Miriani v Commissioner of Police, New South Wales Police (No 2)

[2006] NSWADT 134

CITATION:	Miriani v Commissioner of Police, New South Wales Police (No 2) [2006] NSWADT 134
DIVISION:	General Division
PARTIES:	APPLICANT Joe Miriani RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	043292
HEARING DATES:	30/11/05
SUBMISSIONS CLOSED:	11/30/2005
DATE OF DECISION:	05/04/2006
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, NSW Police
ORDERS:	1. Respondent’s objection to jurisdiction dismissed; 2. Matter to be listed for further planning meeting.

1 By letter dated 7 May 2004 (received 13 May 2004) the applicant made an application under the Freedom of Information Act 1989 (FOI Act) addressed to the respondent agency for access to be given to various documents. The application was divided into two parts. The agency’s response to the application was unsatisfactory to the applicant. Consequently the applicant applied for review of the agency’s decisions by the Tribunal.

2 The dispute between the applicant and the agency as it relates to the first part of the access application is now resolved. The Tribunal dealt in a decision delivered on 9 August 2005 with the one issue that had remained alive between the parties following a number of planning meetings – sufficiency of search – and found that the agency had made a sufficient search in responding to the first part of the application: Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 (9 August 2006) (the first decision).

The Second Part of the Application

3 This decision deals with the dispute between the parties as it relates to the second part of the access application. In that part of the application the applicant stated:

‘2. Please provide a copy of the following documents (my emphasis):

Information Technology Policies

1. COPS Audit User Guide

2. COPS Statewide Audit User Guide

Operational Policing

3. COPS Audit User Guide

4. DVLO – Guidelines for Using COPS

5. Incident and Emergency SOPs

6. Investigation Service SOPs

7. Investigation SOP

8. Investigation Guide to Physical Evidence

9. Public Order Management Policy & SOPs

10. Policy for Creation, Classification etc of COPS Reports

11. Warrants – Trouble Shooting Guide

12. Guidelines for the Management and Investigation of Critical Incidents

Conduct and Ethics Policies

13. Internal Police Complaints – Guidelines for Commanders and Managers

14. Professional Standards Action Plan

Please do not hesitate to phone me if you require any additional information or assistance regarding the identification of the above-mentioned documents (my emphasis).’

Jurisdiction

4 In its submissions filed 23 March 2005 the agency challenged the Tribunal’s jurisdiction in relation to this part of the access application. In the applicant’s submissions in reply filed on 2 May 2005 the applicant addressed the objection. At a planning meeting held subsequently to the first decision the agency indicated that it would not be filing any further submissions but relying on its submissions of 23 March 2005. The respondent also indicated that he would rely on his submissions filed 3 May 2005.

5 The agency argues that its response to the second part of the access application did not attract the jurisdiction of the Tribunal as it was not engaged in making a determination of the kind to which s 24 (and ultimately s 53) applies. Its position is that the second part of the application required a response under the provisions of Part 2 of the FOI Act. The provisions dealing with the right of access to documents, the power to refuse, the exemptions from access and rights of review of agency determinations belong to Part 3 of the Act.

6 I will turn first to Part 2 of the Act.

7 Part 2 of the Act is headed ‘Publication of certain information’. Agencies are required to give the community information regarding their internal arrangements, operations and functions, and explain the way their record-keeping system is organised. In particular, they are obliged to publish regularly two documents for the information of the community – a ‘statement of affairs’ and a ‘summary of affairs’.

8 The ‘summary of affairs’ must list the ‘policy documents’ held by the agency: s 14(3)(a). ‘Policy documents’ is defined in s 6, as follows:

‘ policy document , in relation to an agency, means:

(a) a document containing interpretations, rules, guidelines, statements of policy, practices or precedents, or

(b) a document containing particulars of any administrative scheme, or

(c) a document containing a statement of the manner, or intended manner, of administration of any legislative instrument or administrative scheme, or

(d) a document describing the procedures to be followed in investigating any contravention or possible contravention of any legislative instrument or administrative scheme, or

(e) any other document of a similar kind,

that is used by the agency in connection with the exercise of such of its functions as affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject, but does not include a legislative instrument.’

