O'Donoghue v Australian Information Commissioner (No 2)
[2013] FCA 52
•6 February 2013
FEDERAL COURT OF AUSTRALIA
O’Donoghue v Australian Information Commissioner (No 2) [2013] FCA 52
Citation: O’Donoghue v Australian Information Commissioner (No 2) [2013] FCA 52 Parties: VINCENT THOMAS O'DONOGHUE v AUSTRALIAN INFORMATION COMMISSIONER, DEPARTMENT OF THE ATTORNEY-GENERAL, THE ATTORNEY-GENERAL and MINISTER FOR JUSTICE File number: WAD 200 of 2012 Judge: MCKERRACHER J Date of judgment: 6 February 2013 Catchwords: ADMINISTRATIVE LAW – judicial review – whether the Information Commissioner erred by not, or refusing to, investigate the applicant’s complaint against the Attorney-General and the Department under s 69(1) of the Freedom of Information Act 1982 (Cth)
Held: no evidence the Department had ever received the applicant’s second freedom of information request which he complained was not acted upon – Information Commissioner entitled to take no further action in relation to investigating the applicant's complaint – application dismissed
Legislation: Freedom of Information Act 1982 (Cth) ss 69, 70, 72, 73 Cases cited: O'Donoghue v Honourable Brendan O'Connor (No 2) (2011) 122 ALD 571 Date of hearing: 20 December 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second, Third and Fourth Respondents: P Macliver Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 200 of 2012
BETWEEN: VINCENT THOMAS O'DONOGHUE
ApplicantAND: AUSTRALIAN INFORMATION COMMISSIONER
First RespondentDEPARTMENT OF THE ATTORNEY-GENERAL
Second RespondentTHE ATTORNEY-GENERAL
Third RespondentMINISTER FOR JUSTICE
Fourth Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
6 FEBRUARY 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the costs of the respondents, to be taxed if not agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 200 of 2012
BETWEEN: VINCENT THOMAS O'DONOGHUE
ApplicantAND: AUSTRALIAN INFORMATION COMMISSIONER
First RespondentDEPARTMENT OF THE ATTORNEY-GENERAL
Second RespondentTHE ATTORNEY-GENERAL
Third RespondentMINISTER FOR JUSTICE
Fourth Respondent
JUDGE:
MCKERRACHER J
DATE:
6 FEBRUARY 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
By originating application filed on 17 August 2012, the applicant (Mr O’Donoghue) seeks judicial review of the decision of the first respondent (the Information Commissioner) of 20 July 2012 ‘not to or to refuse to review or investigate’ Mr O’Donoghue’s complaint against the second respondent (the Department) and third respondent (the Attorney-General) under the Freedom of Information Act 1982 (Cth) (FOIA). The grounds specified are that:
1.In making the decision of 20 July 2012 the Information Commissioner erred in fact and in law.
2.In making the decision of 20 July 2012 the Information Commissioner relied on incomplete and erroneous information provided by the Department and the Attorney-General.
3.Rules of natural justice, procedural fairness and due process were not adhered to by the respondents.
4.The decision dated 20 July 2012 was made without the knowledge or consent of Mr O’Donoghue.
5.The respondents have by their collective conduct demonstrated perceived natural bias towards Mr O’Donoghue.
6.The conduct of the respondents will result in and lead to a miscarriage of justice.
Mr O’Donoghue sought orders setting aside the decision of the Information Commissioner of 20 July 2012, a declaration that the respondents have individually or collectively breached their respective duties and obligations under the FOIA and such further and other orders as the Court may think fit together with costs and damages.
At the first directions hearing on 11 September 2012 I made programming orders including that Mr O’Donoghue file and serve any affidavits in support of the application by 30 October 2012. The matter was listed for hearing on 6 December 2012.
Mr O’Donoghue subsequently sought to have the matter listed for hearing after April 2013. The respondents opposed that adjournment but indicated they would not oppose a short extension of time. On 5 November 2012 I granted Mr O’Donoghue a two week adjournment of the hearing, ordering that the application be listed for hearing on 20 December 2012. Adjustments were made to the programming orders concerning filing and serving of affidavits.
Mr O’Donoghue did not, however, file and serve any affidavit or submissions in support of his application.
