type of documents requested, the work estimated to be involved in dealing with the application, the estimated costs of dealing with the application, whether there are ways to reduce the ambit of the application so that the estimated costs can be reduced, whether the agency has communicated with the FOI applicant in an endeavour to reduce the ambit of the request and the attitude of the FOI applicant and his/her level of co-operation.

76 The same factors are relevant to an agency when exercising its powers under section 21 of the FOI Act.

(c) Were the estimated charges and amount of advance deposit requested by the agency unreasonable?

77 The Fees and Charges Order, made pursuant to section 67(1) of the FOI Act, provide that charges can only be imposed where the cost of dealing with an FOI request exceeds the application fee. If they do then an hourly charge of $30 for time spent by the agency processing, locating, decision- making, consulting third parties (where necessary) and photocopying can be charged. Where an FOI applicant seeks documents about their own personal affairs the first 20 hours are free. This does not apply in this application.

78 The most recent publication of the NSW FOI Manual (supra) at [6] deals with charges and fees. At [6.1.4] it is stated that ‘applicants be kept fully informed of fees and charges, especially with large scale requests and/or where advance deposits may be involved’.

79 Paragraph [6.4] deals with requests of advance deposit and at [6.4.1] it is stated:

‘… Generally, this provision would need to be used only where the estimated cost of dealing with an application is significant. Agencies are encouraged to explore opportunities for cost reductions and actively canvas them with the applicant. The advance deposit request letter may include suggestions to reduce the cost of dealing with the application (such as negotiating a reduction of the scope of the documents requested, perhaps by discussing and clarifying the request).’

80 At the hearing, the University relied on a statement of Mr Deborah Gibson, dated 7 May 2007. Ms Gibson also gave oral evidence and was cross-examined by Mr McGuirk. In regard to the documents sought by Mr McGuirk, Ms Gibson said that there was no separate file containing correspondence between the University and the Ombudsman in regard to the Ombudsman’s investigation into complaint’s made by the Hall whistleblowers, Associated Professor John Carmody and Mr Curtin. This correspondence she said was contained in two files held within the Legal Division of the University. One file was made up of 26 arch leaver folders in which documents relating to the complaints prior to the commencement of the Ombudsman investigation were filed in chronological order. The other file, made up of 10 arch leaver folders, contained documents relating to the Ombudsman’s investigation. These documents were also filed in chronological order. As the electronic record of the documents in these files were limited, in order to meet the request of Mr McGuirk, each of the 36 folders would need to be examined and the relevant documents extracted. This she had estimated to take 10 hours. The other tasks and time estimates for these tasks were as follows:

‘Copy and collate documents 4 hours

Schedule documents 1.5 hours

Inspect and make decision 10 hours on each document

Preparation of documents: number 17 hours each document and prepare for release in full or in part or identify wholly withheld documents

Consultation 4 hours

Preparation of determination 7 hours

81 The charge for each of the tasks identified by Ms Gibson accorded with the provisions of the Fees and Charges Order and the estimates made by Ms Gibson were affirmed on internal review. The estimated charges, as estimated by Ms Gibson, were $1,605 and this was the amount that was requested from Mr McGuirk as an advance deposit.

82 Mr McGuirk questioned both the decision of the University to request that he pay an advance deposit and the amount requested. He alleged that the request was part of a pattern of oppressive and vexatious conduct and that the University had failed to act in good faith and failed to give effect to the objects of the FOI Act.

83 In my opinion, there is no material before the Tribunal to support any of Mr McGuirk’s allegations. On the contrary, the material indicates that the University has endeavoured to act in accordance with the terms of the FOI Act and the NSW FOI Manual (supra). This does not mean that the decision the subject of review is the correct and preferred decision: see section 63 of the ADT Act.