9 As to the inclusion of exempt material in the contents of the statement of affairs and the summary of affairs, s 14(4) provides:

‘(4) Nothing in this section requires the publication of information that is of such a nature that its inclusion in a document would cause the document to be an exempt document.’

10 It is accepted that all the documents referred to by the applicant in his application received 13 May 2004 were ‘policy documents’ meeting the definition found in s 6 of the Act, and listed by the agency in its then-current summary of affairs. (In the course of preparing these reasons the Tribunal asked the agency to supply the then-current statement of affairs (see material filed 18 April 2006).)

11 Section 15 imposes obligations on agencies in relation to making available their statements of affairs, summaries of affairs, and listed policy documents.

12 Section 15 provides:

‘ 15 Availability of certain documents

(1) An agency shall cause copies of:

(a) its most recent statement of affairs, and

(b) its most recent summary of affairs, and

(c) each of its policy documents,

to be made available for inspection and purchase by members of the public.

(2) Nothing in this section prevents an agency from deleting from the copies of any policy document any information that is of such a nature that its inclusion in the document would cause the document to be an exempt document otherwise than by virtue of clause 9 or 10 of Schedule 1.

(3) A person is not to be subjected to any prejudice because of the application of the provisions of an agency’s policy document (other than such of those provisions as the agency is permitted to delete from the copies of the document that are available for inspection and purchase by members of the public) to any act or omission of the person if, at the time of the act or omission:

(a) the policy document was not available for inspection and purchase, and

(b) the person was not aware of those provisions, and

(c) the person could lawfully have avoided the prejudice had the person been aware of those provisions.

(4) During the period of 12 months following the commencement of this section:

(a) an agency is required to comply with subsection (1) only to such extent as is reasonably practicable, and

(b) subsection (3) does not have effect.’

13 Official guidance on the operation of these provisions is given by the Premier’s Department FOI Procedure Manual (3rd ed 1994) 31-57. There are two passages that bear on the issues raised by this case. The Manual noted that documents should be provided at the lowest reasonable cost and that they could ‘of course, be made available free of charge’. If a charge is to levied, the Manual suggested that ‘a cost of no more than $5 for either the Statement or the Summary would seem reasonable at this time’ (at p 33). At p 44 in discussing the relationship between these provisions and the general access regime found in Part 3, the Manual said in bold type:

‘An agency is NOT to require members of the public to submit an FOI application to obtain a copy of the agency’s Statement or Summary of Affairs or policy documents.’

14 (In its submissions to the Tribunal, the agency seeks to employ this statement to support the argument that requests for policy documents are not subject to the provisions of Part 3, as they are not to be the subject of access applications made pursuant to s 17. It is plain, read in context, that the Manual does not go that far. It simply discourages agencies from utilising formal FOI access procedures as the vehicle for dealing with requests for policy documents.)

15 The key provisions relating to the making of formal applications for access to documents appear in Part 3 of the Act which is headed ‘Access to Documents’.

16 Section 16 provides:

‘ 16 Right of access to agencies’ documents

(1) A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.

(2) (Repealed)’

17 Section 17 lays down the access application procedure:

‘ 17 Applications for access to agencies’ documents

An application for access to an agency’s document:

(a) shall be in writing, and

(b) shall specify that it is made under this Act, and

(c) shall be accompanied by such application fee as the agency may determine, and

(d) shall contain such information as is reasonably necessary to enable the document to be identified, and

(e) shall specify an address in Australia to which notices under this Act should be sent, and

(f) shall be lodged at an office of the agency,

and may request that access to the document be given in a particular form referred to in section 27.’

18 There is no dispute that the applicant’s application dated 7 May 2004 and received 13 May 2004 conformed on its face to the requirements of s 17.

19 Section 24, which the agency submits was not applicable to the second part of the application, provides relevantly:

‘ 24 Determination of applications

(1) After considering an application for access to a document, an agency shall determine:

(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given—any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.

