McGuirk v University of New South Wales
[2006] NSWADT 258
•01/09/2006
Set aside by Appeal:
CITATION: McGuirk v University of New South Wales [2006] NSWADT 258 DIVISION: General Division PARTIES: APPLICANT
Gerard Michael McGuirk
RESPONDENT
University of New South WalesFILE NUMBER: 053171 HEARING DATES: 2/03/2006 SUBMISSIONS CLOSED: 03/02/2006
DATE OF DECISION:
09/01/2006BEFORE: Montgomery S - Judicial Member CATCHWORDS: 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: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information (Fees and Charges) Order 1989
Freedom of Information Act 1989CASES CITED: Cianfrano v NSW Department of Commerce [2004] NSWADT 134
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649
McGuirk v University of New South Wales [2006] NSWADT 81
McGuirk v University of New South Wales [2006] NSWADT 256REPRESENTATION: APPLICANT
RESPONDENT
In person
P Singleton, BarristerORDERS: 1. The decisions under review is set aside; 2. Mr McGuirk is to pay an advance deposit of $270 to the University within 14 days of these orders; 3. The matter is to be listed for further hearing on a date to be fixed by the Registry
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”). By way of an application 8 March 2005Mr McGuirk sought:
- Copies of all correspondence between the University of New South Wales, the Crown Solicitor's Office and/or Mr Ian Bourke and/or Mr Paul Roberts SC in regard to the legal costs, and the payment of these legal cost, associated with the defence of Professors John Niland, John Ingleson, Roger Layton, Greg Whittred and Mr Neil Morris in the McGuirk v Niland & Ors matter concluded m the Downing Street Local Court on Friday 11 February 2005.
2 The University’s FOI Officer requested payment of an advance deposit in the amount of $660. Mr McGuirk responded that he regarded the amount requested by the University as unreasonable and excessive and an attempt by the University to avoid its obligations under the FOI Act. He also gave notice that unless he received the documents sought he would seek an internal review of the determination.
3 The University’s FOI Officer subsequently advised Mr McGuirk that, as the University had not received the advance deposit requested within the specified time period, the University had decided to refuse to continue to deal with his application.
4 Mr McGuirk submitted an application for an internal review of the determination refusing to continue to deal with his application. Mr Michael Milne, Executive Officer to the Deputy Vice-Chancellor (Academic) purported to determine the internal review application, however this determination was not completed within the 14-day period allowed by section 34(6) of the FOI Act. Mr Milne concluded that the request for payment of $660.00 as an advance deposit was reasonable in the circumstances.
5 Mr McGuirk then brought an application to the Tribunal for a review of the University’s determination.
Applicable legislation
6 Section 21 of the FOI Act provides in part:
- 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.
(2) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the sum of the application fee and of any advance deposits paid in respect of the application, the agency may request the applicant to pay to it such amount, by way of further advance deposit, as the agency may determine.
(3) The amount of an advance deposit requested by an agency in respect of an application shall not be such that the sum of the application fee, the advance deposit and any further advance deposits paid in respect of the application exceeds such amount as, in the opinion of the agency, will be necessary to cover the costs of dealing with the application.
7 Section 22 of the FOI Act provides in part:
- 22 Agencies may refuse to continue to deal with applications if advance deposit not paid
(3) An agency may refuse to continue dealing with an 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.
…
(6) A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly.
8 Section 67 of the FOI Act provides in part:
- 67 Fees and charges
(1) The Minister may, by order published in the Gazette, establish guidelines in relation to the imposition, collection, remittal and waiver of fees and charges under this Act.
…
(3) An agency or Minister, in determining the amount of any fee or charge under this Act, shall not contravene any guidelines in force under this section.
(3A) The guidelines in force under this section are to be taken into account:
(a) by the Tribunal when reviewing a determination described in section 53 (3) (a) (iv) or (v)…
9 The Freedom of Information (Fees and Charges) Order 1989 relates to the “charges” to be imposed under section 24(b) and section 24(c) for “dealing with” an application and for “giving access” to a document. Clause 5 states that:
- (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 determined 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) the first 20 hours during which -
- (i) an application under section 17 or 36 of the Act (being an application made by a natural person in respect of documents relating to his or her personal affairs) is dealt with; or
(ii) access to a document the subject of such an application is give; or
(3) Such a charge is to be calculated on the time spent by the agency’s or Minister’s staff in actually dealing with the application or giving access to the document, calculated to the nearest quarter of an hour.
