Mughal v Canberra Institute of Technology (Administrative Review)

[2018] ACAT 71

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MUGHAL v CANBERRA INSTITUTE OF TECHNOLOGY (Administrative Review) [2018] ACAT 71

AT 14/2018

AT 66/2018

Catchwords:              ADMINISTRATIVE REVIEW – freedom of information – documents requested no longer in possession of the agency or already provided – Freedom of Information Act 1989 applies only to ‘documents in possession of an agency’ – meaning of ‘refuse’

Legislation cited:      Freedom of Information Act 1989 ss 2, 60, Dictionary

Freedom of Information Act 2016 s 201

Cases cited:               Rejman v Dunsmore [1983] 32 SASR 151

Tribunal:                   Presidential Member G McCarthy

Date of Orders:  12 July 2018

Date of Reasons for Decision:         12 July 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 14/2018

BETWEEN:

WARIS MUGHAL

Applicant

AND:

CANBERRA INSTITUTE OF TECHNOLOGY

Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:12 July 2018

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Presidential Member G McCarthy

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 66/2018

BETWEEN:

WARIS MUGHAL

Applicant

AND:

CANBERRA INSTITUTE OF TECHNOLOGY

Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:12 July 2018

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Presidential Member G McCarthy

REASONS FOR DECISION

1.These applications concern the second and third of five requests for documents made by the applicant under the Freedom of Information Act 1989 (the FOI Act).

2.Although the FOI Act has been repealed following commencement of the Freedom of Information Act 2016, section 201 of the 2016 Act provides that the FOI Act “continues to apply” to a request for access to a document that was made under the FOI Act that has not been “finally decided”. I accept the respondent’s submission, which was not disputed, that ‘finally decided’ includes determination of an application for review by the Tribunal of a decision responding to a request made under the FOI Act.

3.I have treated the first application, referred to during the hearing as ‘FOI 2’, as an application in proceeding AT 14/2018 concerned the applicant’s request for Ms Murphy’s handwritten notes taken during her interview with the applicant on 27 October 2017.

4.I have treated the second application, referred to during the hearing as ‘FOI 3’, as an application in proceeding AT 66/2018 concerned the applicant’s request for documents concerning the respondent’s records management.

5.I deal with the applications in turn.

FOI 2

6.On 27 November 2017, the applicant requested the following document under the FOI Act:

The interview template completed by Ms Corinna Murphy on 27 October 2017 in her own HANDWRITING during the competency conversion with me for RPL for the BSBHRM506 unit as part of my RPL application of 20 March 2017.

7.By letter in response dated 1 December 2017, Mr Ryan on behalf of the respondent stated that he “did not consider this to be a request under the FOI Act”, but the respondent (correctly) conceded at hearing that the applicant’s request made on 27 November 2017 was a valid request under the FOI Act.

8.Mr Ryan also stated in his letter:

I understand the document you refer to was offered to [you] at the conclusion of the meeting on 27 October 2017. I am advised that you did not take the document as you were satisfied with the outcome of the meeting. Ms Murphy told you that she would type up the document into the official template and forward you a copy, which she has done. The hand written document has since been securely destroyed as part of normal administrative practice.

9.During the hearing, the applicant agreed that Ms Murphy offered him the document. The applicant stated it was a document “which I refused”. The applicant also said he did not realise that the document might be destroyed.

10.By letter dated 11 December 2017, the applicant replied to Mr Ryan. The applicant contended that his request under the FOI Act was valid. He noted from Mr Ryan’s response that “the original notes have been destroyed” and protested about the difficulties he therefore had, as he perceived it, in challenging Ms Murphy’s responses against performance criteria concerning his recognition of prior learning.

11.The applicant concluded his letter by stating “I also look forward to the outcome of [my FOI 2] request consistent with the provisions of the FOI Act and the Records Act.”[1]

[1] I understood the applicant's reference to the Records Act as a reference to the Territory Records Act 2002

12.In my view, the applicant’s letter dated 11 December 2017 constituted a request for internal review. On the evidence, it appears that an internal review was not conducted, even if for understandable reasons including that there were no notes to produce and the respondent was endeavouring to resolve the applicant’s concerns by meeting with him. Those endeavours were unsuccessful because the applicant did not reply to the respondent’s correspondence.

13.Where the respondent did not conduct an internal review of the applicant’s FOI 2 request, the applicant became entitled under section 60(3) of the FOI Act to seek review of the decision (as he did) by the Tribunal.

14.At hearing, Ms Murphy gave evidence that on 27 October 2017 she transcribed her handwritten notes into a typed document so that the notes were more legible and easier to understand. She stated that because the typed notes were an accurate record of her handwritten notes she disposed of her handwritten notes into a secure destruction bin for paper documents. She stated that the bin is collected on a monthly basis, and that she believes therefore the notes “would have been destroyed”. Under cross-examination, Ms Murphy stated that she signed the typed up document a few days after her meeting with the applicant. This accords with the applicant drawing to Ms Murphy’s attention that the notes were signed on 31 October 2017, and that 28 and 29 October 2017 was the weekend.