(2A) Nothing in subsection (2) prevents an agency from determining that access should be given to the document even though more than 21 days have elapsed after the application was received by the agency. Sections 64 and 65 apply to access given pursuant to such a determination in the same way as they apply to access given pursuant to any other determination under this Act.

(3) …’

20 The agency’s power to refuse access is conferred by s 25 which provides relevantly:

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

(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or

(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or

(c) if it is a document that is usually available for purchase, or

(d) if it is a document that genuinely forms part of the library material held by the agency.

(e) (Repealed)’

Agency Response to Second Part of Application

21 The agency’s FOI co-ordinator, Sgt Maddox, replied to the access application. He described his letter as a ‘determination’. The reply is dated 26 May 2004, and said materially:

‘In relation to point (ii) you have requested that this agency produce fourteen (14) policy documents. In accordance with section 15 of the Act, these documents will be available for inspection and purchase.

On behalf of the Commissioner of Police, I would request the advance payment of $210.00 dollars [sic] being equal to $15.00 per policy document.

I also take this opportunity to make you aware that in accordance with Section 15(2) of the Act, the policy documents may be edited to remove any information which may be considered exempt in accordance with clause 9 or 10 of Schedule 1.’

22 The letter uses the term ‘advance payment’. The applicant, having regard to the contents of his reply dated 11 June 2004 (set out below), saw this as a requirement for an ‘advance deposit’ of the kind to which the provisions of Part 3 refer. Section 21 allows an agency to make such a request before it need deal substantively with an application:

‘ 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.

(4) A request for an advance deposit shall be accompanied by a notice that sets out the basis on which the amount of the deposit has been calculated.

(5) The amount of an advance deposit requested by an agency in respect of an application shall be paid to the agency within such period of time as the agency may specify in the request.

(6) The period of time between the making of a request under this section and the payment of an advance deposit in accordance with the request shall not be taken into account in calculating the period of 21 days within which the relevant application is required to be dealt with.

Internal Review

23 By letter dated 11 June 2004 the applicant purported to apply for internal review of the determination as it related to the second part of his application.

24 Section 34 provides that a person ‘who is aggrieved by a determination’ may apply in writing for review of the determination. A person is considered to be aggrieved by an application if their circumstances involve one of the situations listed in s 34(7). The principal circumstance is where ‘an agency refuses to give the applicant access to a document’ (para (i)). In this instance the applicant saw his circumstances as falling within paras (a) (iv) and (v), where it is provided:

‘(7) For the purposes of this section, a person is aggrieved by a determination:

(a) if the determination relates to an application made by the person under section 17 and is to the effect that:

…

(iv) access to a document is to be given to the applicant subject to a charge for dealing with the application, or for giving access to a document, that the applicant considers to be unreasonable, or

(v) a charge for dealing with the application is payable by the applicant, being a charge that the applicant considers to have been unreasonably incurred, or’

25 The applicant said in his letter:

‘ Review of Determination Request

I am aggrieved by the determination made by your agency on 26 May 2004 as Mark Maddox refused to give access to ‘all documents’ held by NSW Police regarding non-personal affairs. I seek therefore a review of that determination pursuant to section 34 of the Freedom of Information (FOI) Act 1989. ….

In relation to point (ii), the requests for advance deposits must be done before the making of a determination by the agency. I note that Section 4.6.6 of the Premier’s FOI Manual indicates that: ‘The period of time between the making of a request and paying an advance deposit must not be included in calculating the period of 21 calendar days in which the application must be dealt with’.

Mr Maddox failed to provide proper notification of the advance deposit within the prescribed time period. Nonetheless I consider the amount of fifteen dollars ($15) per policy document is excessive as most of the requested policy documents are contained in only half a dozen pages. I note that section 6.1.22 of the NSW Ombudsman’s FOI policies and guidelines indicates that ‘20c/A4 copy is more than reasonable charge for provision of photocopies outside the provisions of the FOI Act’.’

