McGuirk v University of New South Wales

[2005] NSWADT 255

CITATION:	McGuirk v University of New South Wales [2005] NSWADT 255
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	053107
HEARING DATES:	14/04/2005
SUBMISSIONS CLOSED:	04/14/2005
DATE OF DECISION:	07/26/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	access to documents - advance deposit and fees and charges - Freedom of Information Act - access to documents - advance deposit and fees and charges
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT A Mullen, Solicitor
ORDERS:	FINDINGS MADE 14/04/2005; Section 21 of the Freedom of Information Act 1989 operates only in relation to an original application and not in relation to an internal review application. Accordingly, it does not authorise an agency to request an advanced deposit in relation to an internal review application

1 Mr McGuirk has applied to the University of New South Wales for access to certain documents under the Freedom of Information Act 1989 (“the FOI Act”). The document that is the subject of this application is a report of the St James Ethics Centre. Section 18 of the FOI Act provides that an application is to be dealt with within 21 days after it is received. As a consequence of a series of events, the University failed to process McGuirk’s application in the time allowed. Under section 24 of the FOI Act the University is taken to have determined the application by refusing access to the document sought.

2 In those circumstances, Mr McGuirk was entitled to seek an internal review of the deemed refusal and he did so. The University requested that Mr McGuirk pay an advanced deposit before it would undertake the internal review. The amount of the deposit requested was $82.50. The University refused to continue dealing with McGuirk’s application when payment of the deposit was not made within the period of time specified in the University’s request.

3 The preliminary issue for determination was whether the University was entitled to make the request for the advanced deposit and whether it was entitled to refused to continue dealing with McGuirk’s application when payment of the deposit was not made.

4 Each of the parties made submissions on the issue. It was determined on the day and I provided brief oral reasons for the determination. These reasons are now provided in response to a request from Mr McGuirk.

5 Mr McGuirk contends that the amount of the deposit that was requested is unreasonable. He relies on figures provided by the University as a basis for asserting that the cost of determining his application was approximately $22.50 while the cost of providing access to the document was approximately $60. He further contends that the cost of determining his application was therefore more than adequately covered by the $30 initial application fee and the $40 fee for an internal review.

6 The University denies Mr McGuirk’s assertion and contends that the deposit sought is a conservative estimate of the cost of determining Mr McGuirk’s application.

7 Mr Mullen asserts that the University is entitled to request an advanced deposit by virtue of a combination of provisions contained within Division 1 of Part 3 of the FOI Act. That Division deals with access to documents. In particular, Mr Mullen relies on sections 21 and 34 of the FOI Act. Section 21 of the FOI Act relevantly states:

“21 Agencies may require advance deposits
(1) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advance deposit, as the agency may determine.”

8 Section 34 of the FOI Act relevantly states:

“34 Internal review
…

(4) An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17.”

9 Section 17 of the FOI Act provides for the original application for access to an agency's document. Mr Mullen contends that accordingly, subject to the exceptions contained in subsections 34(5) and 34(6) of the FOI Act, the University is required to deal with an internal review application as if it were a an original application under section 17 of the FOI Act. He further contends that all the provisions of Division 1 of Part 3 of the FOI Act apply to an internal review application with the exception of those in subsections 34(5) and 34(6).

10 In his submission, it follows that the University is entitled to refuse to continue dealing with Mr McGuirk’s application if it has requested payment of an advance deposit in relation to the application payment of the deposit has not been made within the period of time specified in the request. This is by operation of section 22 of the FOI Act.

11 I do not agree with the University’s argument. I do not agree that section 34(4) has a role to play in relation to the request for deposits. In my view section 21 of the FOI Act operates only in relation to the original application, not in relation to an internal review application.

12 If the legislature had intended that agencies should have the power to levy these amounts in relation to an internal review application it would have been expressly set out in the legislation. In section 21 the legislature has clearly set out this power insofar as it relates to the original application. It has not done so in relation to an internal review application. In the absence of an express provision in the FOI Act I do not think that agencies have that power.

13 It follows, in my view, that the University lacked the power to request the deposit. Accordingly, the University lacked the power to refuse to continue to deal with the internal review application and therefore there has been a deemed refusal of that application. Mr McGuirk is entitled to have the deemed refusal of the internal review application reviewed by this Tribunal.

Finding

Section 21 of the Freedom of Information Act 1989 operates only in relation to an original application and not in relation to an internal review application. Accordingly, it does not authorise an agency to request an advanced deposit in relation to an internal review application.