McGuirk v University of New South Wales

[2005] NSWADT 201

CITATION:	McGuirk v University of New South Wales [2005] NSWADT 201
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	053164
HEARING DATES:	Decision on the papers
SUBMISSIONS CLOSED:	07/06/2005
DATE OF DECISION:	08/25/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	access to documents - advance deposit and fees and charges
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Freedom of Information (Fees and Charges) Order 1989 Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT A Mullen, Solicitor
ORDERS:	1.The University was not entitled to refuse to continue to deal with Mr McGuirk’s application; 2.The University is deemed to have made a determination not to provide Mr McGuirk with access to the documents that he was seeking under Parts 1, 2 and 4 of his application; 3.The matter is to be listed for a further planning meeting at the earliest convenient date.

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 Act”). By way of an application dated 21 January 2005 Mr McGuirk sought the following documents:

1. Volume 2 of the UNSW Annual Reports for 2001, 2002 and 2003.

2. Commentary on the 'MGI Technology Assurance Service Report' of April 2003 prepared by UNSW management and provided to the NSW Ombudsman in August/September 2003.

3. Copies of all referrals by UNSW to the NSW Auditor General, the Independent Commission Against Corruption, and the NSW Ombudsman during 2003.

4. Copies of correspondence with the Crown Solicitor's Office (CSO) in regard to the cost of providing material subpoenaed by the CSO in regard to the McGuirk v Niland & Ors matter.

5. Copy of the St James Ethics Centre report into the handling by UNSW management of the allegations made by Dr Clare He et al. against Professor Bruce Hall. (This document was provided to the Chancellor of UNSW in December 2004.)

2 The preliminary issues before the Tribunal are whether or not the University was entitled, when dealing with an application for an internal review, to require payment of an advance deposit under section 21 of the Act and entitled, under section 22 of the Act, to refuse to continue to deal with the application if the advance deposit was not paid. By agreement between the parties these matters are to be determined on the basis of the written material filed with the Tribunal. Each party has filed detailed written submissions on the issues.

Background

3 The University contends that it received Mr McGuirk’s application on 27 January 2005. If that was the case the University would have been deemed to have refused the application on 17 February 2005 ie when the 21-day period for determination of the application provided for by subsection 24(2) of the Act had elapsed. Mr McGuirk contends that he sent his application to the University by Express Post on Friday 21 January 2005 and therefore the 21-day period for determination of the application elapsed on Monday 14 February 2005.

4 The actual date on which the University received the application is a matter for evidence. Mr McGuirk has provided a statement in relation to the time and method by which he posted the application but the University has not provided evidence as to the date it was received. In the circumstances, given that it was sent by Express Post, I accept that the 21-day period for determination of the application elapsed on Monday 14 February 2005. In any event, the University has acted on the basis that the internal review application was validly made and made a determination in response to the application for an internal review. Mr McGuirk then acted in response to the determination. In my view, it would not now be open to the University to assert that the internal review application was invalid.

5 By a document dated 15 February 2005 Mr McGuirk applied for an internal review of the deemed refusal of his application dated 21 January 2005. By virtue of subsection 34(6) of the Act the University would have been deemed to have refused the internal review application if it was unanswered by 2 March 2005 ie 14 days after it was received.

6 On 1 March 2005, the University made a determination in response to the application for an internal review. That determination was to require Mr McGuirk to pay an advance deposit. The sum required was $2,430.00. The University advised Mr McGuirk that it could refuse to continue to deal with an application where an advance deposit is not paid within the time allowed. The time allowed was specified to expire on 15 March 2005.

7 On 4 March 2005 Mr McGuirk requested a breakdown of the $2,430.00 to indicate how much was being required in respect of each of the five parts of his application. The University provided the breakdown by letter dated 17 March 2005. That letter also extended until 31 March 2005 the time allowed tor Mr McGuirk to pay the advance deposit.

8 The breakdown of the advance deposits requested by the University were as follows:

Part 1 - Volume 2 of UNSW Annual Reports $7.50

Part 2 - Commentary on MGI Report $37.50

Part 3 - Referrals to ICAC, Ombudsman, Audit Office $2,272.50

Part 4 - Correspondence with CSO re subpoena costs $30.00

Part 5 - St James Ethics Centre Report re Hall Matter $82.50

9 On 24 March 2005 Mr McGuirk applied to this Tribunal for external review of the University's decision in respect of Part 5 of his application, that part seeking access to the St James Ethics Centre report. That application was the subject of a separate proceeding in this Tribunal determined on 13 April 2005.