26 It will be seen that the applicant has two objections to the decision of Sgt Maddox recorded in the letter of 26 May 2004 – non-compliance with the ‘advance deposit’ provisions and excessive charges.

27 The agency declined to conduct an internal review. By letter dated 5 July 2004, Sgt Maddox replied:

‘As previously indicated to you, your concerns about the policy documents do not fall within the ambits of a internal review [sic] as provided by Section 34 of the Freedom of Information Act 1989 (the Act) and therefore are being dealt with separately to the internal review.

I note in your letter dated the 21 June 2004, you refer to section 6.1.22 of the NSW Ombudsman’s FOI policies and guidelines. You may be aware, that according to the NSW Ombudsman’s website, this publication is no longer in print and was published in 1997, some seven (7) years ago.

Whilst, I agree that the mentioned publication indicates that “20c / A4 copy is more than reasonable charge” I do not believe that in 2004 this charge would still be considered reasonable. In my experience in dealing with Courts and other agencies, “40c / A4 copy” is more appropriate in 2004.

However, in order for this particular matter to proceed to finalisation, I have the authority to reduce that amount. I have looked more closely at the documents that you seek, and I estimate that there will be over 530 pages which will have to be printed/photocopied. It will then be necessary to check each document in accordance with Section 15(2) of the Act to ensure that no exempt material is inadvertently released. Therefore, on behalf of the Commissioner of Police, I request an advance payment of $161.10 (537 pages @ $0.30 cents per page) before proceeding further with this matter. Payment will need to be either cheque or money order only.”

Right to Apply for External Review

28 The right to apply for external review is governed by s 53, which provides relevantly

‘ 53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency … under section 24 … may apply to the Tribunal for a review of the determination.

(2) A review application may not be made:

(a) while the determination is subject to a right of review under section 34 …, or

(b) if the determination has been subject to a right of review under section 34 … but no application for such a review of the determination was made while it was subject to that right, or

(c) … .

(3) For the purposes of this section, a person is aggrieved by a determination:

(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or …—if the determination is to the effect that:

(i) an agency … refuses to give the person access to a document, or

(ii) access to a document is to be given to the person subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or

(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or

(b) …’

29 In this instance the application for external review had as its basis, from the applicant’s viewpoint, a deemed refusal (arising from failure to process the application for internal review, see s 34(6) and s 53(3)(a)(i) above, or imposition of an unreasonable charge ((a)(iv)) or imposition of an unreasonable charge for dealing with the application ((a)(v)).

Application for External Review

30 The applicant lodged his application for review with the Tribunal on 3 September 2004.

31 Following planning meetings at the Tribunal, the agency on 13 October 2004 by fax advised the applicant that it would release to him ‘free of charge’ the documents itemised numbers 4, 9, 11 and 14 of his original request.

32 This offer, in the Tribunal’s view, effectively disposed of this part of the controversy between the parties.

33 The fax then went on to say that:

‘NSW Police is prepared to grant yourself limited access to the other 10xNSW Police Policy documents sought by yourself that include: [the other documents requested are then listed, nos 1, 2, 3, 5, 6, 7, 8, 10, 12 and 13 in the original list.’

34 It continued:

‘NSW Police proposes that access to the other 10 documents will be limited on the following basis:

1. Mutually agreed time and date.

2. by yourself in a Private Viewing room at the NSW Police Headquarters, Parramatta

3. For a period of 4.5 hours – if insufficient, a further 3 hours on another day,

4. No electronic copying of the documents,

5. No electronic devices inside the viewing room, and,

6. Pen, pencil and notepad may be used.

Forwarded for your consideration.’

35 It will be seen that no claims for exemption were made.

36 The applicant replied by letter dated 28 October 2004 declining the offer.

37 There was a further letter on 4 November 2004 from the agency’s FOI officer (Sgt Maddox) dealing with the issue of deletion of exempt matter from the policy documents to be made available. The letter states:

‘The documents listed which I have determined not to release, contain material which reflects policy methodology and the processes implemented when responding to, maintaining and administering police investigations and the like.