10 The issue for determination is whether the determination by the University to refuse to continue to deal with Mr McGuirk’s application was the correct and preferable decision. This necessarily requires a finding as to whether the University was entitled to request an advance deposit and if so, how much.
Mr McGuirk’s case
11 Mr McGuirk filed a document comprising some 37 pages plus numerous annexures. This document contains a mixture of submissions and what Mr McGuirk asserts to be facts. The University objected to the form of this document and also objected to much of the content of the document on the basis of relevance. I agreed with the University’s objections. The document is admitted as submissions and the assertions of fact subject to weight. The University denies all Mr McGuirk’s assertions that it engaged in corrupt conduct or that it lacked good faith or acted contrary to the public interest.
12 Mr McGuirk contends that the University’s request for an advance deposit was invalid and improper and in breach of the government policy to which the University is required to give effect. This is essentially the same argument that Mr McGuirk has run in other applications before this Tribunal.
13 In McGuirk v University of New South Wales [2006] NSWADT 256 I considered the meaning of the term ‘deposit’ in dealing with the issue of whether the amount sought by the University was in fact a deposit. I do not propose to revisit the issue here.
14 The essence of Mr McGuirk’s argument is set out in his submissions as follows:
- 114. In requesting advance deposits in regard to this application, and in persisting in having the advance deposits matter determined by the Tribunal, at significant cost to the NSW public purse rather than proceeding to make a determination of the original FOI Application, the University is acting ultra vires the Freedom of Information Act 1989 ("the Act").
115. Officers of the University, in this matter, and in other related matters which are already, or are likely to come, before this Tribunal, are failing to exercise in good faith the functions conferred or imposed on them by the Act as they are required to do under common law and the terms of Section 58 of the Act as public servants of the State of New South Wales.
116. The request by the University for an advance deposit of $660, now reduced following a Planning Meeting before the Tribunal to $270, is inconsistent with the provisions in the Act, the Freedom of Information (Fees and Charges) Order 1989 and the FOI Procedure Manual Third Edition 1994 issued by the Premier's Department.
15 He argues that the University has a discretion to charge fees but the discretion is to be exercised as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information: section 5(3)(b) of the FOI Act. He contends that the University is using the provisions of section 21 of the FOI Act to frustrate that fundamental object of the Act. He says that the University chose to use the discretion to request advance deposits as a means to frustrate his legally enforceable right to access to documents.
16 He points to the FOI Procedure Manual Third Edition 1994 (“the Procedure Manual”), issued by the NSW Premier's Department which emphasises the fundamental principles underlying the FOI Act, and the manner in which it is to be interpreted. Section 2.14.6 of the Procedure Manual states in part:
- 2.14.6. Advance deposits
Advance deposits of amounts up to but not exceeding the estimated total cost of processing an application may be required. The Act allows the agency or Minister to nominate the amount of any such deposit. It is expected, however, that advance deposits will be used only with large scale requests involving significant charges. [policy]
17 Section 64 of the Administrative Decisions Tribunal Act 1997 requires that the Tribunal give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. Mr McGuirk contends that his request was not a ‘large scale request’ and did not involve ‘significant charges’.
18 While it is by no means clear from his submissions, I understand that Mr McGuirk contends that his application meets the tests for public interest described in the Premier's FOI Manual, and he is therefore eligible for a 50% reduction in fees and charges.
19 Mr McGuirk asserts that his application has an underlying purpose of attempting to expose maladministration and serious systemic corruption at the University. He argues that he is using the FOI Act for a proper purpose – i.e. to bring transparency and accountability to the University.
20 He refers to the provisions in the Freedom of Information (Fees and Charges) Order 1989 in respect of applications for information which it is in the public interest to make available. Section 6(e) of the Order states as follows:
- Reduction of fees and charges
6. The fees and charges payable by
…
(e) an applicant whose application relates to information that it is in the public interest to make available;
are to be half the fees and charges that would otherwise be payable in respect of the application.