10 By hand-delivered letter to the University dated 31 March 2005, Mr McGuirk pressed Parts 1, 2 and 4 of his application for access and he provided a cheque in the amount of $75.00, being the amount of the advance deposit which related to Parts 1, 2 and 4 of his application.

11 Mr McGuirk also made it clear that he contested the validity of the requirement to pay the $75.00 or an advance deposit that related to Part 3 of his application for access.

12 Mr McGuirk contends that, in accordance with section 34(6) of the Act, the University was obliged to determine Parts 1, 2 and 4 of his application as he had made the payment of the advance deposit that the University had requested, within the time that the University had allowed. He further contends the University was obliged to determine the application no later than 14 April 2005.

13 By a letter to the University dated 17 April 2005, Mr McGuirk contended that the law prevented the University from requiring an advance deposit in this case. This contention was based on a decision I made on 13 April 2005 in relation to the St James Ethics Centre report matter. Mr McGuirk requested the immediate return of the $75.00 he had paid and the immediate release of all the documents to which he had sought access.

14 The University acceded to Mr McGuirk's request for the return of $75.00 and by letter dated 5 May 2005 it enclosed a refund in that amount. The University’s letter of 5 May 2005 also advised Mr McGuirk of the University's decision to refuse to continue to deal with the internal review application on the basis that Mr McGuirk had declined to pay an amount by way of advance deposit.

The University’s contentions

15 The University submits that Division 1 of Part 3 of the Act provides for a series of discrete steps to be taken in sequence, although not every step must be taken. The process begins with an application for access pursuant to section 17. Paragraph 17(c) provides for the payment of an application fee. Sections 18 to 20 then ensure that an application is handled by an appropriate person and agency and cannot be ignored. Section 21 allows an agency to require an applicant to pay an amount, by way of advance deposit, if the agency considers that the costs to the agency of dealing with the application are likely to exceed the amount of the application fee. Section 22 of the Act permits an agency to refuse to continue dealing with an application if an advance deposit is not paid as required. Subsection 22(6) provides that such a refusal triggers the rights of both internal and external review.

16 Section 24 requires that the application be determined after consideration of the application by the agency. Subsection 24(3) provides that section 24 does not apply if the agency has declined to deal with the application pursuant to section 22. If section 24 applies, the agency must determine (a) whether or not access is to be given, (b) if access is to be given, the amount of ````any charge payable in respect of the giving of access, and (c) any charge payable for dealing with the application.

17 The University contends that for present purposes, it is important to note that Division 1 of Part 3 of the Act provides for three distinct types of payment to be made by an applicant to an agency. Subsection 21(1) provides tor the payment of an 'amount, by way of advance deposit'; paragraph 24(1)(b) provides for the payment of 'any charge payable in respect of the giving of access', and paragraph 24(1)(c) provides for the payment of 'any charge payable for dealing with the application'.

18 The University further contends that the first of these payments arises before the agency deals with the application; the latter two arise after the agency has dealt with the application and made its decisions.

19 Division 3 of Part 3 of the Act provides for the internal review of a determination. That Division contains just a single provision - section 34. Subsection 34(4) provides that an application under this section ‘shall be dealt with in accordance with this Part as if it were an application under section 17’.

20 The University contends that as an agency is required, and entitled, to deal with an application under section 17 in accordance with the provisions of Division 1 of Part 3, it follows that all the other various provisions of Division 1 of Part 3 are also applicable to an application for internal review. The University concedes that this is subject to the two exceptions set out in subsections 34(5) and 34(6) ie the application is not to be dealt with by the person who dealt with the original application and the time limit is 14 days and not 21 days.

21 In particular, the University contends that upon an application for internal review an agency is entitled to require payment of an advance deposit in accordance with section 21 and is entitled, in accordance with section 22, to refuse to proceed further with the application if the advance deposit is not paid. The University further contends that there is no provision in the Act or elsewhere which provides that the general rule contained in subsection 34(4) is subject to an exception such that sections 21 and 22 do not apply to an internal review.

22 The University argues that clause 5 of the Freedom of Information (Fees and Charges) Order 1989 ('the Order') does not operate to prevent it from requiring payment of an advance deposit. It says that the Order does not apply to an advance deposit required pursuant to section 21 of the Act.

