Park-Kang and Secretary, Department of Foreign Affairs and Trade (Freedom of information)

[2015] AATA 703

Park-Kang and Secretary, Department of Foreign Affairs and Trade (Freedom of information) [2015] AATA 703 (11 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1226
Re	Sungju Park-Kang
APPLICANT
And	Secretary, Department of Foreign Affairs and Trade
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	11 September 2015
Place	Sydney

The Tribunal has jurisdiction to determine Mr Park-Kang’s application under the Freedom of Information Act 1982.

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Mr S. Webb, Member

CATCHWORDS

FREEDOM OF INFORMATION – jurisdiction – request for access to information – records not within ‘open access period’ under the Archives Act 1983 at time of request – some information determined to be exempt from release – deemed internal review decision – delay – application for review by tribunal - records within ‘open access period’ at time of review – jurisdiction to determine access to information at time of request

LEGISLATION

Freedom of Information Act 1982, ss 3, 3A, 11, 12, 15, 57A

Archives Act 1983, ss 2A, 3, 40

CASES

Re Lobo and Department of Immigration and Citizenship (2010) 116 ALD 639

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

REASONS FOR DECISION

Mr S. Webb, Member

11 September 2015

1. Sungju Park-Kang is seeking access to records relating to the bombing of Korean Airlines flight 858 on 29 November 1987. He lodged a request under the Freedom of Information Act 1982 (the FOI Act) with the Department of Foreign Affairs and Trade (the Department). In discussion with Departmental officers, he subsequently agreed to narrow the scope of the request to a specific period, in the following terms –

   “Copies of all documents relative to DFAT’s [the Department] analysis of North Korea’s bombing of Korean Airlines (KAL) flight 858 on 29 November 1987 generated in the period 29 November 1987 to 31 December 1988.

2. The Departmental officer dealing with Mr Park-Kang’s request identified 214 documents within the scope of the request. Determinations were made in respect of each document – 58 documents were released in full, 126 documents were partially exempt and were released with deletions and 30 documents were fully exempt and were not released.[1]

   [1] T10 and T11.

3. Mr Park-Kang applied for internal review.

4. As an internal review decision was not made within the required time, the original decision was deemed to be affirmed.

5. Mr Park-Kang applied for review by the Office of the Australian Information Commissioner (OAIC). Submissions by the Department to the OAIC identify 208 documents within the scope of Mr Park-Kang’s request, of which 31 were exempt in full from release.[2] Variations between the initial decision and the later Departmental submission have not been explained. But this is not something I need to address for present purposes.

   [2] T19.

6. After some delay, the OAIC determined the application under s 54W of the FOI Act. Mr Park-Kang applied to this Tribunal for review.

7. In the course of the resulting proceedings, an issue has arisen in respect of the scope of the review and the Tribunal’s jurisdiction. Mr Park-Kang’s application was made and determined under the FOI Act in respect of records that were not, at the time, within the ‘open access period’ under the Archives Act 1983 (the Archives Act). Subsequently, the status of records to which he seeks access changed, such that they are now within the ‘open access period’ under s 3(7) of the Archives Act. The effect of this is that, subject to exclusion of personal information, a person is not entitled to obtain access to these records under Part III of the FOI Act: s 12(1)(a) provides that -

   12(1) A person is not entitled to obtain access under this Part to:

   (a) a document, or a copy of a document, which is, under the Archives Act 1983, within the open access period within the meaning of that Act unless the document contains personal information (including personal information about a deceased person);

8. The issue arising is whether this factual change has any bearing on the scope of the review and the jurisdiction of this Tribunal in Mr Park-Kang’s case.

9. It is this issue, alone, that I will deal with in these reasons.

10. Perhaps understandably, Mr Park-Kang is frustrated by the time taken to bring his application for review to a conclusion and the emergence of a new legal issue. But the legal issue raises an important point that must be dealt with, concerning the interaction of two legislative schemes governing access to Commonwealth government records in Australia.

11. Mr Park-Kang submits that, as the records were not with the open access period under s 3(7) of the Archives Act when he requested access on 31 January 2011, the Tribunal should conduct its review on that basis under the FOI Act.

12. The Respondent Secretary appears to support a construction that would allow this to occur. The Secretary relies on what DP Forgie said in Re Lobo and Department of Immigration and Citizenship[3] at [63] about the static nature of the right of access established when a request is made in accordance with s 15(1). The Secretary maintains that the bar in s 12(1)(a) of the FOI Act on granting access to records within the ‘open access period’ under the Archives Act does not apply on review in a case where the ‘open access period’ threshold had not yet been crossed when the request for access was made and determined.

    [3] (2010) 116 ALD 639

13. If this construction is correct, it would mean that access to subject documents might be granted on review under the FOI Act when, otherwise, an application would be required under s 40 of the Archives Act for access to records within the open access period.

14. The issue goes to the Tribunal’s jurisdiction. Questions of jurisdiction are for the Tribunal to determine. It is for this reason and the avoidance of doubt that the jurisdictional issue has been raised for determination early in the proceedings.