21 Mr McGuirk referred to a number of decisions that have dealt with the issue of advance deposits but notes that none of those cases addressed the question of whether the agency requesting advance deposits was acting for a proper purpose and in good faith. In Cianfrano v NSW Department of Commerce [2004] NSWADT 134 Robinson JM considered the question of what constitutes an 'unreasonable' advance deposit. At paragraph 54 of his decision he stated:
- 54 As to the question of what constitutes an “unreasonable” advance deposit for the purposes of section 53(3)(a)(iv) of the FOI Act and what is the “lowest reasonable cost” in section 5(3)(b) of the FOI Act, I consider that what is unreasonable must be considered in the circumstances of the particular case as a whole and with a balancing by the Tribunal of the respective interests at stake (cf: Humane Society International Inc.v National Parks & Wildlife Service [2000] NSWADT 133 at [21] (in a different context)).
22 Mr McGuirk asserts that Mr Milne has a poor understanding of the FOI Act and of the policies and factors that need to be taken into account in exercising the discretion provided by the Act. He argues that Mr Milne has been poorly advised and therefore little weight can be given to his evidence. He submits that the Tribunal must make a finding of fact that the University has not complied with the applicable Government policy and has exercised its discretion for improper purpose. He says that the correct and preferable decision is that the University is to determine the application.
The University’s case
23 The argument presented on behalf of the University is essentially the same as that presented in McGuirk v University of New South Wales [2006] NSWADT 81 and McGuirk v University of New South Wales [2006] NSWADT 256. Mr Singleton submits that the FOI Procedure Manual can be interpreted as policy for the purposes of section 64 of the ADT Act but that it is to be seen as a guideline and is not binding. The University contends that the use of the words “It is expected” in section 2.14.6 of the Procedure Manual makes it clear that it is a flexible guideline.
24 The University contends that it has discretion to request an advance deposit. While it concedes that the use of an advance deposit request in order to suppress documents would be a factor that could be taken into account by the Tribunal, in this matter there is no evidence to suggest that the request was used to suppress documents. The University asserts that the amount that has been requested from Mr McGuirk reflects the estimate of the time it would require to determine his application.
25 Mr Singleton submits that this application should not be viewed in isolation but as one a many brought by Mr McGuirk. He says that the policy should not be applied with full vigour even if this application is not a large scale one.
26 The University relies on two statements of Mr Milne. Mr Milne gave evidence at the hearing and was subjected to cross-examination by Mr McGuirk. Mr Singleton submits that Mr Milne’s evidence has not been challenged in any meaningful way and must be accepted.
27 Mr Milne’s first statement sets out the process that would be followed in dealing with Mr McGuirk’s application and provides a re-estimates the time that would be involved. He estimates that an advance deposit of $270 should be requested based on an additional 9 hours work on a charge rate of $30 per hour.
28 Mr Milne’s second statement is a duplicate of one filed in McGuirk v University of New South Wales [2006] NSWADT 81. In his second statement he refers to the history of FOI applications made by Mr McGuirk and the increased workload created by those applications. The University has estimated that over the past year approximately 70% of the work that the University does pursuant to the FOI Act is generated by Mr McGuirk. As a result of the increase in work under the FOI Act, the University has had to redirect a second member of staff to assist the Head of the Policy Management Unit to deal with applications under the FOI Act. The most significant single cause of the need to retain this extra staff member has been the applications made by Mr McGuirk.
29 Mr Singleton submits that a claim that an exercise of power was ultra vires is a ‘judicial review’ claim, which cannot arise for determination by the Tribunal. Similarly, a claim that a power was exercised for an improper purpose is a claim properly raised in judicial review proceedings.
30 The University asserts that an advance deposit is payable. Mr Singleton submits that if the Tribunal finds that no advance deposit is payable the matter should be remitted to the University to deal with the application. If an advance deposit is payable, the Tribunal should determine the amount payable and the time in which it is to be paid. The matter should not be remitted until the amount is paid. If the amount is not paid within the specified time, it will then be necessary to determine whether to refuse to continue to deal with the application.