PRELIMINARY MATTERS
At the hearing of the substantive application Mr O’Donoghue renewed his application to adjourn the matter and indicated that he would seek to adduce oral evidence if I was not minded to adjourn the matter. He sought permission to submit or tender documents which he would refer to in oral evidence. The documents were contained in a booklet, copied for the Court and for counsel for the respondents.
Mr O’Donoghue also sought an undertaking from the Commonwealth that he would not be extradited while matters were before any court. In that regard, Mr O’Donoghue had two matters currently before the Australian Human Rights Commission, a matter before the Family Court of Australia, a matter before the High Court of Australia and the current matter before me in the Federal Court of Australia.
The further adjournment application was opposed. I refused it.
I permitted Mr O’Donoghue to give oral evidence and to rely on documents subject to any objection to be raised by the Commonwealth.
I informed Mr O’Donoghue that there was no realistic risk of the High Court giving a decision (in the one remaining business day) before or over the Christmas break in relation to his latest application for special leave to appeal and that should something extraordinary happen in that regard he could have urgent leave to revert to the Court. I was not prepared to seek a further undertaking from the Commonwealth or grant a further injunction in relation to his extradition pending the outcome of the other cases generally. I was satisfied that even if the High Court were, on the papers, to suddenly refuse Mr O’Donoghue’s application for special leave he would hear about that well before the mechanics of his physical extradition could be implemented given the need to make arrangements with the requesting country (in this case, the Republic of Ireland) to organise personnel to attend Australia in order to put in place the extradition procedure.
LEGISLATIVE PROVISIONS
The key provisions dealing with complaints such as that raised by Mr O’Donoghue are set out in the FOIA.
Pursuant to s 69(1) FOIA, the Information Commissioner must, subject to Div 2 of Pt VIIB, investigate a complaint made under s 70. That provision relevantly provides that a complainant may complain to the Information Commissioner about an action taken by an agency in the performance of functions for the exercise of powers under the FOIA. The complaint must be in writing and must identify the agency in respect of which the complaint is made.
By s 72 FOIA, the Information Commissioner may make inquiries of the respondent agency for the purpose of determining whether or not to investigate a complaint made or purportedly made under s 70. Section 73 FOIA permits the Information Commissioner a discretion not to investigate or continue to investigate a complaint made about an action made under s 70 if the Information Commissioner is satisfied of any of the various matters set out in subparas (a) to (f) of that section which provide as follows:
(a)that the action is not taken by an agency in the performance of the agency’s functions or the exercise of the agency’s powers under [the FOIA];
(b)that:
(i)the complainant has or had a right to cause the action to be reviewed by the respondent agency, the Information Commissioner, a court or a tribunal; and
(ii)the complainant has not exercised, or did not exercise, the right; and
(iii)it would be, or would have been, reasonable for the complainant to exercise the right;
(c) that:
(i)the complainant has or had a right to complain about the action to another body; and
(ii)the complainant has not exercised, or did not exercise the right; and
(iii)it would be, or would have been, reasonable for the complainant to exercise the right;
(d)that the complainant has complained to the respondent agency, and the respondent agency:
(i)has dealt, or is dealing, adequately with the complaint; or
(ii)has not yet had an adequate opportunity to deal with the complaint;
(e)that the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;
(f)that the complainant does not have a sufficient interest in the subject matter of the complaint. (emphasis added)
As can be seen, by subpara (d) of s 73, there is reference to the complainant having complained to the respondent agency and the respondent agency having dealt with or dealing adequately with the complaint. Subparagraph 73(e) refers to the complaint being ‘frivolous, vexatious, misconceived, lacking in substance or not made in good faith’.
THE EVIDENCE
The evidence by way of Mr O’Donoghue’s oral evidence and the affidavit evidence relied upon by the respondents shows that Mr O’Donoghue is in custody at Hakea Prison awaiting extradition to the Republic of Ireland following a decision of the Minister on 23 March 2011, pursuant to s 22(2) of the Extradition Act 1988 (Cth) (EA), that Mr O’Donoghue be surrendered to Ireland. The Minister issued a surrender warrant under s 23 EA for Mr O’Donoghue’s extradition. These circumstances are recounted together with the brief history of his arrival in Australia in subsequent proceedings leading up to the determination on 23 March 2011 in O'Donoghue v Honourable Brendan O'Connor (No 2) (2011) 122 ALD 571 (at [7]-[19]).