15.The applicant put to Ms Murphy that the notes might not have been destroyed because to do so was (or would have been), he said, contrary to the respondent’s procedures and policies concerning retention of documents. The applicant contended that because the notes should not have been destroyed, an inference should be drawn that they have not been destroyed. He submitted that the respondent should carry out a further search of its databases in an attempt to find the notes, and sought an order that the respondent do so.

16.Ms Murphy disagreed that the destruction of her handwritten notes was contrary to the respondent’s procedures and policies because, in her view, the documents were ‘ephemeral’ and so could be destroyed under the respondent’s records management policy and procedures. Ms Murphy was also definite in her evidence that, rightly or wrongly, on 27 October 2017 she put her handwritten notes into the secure destruction bin and that no copy of her notes was made.

17.From these facts and circumstances, questions arise regarding the decision under review, and the tribunal’s jurisdiction on review. Section 60 of the FOI Act provides:

60 Applications to ACAT

(1)     Subject to this section, an application may be made to the ACAT for review of—

(a)a decision refusing to grant access to a document in accordance with a request, not being a decision under section 33, or a decision deferring the provision of access to a document; or

(b)a decision refusing to allow a further period for making an application under section 59 (1) for a review of a decision; or

(c)a decision of the kind referred to in section 59 (1) (b) or (c).

(2)     Subject to subsection (3), where, in relation to a decision referred to in subsection (1) (a) or (c), a person is or has been entitled to apply under section 59 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on the review.

(3)     Subsection (2) does not prevent an application to the ACAT in respect of a decision where—

(a)the person concerned has applied under section 59 for a review of the decision; and

(b)a period of 14 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and

(c)the person has not been informed of the result of the review;

and such an application to the ACAT may be treated by the ACAT as having been made within the time allowed by subsection (4) if it appears to the ACAT that there was no unreasonable delay in making the application.

(4)     Despite the ACT Civil and Administrative Tribunal Act 2008, section 10 (d), and subject to any extension of time granted by the ACAT, an applicant may make an application under subsection (1) in relation to a decision under section 54 (3) within 28 days after the day the ombudsman informs the applicant under section 54 (3).

18.‘Document’ is defined in the Dictionary to the FOI Act as follows:

document, in relation to an agency, means a document in the possession of the agency, whether created in the agency or received in the agency.

19.It follows from the definition of ‘document’ that section 60 applies only to a document (or documents) “in the possession of” the respondent. That is consistent with a stated object in section 2 of the FOI Act, being to extend as far as possible the right of access to information “in the possession of the Territory” by creating a general right of access to information in documentary form “in the possession of” Ministers and agencies.

20.It is also consistent with the ordinary meaning of ‘refuse’ relevantly defined, for example, in the Macquarie Dictionary (seventh edition) as meaning “to decline to give; to deny a request or demand”. For a person to ‘refuse’ contemplates the person not doing something which the person has capacity to do.

21.In Rejman v Dunsmore,[2] the Supreme Court of South Australia considered the meaning of ‘refuse or fail’ in section 47(3) of the Road Traffic Act 1961 (SA) which stated:

When a person is required under this section to submit to an alcotest or breath analysis he shall not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, shall not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a member of the police force.

[2] Rejman v Dunsmore [1983] 32 SASR 151

22.Regarding the meaning of ‘refuse or fail’, the Court said:

What is in contemplation is a person required to submit to a test. Faced with such a requirement … a person may comply, in which case the machinery established by the section will operate in the manner directed, or a person may not comply, either because he or she is physically incapable, or because he or she decides not to do so.

…

Inexcusable non-compliance may, as it seems to me, take either of two forms: the person required may expressly, by word of mouth, or by necessary implication through his conduct, refuse to comply; or, by the ineptness or incompleteness of his purported attempt to comply, fall short of the requirement or direction, to such a degree, or in such a manner, as to leave no room for doubt that the failure was deliberate.[3]

[3] Rejman v Dunsmore [1983] 32 SASR 151 at 159

23.All these indicators demonstrate that a person’s right under section 60(1) of the FOI Act to apply to the Tribunal for review of “a decision refusing to grant access to a document” applies only to a document in the possession of the agency to whom the request was made.

24.It follows that the applicant’s application to the Tribunal must fail if the document the subject of the request is not in the possession of the agency.

25.On the evidence, I am satisfied on the balance of probabilities that on 27 November 2017 when the applicant made his request for Ms Murphy’s notes, the notes were not in the possession of the respondent because they had been destroyed. Several factors caused me to make that finding of fact.

26.First, I have the evidence on oath of Ms Murphy. She gave clear and unequivocal evidence that she put the notes in the security destruction bin, and that the bin is cleared monthly.

27.Second, the applicant did not have any direct evidence to the contrary. He asked me to draw an inference that the notes had not been destroyed because, he said, they should have been retained under the respondent’s policies and procedures. I am not prepared to draw that inference in the face of Ms Murphy’s evidence, particularly where she impressed me as a forthright witness of truth.