Findings
31 Pursuant to section 22(6) of the FOI Act the Tribunal has jurisdiction with respect to a refusal to continue to deal with an application where payment of an advance deposit has been requested and not paid within the period of time specified in the request. The Tribunal can also determine whether a requested advance deposit is “unreasonable” for the purposes of section 53(3)(a)(iv) of the FOI Act.
32 In my view, the meaning of the term ‘deposit’ should be taken to include a sum of the kind requested by the University in relation to this application.
33 This application was focused and narrow. I do not consider that it is a ‘large scale request’. I do not agree with Mr McGuirk’s assertions with respect to Mr Milne understanding of the applicable legislation and procedures to be adopted under the FOI Act. I accept Mr Milne’s evidence with respect to the process that would be followed in dealing with Mr McGuirk’s application and his estimates of the time that would be involved.
34 I also accept Mr Milne’s evidence with respect to the burden placed on the University by the various applications that Mr McGuirk has made under the FOI Act. I have previously stated my view that this is a relevant consideration in determining how to exercise the discretion given under section 21 of the FOI Act. I remain of that view.
35 I agree that section 2.14.6 of the Procedure Manual is a relevant Government policy and that the Tribunal must generally give effect to any relevant Government policy. However, it need not do so if the policy is contrary to law or produces an unjust decision in the circumstances of the case. In my view, consideration of the circumstances of the case requires consideration of fact that this is not an isolated application by Mr McGuirk. It also requires consideration of the burden that Mr McGuirk’s applications have placed on the University. When those factors are taken into account, a decision that the University could not request an advance deposit would be an unjust decision. This is consistent with the view expressed by Robinson JM in Cianfrano v NSW Department of Commerce where he noted that “what is unreasonable must be considered in the circumstances of the particular case as a whole and with a balancing by the Tribunal of the respective interests at stake”.
36 I note that Mr McGuirk has asserted that the University is attempting to use a request for payment of an advance deposit for the purposes of frustrating the objects of the FOI Act. An improper purpose is not to be inferred lightly. It is for Mr McGuirk to establish a proper evidentiary basis for such a claim. If the purpose of a decision has to be ascertained by inference, a presumption of regularity operates: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 per Gaudron J at 671-2.
37 I agree that a claim that an exercise of power was ultra vires cannot arise for determination by the Tribunal. However, if the evidence tended to show that to be the case it would be a factor that could be taken into account in determining the correct and preferable decision. However, in this matter, Mr McGuirk has done no more than suggest that the University is attempting to use a request for payment of an advance deposit for the purposes of frustrating the objects of the FOI Act. I cannot be satisfied to the requisite standard that this was the case.
38 It is my view, that University was entitled to request the payment of an advance deposit, however the amount originally requested was unreasonable. Accordingly, the decision to refuse to continue to deal with the application until that amount was paid cannot be the correct and preferable decision. The amount payable is that calculated by Mr Milne in his first statement i.e. $270.
39 Mr McGuirk contends that his application meets the tests for public interest described in the Premier's FOI Manual, and therefore he is eligible for a 50% reduction in fees and charges. I do not agree that any general public interest in the University’s conduct being made known to the people of the State of New South Wales is sufficient for this purpose. In order to be eligible for a reduction in fees and charges he would need to at least present a prime facie case that the application was directed towards exposing maladministration and corruption at the University and he has not done so. That being the case, I am not satisfied that the 50% reduction in the charge is warranted.
40 It follows that the University’s determination is not the correct and preferable decision as it required payment of an amount of $660. The correct and preferable decision is that Mr McGuirk is to pay an advance deposit of $270. The discretion under section 22 cannot be exercised until Mr McGuirk is given an opportunity to pay that amount. I consider that 14 days is a reasonable period to allow him to make the payment.
Order
- 1. The decisions under review is set aside.
2. Mr McGuirk is to pay an advance deposit of $270 to the University within 14 days of these orders.
3. The matter is to be listed for further hearing on a date to be fixed by the Registry.
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