The documented evidence reveals that on about 5 June 2012, Mr O’Donoghue wrote to the Department advising that he had made an application for access to certain documents under the FOIA. He said there had been no response from the Department and he noted that this was in contravention of the FOIA.
As a consequence of that complaint, on 14 June 2012 the Assistant Director of the Department’s Freedom of Information (FOI) and Privacy Section, Ms Coutts, wrote to Mr O’Donoghue. Mr O’Donoghue’s letter of 5 June 2012 was received by the Department on 12 June 2012. Ms Coutts advised that the Department had not received his original request under the FOIA but the Department nevertheless considered his letter of 5 June 2012 to be a valid request under the FOIA and would process it accordingly.
On 27 June 2012, the Deputy Director of the Compliance Office of the Information Commissioner, Ms Harlock, emailed the Department’s FOI and Privacy Section Director, Mr Bennett, advising that the Office of the Information Commissioner had received a complaint from Mr O’Donoghue and asking for his response to four questions set out in the email by 11 July 2012.
On 3 July 2012, a Legal Officer in the Department’s FOI and Privacy Section, Mr Plowman, wrote to Mr O’Donoghue advising that as the Department had processed his previous FOI request lodged on 9 August 2011 in respect of documents held by the Department for the period 1 July 2010 to 11 October 2011 (the first FOI request), Mr Plowman intended to process Mr O’Donoghue’s latest FOI request only in relation to the Department’s documents for the period 12 October 2011 to 12 June 2012. He further advised that as the material within the scope of Mr O’Donoghue’s latest FOI request was voluminous, it would not be possible to complete the process by 12 July 2012. He requested the consent of Mr O’Donoghue to a 30 day extension of time to Monday, 13 August 2012 pursuant to s 15AA FOIA.
On 4 July 2012, Mr Bennett replied to Ms Harlock’s email of 27 June 2012. He provided answers to the four questions asked by Ms Harlock. In particular, in his answer to question 1, Mr Bennett advised the Department had no record of ever having received Mr O’Donoghue’s second FOI request referred to in Mr O’Donoghue’s letter of 5 June 2012. He stated that Mr O’Donoghue had neither provided the Department with a date on which this request was supposedly sent, nor a copy of it, and that the only correspondence which the Department had received from Mr O’Donoghue since processing the first FOI request in February 2012 was his letter of 5 June 2012 received on 12 June 2012.
On 17 July 2012, Mr O’Donoghue wrote to the Department asking a series of questions and requesting that the Department provide him with ‘a copy of any purported delegation of power as the case may be, which may be, or is deemed to be relevant to [Mr O’Donoghue] and [his] circumstances’. The following day, Mr Donoghue again wrote to the Department advising that he declined Mr Plowman’s request for an extension of time of 30 days or at all.
Two days later, Mr Hansen, Director of FOI Compliance in the Office of the Information Commissioner emailed Mr Bennett advising that on the basis of the information provided by the Department, the Information Commissioner had finalised the matter. As the complaint related to an application under the FOIA that was never received, the Information Commissioner considered the complaint to have been invalid.
I pause to observe that at no point has it ever been accepted that the FOI request referred to by Mr O’Donoghue in his 5 June complaint was ever made. There is no record or documentary evidence of it in any form.
On 2 August 2012, Mr Plowman wrote to Mr O’Donoghue in response to his 17 July 2012 letter advising that he, Mr Plowman, was not in a position to provide Mr O’Donoghue with advice on the question which he had raised concerning the basis of decisions made by the Minister in relation to Mr O’Donoghue under s 22 EA. As to Mr O’Donoghue’s request to furnish him with a copy of any purported delegation made by the Minister of powers and functions under the FOIA, Mr Plowman advised the Department had no record of any such instrument.
Subsequently, Mr Plowman made the decision on 27 September 2012 to partially release copies of the documents requested by Mr O’Donoghue subject to certain deletions. He wrote to Mr O’Donoghue on that day advising him of the reasons for his decision, in particular, the bases for the deletions which were made to the documents.