I am of the opinion that release of the material could prejudice the effectiveness of those methods and procedures which are intended primarily to protect the safety of members of the public and their property.

In relation to items (4) (9) (11) and (14) I have chose [sic] to release documents exception [sic] for deletions that relate to the personal affairs of others. Furthermore, I have chosen not to seek any charges for the supply of these documents and I will provide them free of charge upon confirmation that you still require these documents to be produced.

Furthermore, it is our interpretation that Part 2 of the Act, [sic] is not subject to review by the Administrative Decisions Tribunal.’

Assessment

38 If the agency’s submission is correct the mechanisms found in Part 2 and 3 stand in contradistinction to each other; and Part 2 deals with categories of documents to which the Part 3 mechanism is not applicable. The issue raised is of wide systemic importance for the operation of the Act.

39 If the agency’s submission is correct, agencies are not obligated to process applications which refer to policy documents, or other documents covered by Part 2, by reference to provisions such as ss 17, 24 and 25 of Part 3.

40 The Freedom of Information legislation seeks to promote transparency in relation to government action and decision-making by conferring a right of access to documents subject to exemptions. Section 5 provides:

‘ 5 Objects

(1) The objects of this Act are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government, and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

(2) The means by which it is intended that these objects are to be achieved are:

(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by 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, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(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.

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.’

41 It will be seen in s 5(2) that three means are provided for achieving the legislation’s objectives, and they are in turn taken up in detail in Parts 2, 3 and 4 of the Act. The third method found in Part 4 (amendment of personal records) is not raised by these proceedings.

42 In the Tribunal’s view, s 16(1), creating the legally enforceable right of access, is the central provision of the Act, and there is nothing in its terms to suggest that it has other than a general application and covers any document that fits the definition of ‘agency’s documents’. The definition is a broad one (s 6): ‘agency’s document means a document that is held by the agency’. A ‘policy document’ is simply one species of agency document. On its face therefore the ‘Part 3’ procedure can be used in respect of any document of an agency as defined, including therefore a policy document.

43 Part 2 does allow for the possibility that a member of the public wanting access to a policy document could simply contact the relevant unit in the agency, and make arrangements to purchase or inspect the policy document. The agency is at liberty to impose a charge. In that regard, I note that the agency may have to demonstrate that it has an independent power to do that, as the Minister’s Guidelines issued under s 67 of the Act make no specific reference to the practice to be observed in a situation of this kind. The Minister’s Guidelines have as their premise the making of an application for access under s 17 of the Act.

44 Part 3 provides a formal procedure for procuring access to agency documents. It was used in this case.

45 The choice made can be important. Under the informal ‘Part 2’ method, the applicant would not be able to obtain a determination from the agency giving its grounds for refusing to include certain material in the policy documents made available for inspection (material claimed to be exempt). Under the ‘Part 3’ method, the applicant can obtain from the agency a formal determination that goes to the exempt material.

46 The agency’s submissions, if accepted, would have the odd consequence that an applicant could only test an agency’s claims for exemption in respect of a certain class of the agency’s documents, i.e. those not made available pursuant to ss 14 and 15. This would defeat an important accountability objective of the legislation. There is nothing in the terms of ss 14 and 15 to suggest that the rights found in Part 3 are not applicable to policy documents that are requested as part of an application made under s 17 of the Act. If this is incorrect, all an applicant would have to do to activate the agency in respect of deletions visible in documents provided by way of inspection rights given by ss 14 and 15 would be to make a specific application for access under s 17 for the exempt material.

47 The point Sgt Maddox had reached on 26 May 2004 was, in the Tribunal’s opinion, to take a decision not to proceed finally to process the request until a payment was made. He did not refer to s 21 (the advance deposit) provision but he did use the words ‘advance payment’ to describe the charge. Nor did he express the opinion required for reliance on s 21 (‘the costs to the agency of dealing with an application are likely to exceed the amount of the application fee’). Having regard to the rest of his letter (the reference to s 15) and subsequent correspondence, in the Tribunal’s opinion, he was probably purporting to impose a charge of the kind contemplated by ss 14 and 15. The approach taken seems to be inconsistent with the spirit, if not the letter of ss 14 and 15, in that those provisions clearly envisage a system whereby charging practices, at least to some degree, are known in advance to members of the public (see for example s 14(2)(d)(i), (ii) and (iii); and (3)(d)).