Mr McGuirk's contentions

23 Mr McGuirk argues that the Act does not provide for agencies to request advance deposits in respect of internal review applications made in accordance with section 34 of the Act. This is the case whether the original determination was an actual determination in accordance with section 24(1) of the Act, or a deemed determination in accordance with section 24(2) of the Act. He submits that therefore any request by an agency for an advance deposit in respect of an internal review represents a breach of the Act.

24 The thrust of Mr McGuirk’s submission is that it is contrary to the intention of the legislature, as set out in section 5(3) of the Act, that the Act is to be "interpreted and applied so as to further the objects of the Act, and discretions exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information ".

25 He points to the FOI Procedure Manual Third Edition 1994 (“the Procedure Manual”), issued by the NSW Premier's Department as providing support for his submission. He also points to the FOI Policies and Guidelines Second Edition issued by the NSW Ombudsman as emphasising the fundamental principles underlying the Act, and the manner in which it is to be interpreted. Sections 1.2.4 and 1.2.5 of these Guidelines state:

“1.2.4 The intention of the Parliament that access be granted to as much information as possible is clearly indicated in the Act as being:
“(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.” (emphasis added) (section 5(3)).

1.2.5 In interpreting the FOI Act it is relevant to note the provisions of section 33 of the Interpretation Act 1987 which provides that:
“In the interpretation of a provision of an Act . . . , a construction that would promote the purpose or object underlying the Act . . . shall be preferred to a construction that would not promote that purpose or object.”

26 Mr McGuirk further argues that clause 5 of the Order explicitly prohibits the imposition of charges for the giving of access to a document or for dealing with an application under section 34 of the Act. Clause 5 provides in part:

“Charges to be imposed

(1) The charges -

(a) for the giving of access to a document (being a charge determined under section 24 (b) of the Act); and

(b) for dealing with an application (being a charge under section 24 (c) of the Act),

are to be calculated on the basis of an hourly rate of $30 per hour.

(2) Such a charge is not to be imposed in respect of -

(a) ...

(b) any application under section 34 of the Act.”

27 Section 4 of the Order provides:

“Fees to be imposed
4.(1) An application fee under section 17 or 36 of the Act is to be not less than $20.00 and not more than $30.00.

(2) An application fee under section 34 of the Act is to be not less than $20.00 and not more than $40.00.”

28 Mr McGuirk contends that while the Order makes explicit provision for the imposition of an application fee (of not less than $20.00 and not more than $40.00) in respect of applications under section 34 of the Act, it explicitly prohibits the imposition of charges for the giving of access to a document or for dealing with an application under this same section.

29 He says that the advance deposits referred to in section 21 of the Act relate to the costs that are anticipated to be incurred by an agency in dealing with an application made in accordance with section 17 of the Act. An agency is not able to request advance deposits in respect of dealing with applications for internal review made in accordance with section 34 of the Act - it can only impose an application fee of not less than $20.00, and not more than $40.00.

30 He referred to the Procedure Manual as a source of guidance on the interpretation of section 34(4) of the Act. At page 97, the Procedure Manual provides:

“4.18. HOW SHALL AN AGENCY DEAL WITH AN APPLICATION FOR INTERNAL REVIEW (S.34)?

An application for an internal review of a determination shall be dealt with as if it were an original application under the relevant section (i.e. an application for access to documents under s.17).

This means that all the procedures relating to determination of applications, notices of determinations, etc (i.e. ss.16-29) apply with the following two exceptions:

(i) the time limit is 14 days not 21 calendar days. As with the initial application, an agency which fails to determine an application to review such a determination within the set period (i.e. 14 days) from when it was received by the agency shall be taken to have made a determination under s.24 refusing an application (s.34(6));

(ii) an application for internal review shall not be dealt with by the person who dealt with the original application or by a person who is subordinate to that person (s.34(5)).”

31 Mr McGuirk contends that a request for an advance deposit in respect of the costs which an agency estimates it will incur in dealing with an application is not a ‘procedure relating to the determination’ of an application which must be followed in accordance with the provisions of section 34(4) of the Act. Accordingly, he argues, section 34(4) provides no basis for an agency to charge advance deposits in respect of internal review applications. Further, he submits, the alternative interpretation would lead to the absurd situation where an agency could request advance deposits in respect of an application for internal review of a decision by an agency to charge advance deposits in respect of an initial application.