However, by this time Mr O’Donoghue had already filed (on 17 August 2012) his application for judicial review.
CONSIDERATION
Mr O’Donoghue made the point in his oral evidence that there was no obligation on the part of the fourth respondent (the Minister) to explain his reasons to him as to why he signed the s 23 EA warrant for Mr O’Donoghue’s extradition or to give reasons for that decision. The only other mechanism to get information in regard to the ministerial act was through the FOIA. He accepted, however, that he had received in the course of the extradition application the original submission made by the Australian Government Solicitor or the Department to the Minister. This observation, in any event, appears to have little to do with the question for me which is whether or not there has been a failure to deal with his complaint.
Some point was also made by Mr O’Donoghue of the fact that the Information Commissioner denied the existence of any Department of Justice notwithstanding the fact that there was a Minister for Justice. He argues that this is being raised as an excuse for non compliance with his request. Again the relevance of this appears to be elusive. This observation appears to have little to do with the question before me which is whether or not there has been a failure to deal with his complaint.
In relation to the documents produced by Mr O’Donoghue, there was a general objection raised for the respondents as to the relevance of them given the nature of this application. I agree that they throw very little light on the question of whether or not there has been a failure to deal with his complaint
The threshold difficulty for Mr O’Donoghue is a simple one. There is no relevant (the second) FOI request proven. The evidence relied upon by the Minister showed that a FOI request had been made by Mr O’Donoghue resulting in a second tranche of documents being sent to him on 9 February 2012. Subsequent to that date, Mr O’Donoghue says he made a further FOI request to the Department. There was no copy of that request held by the Department or produced by Mr O’Donoghue. No date of it is stipulated. In the absence of any such request, it was not unreasonable for the Information Commissioner to adopt the position that there could be no valid complaint about delay in processing a request which was not shown to have existed.
The respondents say there is no relief the Court can properly grant in respect of the 20 July 2012 decision not to further investigate or review the particular complaint because the Department did not receive the second FOI request and therefore could not process it. On this ground alone, the application must fail but there are more substantive considerations.
As the narrative discussed above illustrates, there can be no doubt that the Department took steps to investigate Mr O’Donoghue’s complaint after receiving his letter of 5 June 2012 on 12 June 2012. That is clear by the correspondence written to Mr O’Donoghue on 14 June 2012 by Ms Coutts who held a senior position in the Department. She made it clear to him that the Department had never received the second FOI request. Nevertheless, although it might be argued that it was unnecessary to do so, Ms Coutts indicated that the Department would treat his letter of 5 June 2012 as a valid request and would process it accordingly. It is difficult to see what else the Department could or should do in those circumstances.
The history also reveals there was an ongoing investigation of Mr O’Donoghue’s complaint by the Information Commissioner. This is clear from Ms Harlock’s email of 27 June 2012 to Mr Bennett in the Department which the respondents submit, and I accept, constitutes either an investigation or at least a preliminary inquiry pursuant to s 72 FOIA. Ms Harlock was informed that the Department simply had no record (and neither did Mr O’Donoghue) of any FOI request being sent as referred to by Mr O’Donoghue’s letter of 5 June 2012. That letter was the only correspondence the Department had received from Mr O’Donoghue since it had finished processing the first FOI request in February 2012.
The Information Commissioner in light of the Department’s response was clearly entitled to form the view that the complaint was misconceived or invalid as there was no evidence of any second FOI request. Mr O’Donoghue appears to be under the impression that the correspondence may be taken as construing some form of concession that a request was made, particularly by volunteering to treat the 5 June 2012 complaint as a request. However, there is no concession of that nature whatsoever and simply no evidence of any such request being made. In those circumstances, the Information Commissioner was perfectly entitled to take no further action in relation to the complaint by Mr O’Donoghue on receipt of the advice from the Department of 4 July 2012 that no second FOI request was received.
The application, which Mr O’Donoghue himself twice sought to adjourn, is frivolous and fundamentally misconceived. Not only was there no proper basis to bring the application but the treatment he received at all times was both lawful and courteous.
The application will be dismissed. The applicant is to pay the costs of the respondents, to be taxed if not agreed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 6 February 2013
0
0
1