48 Section 25 (refusal of access), in the Tribunal’s opinion, squarely addresses the scenario that this case presents. A document may be refused on these grounds:

‘(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or

(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or

(c) if it is a document that is usually available for purchase.’

49 The presence of these grounds support the conclusion that applicants can properly lodge applications under Part 3 which related to ‘Part 2’ documents. A refusal of access, on whatever ground, is amenable to internal review (s 34(&)(a)(i)) and is, in turn amenable to external review (s 53(3)(a)(i)).

50 It is plain from s 25’s grounds for refusal that the Parliament did consider the question of how the Part 2 mechanism and the Part 3 mechanism were to interact. It was open to an agency to refuse to deal with an application if the document was available for inspection at that agency in accordance with Part 2.

51 In this case the agency never got to the point of stating a ground for refusal, but instead made a claim that could have been construed as being for Part 3 (s 21) advance deposit; though it would appear from later action and correspondence that this was recast by the agency as a request for a fee, charge or purchase price of the kind contemplated by ss 14 and 15.

Conclusion

52 In my view, the jurisdiction of the Tribunal was properly invoked at the time the applicant lodged his application for external review. The application was competent for either or both of the following reasons. On one view, the letter from the agency of 26 May 2004 constituted a request for the payment of an advance deposit pending processing. The applicant requested internal review. The request was not actioned, resulting in a deemed refusal of the access application (s 34(6)). A refusal founds the jurisdiction of the Tribunal (s 53(3)(a)(i)). The other view is that there was an outright failure by the agency to deal with the applicant’s access application in the manner required by the Act. It relied on an objection which was not open to it to take. Consequently there was a deemed refusal at the primary decision-making stage (s 24(2)), with a further deemed refusal at the internal review stage when the internal review request was not dealt with. Again such a refusal founds the Tribunal’s jurisdiction.

53 In my view at this stage the desirable course is for the application for review to be remitted to the agency. It is open to the agency to refuse the application on the basis that it is a document that is available for inspection under Part 2.

54 If, as would no doubt sometimes be the case, the Part 2 material has material blanked out as exempt, then it would seem to be open to lodge an access application under Part 3 and the agency would have to consider whether to claim the exemptions formally; and any refusal on that basis would be subject to the internal review and external review provisions of the Act.

55 So the Tribunal’s conclusions on the questions raised by this case are as follows:

1. The agency is obligated to make a determination in response to the applicant’s access application which complies with ss 24 and 25 of the Act, except to the extent of any qualifications found in ss 18-23.

2. In the case of material of the kind covered by Part 2, there are grounds for refusal provided in s 25.

3. In the case of refusal on the basis that the material is available under Part 2, the agency should then proceed to deal with the application in the manner with which it deals with informal requests for access to documents covered by Part 2. Guidance as to those procedures is given by the Premier’s Manual, and the Ombudsman’s guidelines. If a member of the public is dissatisfied with the way those procedures are carried out, he or she may be able to complain to the Ombudsman but not to the Tribunal

4. If the member of the public receiving a document containing exempt matter under Part 2 is dissatisfied, it is open to him or her to lodge an access application under Part 3 applying for the purportedly exempt matter. The agency would then have to make a substantive determination, and the matter could be brought, in due course, to the Tribunal.

56 Consequently, the objection to jurisdiction is dismissed. A further planning meeting will be held. My provisional view is that the application should be remitted to the agency for it to make a formal determination under Part 3. The alternative is that the situation be treated as one of deemed refusal, and for the resolution of the matter to be left to the processes of the Tribunal.

Order

1. Respondent’s objection to jurisdiction dismissed.

2. Matter to be listed for further planning meeting.