32 On 31 March. 2005 Mr McGuirk hand-delivered a letter to the University. Mr McGuirk says that it was clear from that letter that he pressed Parts 1, 2 and 4 of his application for access. He provided a cheque in the amount of $75.00, being the amount of the advance deposit that the University required in relation to Parts 1, 2 and 4 of his application. Mr McGuirk contends that the University was then obliged, in accordance with section 34(6) of the Act, to determine Parts 1, 2 and 4 of his application and that it was obliged to do so no later than 14 April 2005.

33 He further contends that, as the University did not do so, it is deemed to have made a determination not to provide him with access to the documents that he was seeking under Parts 1, 2 and 4 of his application. In a letter to the University dated 17 April 2005 Mr McGuirk requested the immediate return of the $75.00 he had paid an advance deposit and the immediate release of all the documents to which he had sought access.

34 The University subsequently refused to continue to deal with the application on the basis that an advance deposit had not been paid. Mr McGuirk was advised accordingly by letter of 5 May 2005.

35 Mr McGuirk submits that he had paid the advance deposits requested by the University in respect of Parts 1, 2 and 4 of his application within the time specified by the University. Therefore, the University, as of 14 April 2005, was already deemed to have made a determination to refuse access to the documents he was seeking. The decision to refuse to continue to deal with the application was therefore inconsistent with the provisions of the Act.

36 Mr McGuirk has also sought an order for cost in relation to this application.

Findings

37 The preliminary issues to be determined are whether or not the University was entitled, when dealing with an application for an internal review, to require payment of an advance deposit under section 21 of the Act and entitled, under section 22 of the Act, to refuse to continue to deal with the application if the advance deposit was not paid.

38 For reasons that will be apparent it is not necessary for me to determine the first of these issues. On the material before me it is clear that the University requested that Mr McGuirk pay an advance deposit in relation to his internal review application. By letter dated 17 March 2005 the University specified that the advance deposit was to be paid by 31 March 2005.

39 It is not in dispute that Mr McGuirk pressed Parts 1, 2 and 4 of his application for access. Nor is it in dispute that on 31 March 2005 Mr McGuirk provided a cheque for the amount of the advance deposit that the University requested in relation to Parts 1, 2 and 4 of his application. In my view, even if the University was authorised to request an advanced deposit, once Mr McGuirk had paid the advance deposit that the University had requested, the University would have been obliged to determine Parts 1, 2 and 4 of Mr McGuirk’s application. It would have been obliged to do so no later than 14 April 2005.

40 It follows, in my view, that even if there was power under the Act for the University to request an advance deposit when dealing with an application for an internal review, the University had no authority to refuse to deal with Mr McGuirk’s application on the basis of failure to pay an advance deposit after 31 March 2005. Given that the University has not disputed that Mr McGuirk paid the advanced deposit as requested, I am at a loss to understand why the University has adopted the approach it has in this matter.

41 It is common ground that on 17 April 2005 Mr McGuirk requested a refund of the amount he had paid as an advanced deposit. However, in my view this has no significance in the circumstances of this matter because at that time the University was deemed to have made a determination not to provide Mr McGuirk with access to the documents that he was seeking under Parts 1, 2 and 4 of his application.

42 Having formed this view, I need not determine the issue of whether or not the University was entitled, when dealing with an application for an internal review, to require payment of an advance deposit under section 21 of the Act. I note however that I have previously expressed the view that section 21 of the Act operates only in relation to the original application, not in relation to an internal review application. It is my view that 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 Act I do not think that agencies have that power.

43 I agree with Mr McGuirk’s submission that the alternative interpretation could lead to the absurd situation where an agency could request advance deposits in respect of an application for internal review of a decision by an agency to charge advance deposits in respect of an initial application.

44 In the circumstances of this matter I find that the University was not entitled to refuse to continue to deal with Mr McGuirk’s application and is deemed to have made a determination not to provide Mr McGuirk with access to the documents that he was seeking under Parts 1, 2 and 4 of his application.

45 Mr McGuirk has lodged an application with the Tribunal for review of that determination. The matter should therefore be listed for a further planning meeting to allow a timetable to be set to address the substantive issues.

46 Mr McGuirk’s application for costs in relation to this application will be considered as part of the substantive matter.

Orders

1. The University was not entitled to refuse to continue to deal with Mr McGuirk’s application.

2. The University is deemed to have made a determination not to provide Mr McGuirk with access to the documents that he was seeking under Parts 1, 2 and 4 of his application.

3. The matter is to be listed for a further planning meeting at the earliest convenient date.