28.I add that whether the handwritten notes should have been retained is a different issue, and not an issue arising on the application before me which is concerned solely with the question whether the notes can, and if so should, be produced.

29.The applicant also asked me to draw an inference that the notes have been retained because the respondent’s computer record concerning the applicant states that on 1 November 2017 his “Skills Recognition” had been finalised but that “additional details” concerning him were “updated” on 6 November 2017. I could see no basis for why I should infer from the updating of the applicant’s computer record on 6 November 2017 that Ms Murphy’s handwritten notes have not been destroyed. The record could have been updated for innumerable reasons. I asked the applicant if he had enquired about what was updated on 6 November 2017: he said he had not done so.

30.Where I am satisfied in relation to the applicant’s request for Ms Murphy’s handwritten notes that there are no notes in the possession of the respondent (i.e. the agency), it follows that there is not, and cannot be, a decision refusing to grant the applicant access to the notes.

31.The respondent submitted that I should set aside the decision under review and make, in substitution, an order refusing the applicant’s application for access to the notes because the notes no longer exist.

32.In my view, I do not have power to make either order. Under section 60 of the FOI Act, the Tribunal can review only a decision refusing access to a document in the possession of an agency, and the respondent in this case. Where I am satisfied that the respondent has not made such a decision in response to the applicant’s FOI 2 request, it follows that there is not a reviewable decision before the Tribunal. The absence of a reviewable decision means that the Tribunal does not have jurisdiction to make any substantive orders on the application. It can only dismiss the application arising from FOI 2 for lack of jurisdiction.

FOI 3

33.On 11 December 2017, the applicant requested the following documents under the FOI Act:

…the documents (policy, procedures and codes of practice) on the CIT’s Normal Administrative Practice (approved under sections 24 and 16(2)(b) of the ACT Records Management Act 2002) for CIT staff and teachers under the CIT’s Records Management Program approved by CIT’s principal officer under section 17 of the Records Management Act 2002. If the approved program was signed off by a delegate of the principal officer, the instrument of delegation and agreement thereto of the Director of Territory Records.

34.The request then a detailed the applicant’s opinion about what the approved codes of practice should contain as a minimum.

35.By letter in response dated 4 January 2018, Mr Ryan on behalf of the respondent stated that he “did not consider this to be a request under the FOI Act”, but the respondent (correctly) conceded at hearing that the applicant’s request made on 11 December 2017 was a valid request.

36.Mr Ryan also stated in his letter:

The Territory Records Act 2002 requires ACT agencies to have, and comply with, a Records Management Program. The CIT Records Management Policy and Procedures (attached) outline the Records Management Program for CIT and details how CIT will adhere to the requirement of the Territory Records Act 2002.

37.Mr Ryan also noted that he had, at the applicant’s request, provided the applicant with a word version of the document.

38.By letter dated 22 January 2018, the applicant sought internal review of Mr Ryan’s decision. The respondent properly accepted that because it did not undertake an internal review, the applicant was entitled under section 60(3) of the FOI Act to seek review of the decision (as he did) by the Tribunal.

39.At hearing, Mr Ryan gave evidence that the CIT Records Management Policy, as provided to the applicant, covered the three aspects of the applicant’s FOI 3 request, being normal administrative practice, security classification and destruction of records. For completeness, the respondent also provided the applicant with a copy of its Skills Recognition Policy, its Skills Recognition Procedure and a file note created by the respondent’s FOI co-ordinator which provided the applicant with an overview of CIT’s records management policy and procedure.

40.During the hearing, the applicant challenged Mr Ryan about the adequacy of the policy document. He put to Mr Ryan, for example, that it was inadequate or deficient because of, he said, the absence of any provisions concerning the duration of retention of assessment/interview records. Mr Ryan replied that regardless of the adequacy or inadequacy of the policy document, it was the only policy document that the respondent held regarding records management.

41.The applicant also put to Mr Ryan that there was, or should be, an updated version of the policy document and asked that it to be provided. Mr Ryan replied that there is not an updated version, and that the version given to the applicant is the latest version.

42.Mr Ryan gave evidence, and I accept, that the respondent has given the applicant all the documents in its possession that respond to the applicant’s FOI 3 request.

43.Consistent with my reasoning regarding FOI2, where I am satisfied that the respondent has not made a decision refusing to grant the applicant access to any document in its possession that responds to FOI 3, it follows that there is not a reviewable decision before the Tribunal. The application arising from FOI 3 must therefore be dismissed for lack of jurisdiction.

………………………………..

Presidential Member G McCarthy

HEARING DETAILS

FILE NUMBER:	AT 14 & 66/2018
PARTIES, APPLICANT:	Waris Mughal
PARTIES, RESPONDENT:	Canberra Institute of Technology
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBER:	Presidential Member G McCarthy
DATE OF HEARING:	6 July 2018