84 As can be seen from the terms of Mr McGuirk’s FOI request the subject of the second reviewable decision, his request while specific in that he sought access to correspondence between the University and the Ombudsman in regard to investigations of specific complaints, it is a significant request as these documents are contained within a larger file(s) which contains all the documents that relate to the investigations. Accordingly, as it is a significant application, the University, in its discretion, had the power to charge Mr McGuirk for dealing with the application and also to seek an advance deposit for dealing with the application under section 21.

85 In regard to Ms Gibson’s estimate of the work involved in dealing with Mr McGuirk’s FOI request and the cost thereof, I accept that her estimate is one that she has genuinely based on information she had available to her and her experience generally in dealing with FOI applications. However, there are many aspects of her estimate that might be described as guess work in that she had no idea of how many documents relevant to Mr McGuirk’s request were in the files. This Ms Gibson readily acknowledged and it is undoubtedly a feature that arises in some significant FOI requests when they are first received.

86 Given Ms Gibson’s experience I accept her estimate of 10 hours to peruse the 36 arch lever folders in question. As to the other tasks, which in my opinion are unobjectionable in description, these estimates are based on a guess of how many relevant documents there are in the files and what is contained therein. The reason for this is the manner in which the documents were filed in the various folders and the fact that there is a limited record keeping system for correspondence received and sent. This means that it is possible that following a perusal of the folders only a few relevant documents will be identified and if that is the case then Ms Gibson’s estimates other than perusing the folders will be overstated. On the other hand if there are numerous letters her estimate may be correct or even understated. At the end of the day, subject to Mr McGuirk’s rights of review, if the University determines his FOI request by imposing a charge for dealing with the request Mr McGuirk will be obliged to pay that which has been charged. Mr McGuirk does of course have a right to seek a reduction of the charge on grounds such as financial hardship or public interest grounds. To date he has not raised this issue.

87 While section 21(3) of the FOI Act enables an agency to request, by way of advance deposit, the full amount it has estimated will be chargeable for dealing with the FOI request, this is the upper limit of what can be requested. In my opinion, where that upper limit is based primarily on guess work, without even the most cursory examination of the relevant files, it is not appropriate for an agency to then seek to exercise its discretion under section 22(3), where the amount of advance deposit requested equals the amount estimated. In this context the requested advance deposit will be unreasonable. It will also provide little opportunity or incentive for an FOI applicant to amend his/her request so as to reduce the charges that will be payable. As set out above, the NSW FOI Manual envisages that there be some consultation with the FOI applicant before such a request is made. The ability to seek an initial advance deposit and then a further deposit provides support for such a construction.

88 Accordingly, having regard to all the relevant circumstances, in my opinion, the decision of the University to exercise its discretion under section 22(3) of the FOI Act to refuse to continue to deal with Mr McGuirk’s FOI request is not the correct and preferred decision and should be set aside pursuant to section 63(3)(d) of the ADT Act and that his FOI request be remitted for re-determination in accordance with the terms of the FOI Act. This does not prevent the University from determining the FOI request in accordance with section 24(1)(b) or (c) of the FOI Act or any other relevant provision under that Act.

89 Having regard to the history of this matter I urge both parties to endeavour to have the FOI request determined as quickly as possible. This will require Mr McGuirk to consider whether he wishes to pursue his FOI request in whole or part having regard to the costs estimated by Ms Gibson in dealing with his FOI request. At the same time the University should endeavour to assist Mr McGuirk in finding ways in which his FOI request might be amended so that if a charge is to be imposed it is minimised. Again this will require the co-operation of Mr McGuirk.

CONCLUSIONS

90 For the reasons set out above, the Tribunal orders:

File Number 053331

1. The decision of the University in respect to the request for access to the financial statements of U21 Global is set aside and the request is remitted for re-determination by the University in accordance with the directions set out in [23] above.

2. The decision of the University in respect to the request for access to Deeds of Release between the University and employees who had their employment terminated is affirmed.

File Number 063152

3. The decision of the University to refuse to continue to deal with Mr McGuirk’s FOI request of 15 December 2005 is set aside and his request is remitted for determination in accordance with the provisions of the FOI Act.




I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.


REGISTRAR