15. The FOI Act and the Archives Act are complementary and, together, they provide a comprehensive scheme for the provision of access to Commonwealth government records. The ‘open access period’ conception under the Archive Act is one that, under s 31, requires the National Archive to provide access to a record that is not exempt a number of years after the record was created (the number of years is to be worked out under s 3(7)). The provision of access is subject to receipt of an application and to the determination of exemptions under s 33 and s 35 of the Archives Act. Prior to the commencement of the ‘open access period’, access to records may be obtained by request under the FOI Act, subject to the determination of exemptions by the holding agency, or by the OAIC or this Tribunal on review.

16. Under the FOI Act, the request for access is the starting point. This is a cornerstone of the access provisions under the Act, and it defines the scope of records and documents that must be determined for release. In Mr Park-Kang’s case, the initial broad scope of his request was narrowed by agreement. He formalised a request under the FOI Act on 29 December 2010[4] and subsequently agreed to narrow the terms of his request on 31 January 2011.[5]

    [4] T3.

    [5] T6.

17. A properly made request for access under s 15 of the FOI Act enlivens the person’s legally enforceable right of access under s 11 of that Act. Mr Park-Kang’s right of access crystallized on 31 January 2011. Whatever substantive form his right might have, it includes determination of his request for access to the information held by the Department at the time the request was made. Certainly, that is his expectation. And that is what was done - a primary determination of his request was made. Mr Park-Kang obtained access to some documents, but others were found to be exempt from release, in whole or in part.[6]

    [6] See T10 and T11.

18. Provision is made under the rather complex provisions of the FOI Act for review of a primary determination of a request for access. A person who is not satisfied with a primary determination of access is entitled to apply for review. That is what Mr Park-Kang sought on 6 January 2012, when he applied for internal review,[7] and it is what he sought when he applied, on 17 October 2012, for review by the OAIC.[8] It is what he seeks in these proceedings. It is a matter of some concern that after the passage of some years Mr Park-Kang’s initial request is yet to be finally determined on review. Nonetheless, the review provisions provide for Mr Park-Kang’s request to be reconsidered afresh and for a new decision to be made on the merits. The review is confined to the scope and terms of the request made, but it is not confined to the materials and documents that were before the original decision-maker – additional materials that are relevant to or bear upon the request to be determined may be considered.

    [7] T12.

    [8] T14.

19. In Mr Park-Kang’s case, 214 documents were considered to fall within the terms of his request. These were dealt with by the original decision-maker. No additional documents have been identified within the terms of his request in the course of these proceedings or during the previous proceedings before the OAIC.

20. The status of the documents covered by Mr Park-Kang’s access request changed under the Archives Act when they crossed the threshold of the ‘open access period’ determined under s 3(7) of that Act. By 1 January 2015, all of the documents in issue were within the ‘open access period’.

21. Even though the effluxion of time resulted in the ‘open access period’ threshold being crossed for the records and documents within the scope of his request, Mr Park-Kang has an accrued right to have the determination of his request for access reviewed and determined afresh under the FOI Act. This means that the present review must determine whether his right to access the records he seeks in the Department’s holdings at the time his request was made is tempered by the exemption of information from release. The factual change in the status of the records under the Archives Act does not bear upon Mr Park-Kang’s review rights accrued under the FOI Act.

22. It is quite clear that s 12(1)(a) of the FOI Act removes a person’s entitlement under that enactment to obtain access to a document within the ‘open access period’ determined under the Archives Act – access may be granted under s 31 of the Archives Act. But, in the present circumstances, it does not follow that s 12(1) acts negatively upon Mr Park-Kang’s accrued right to review, or to the right of access that crystallized under the FOI Act when he made his request. This is so because his request for access and his application for review under the FOI Act were made before the records in question crossed the ‘open access period’ threshold under the Archive Act.

23. It is important to observe that the transition of records into an open access period under the Archives Act does not render the records exempt from public access or exempt from release under that Act or under the FOI Act. Once a record crosses the open access period threshold, public access and exemption from access are to be determined under the Archives Act, whereas, otherwise, access is to be determined under the FOI Act.

24. Presently, this Tribunal’s jurisdiction is enlivened by Mr Park-Kang’s application under s 57A of the FOI Act. The jurisdiction is confined to the terms of Mr Park-Kang’s request and the Secretary’s corresponding determination under the FOI Act. In the present circumstances, if s 12(1) of the FOI Act is construed in a manner that requires a fresh application for access under s 40 of the Archives Act once the documents sought crossed the ‘open access period’ threshold under s 3(7) of the Archives Act, it would limit, abort or render otiose review of the primary determination by the Tribunal. A construction of this kind is not consistent with the objects and purposes of the review provisions of the FOI Act. Furthermore, the restrictive effect of such a construction is not consistent with the express objects and purposes of the FOI Act, and I reject it.

25. Considering what the High Court said in Shi v Migration Agents Registration Authority[9], it is necessary to consider the particular nature of the decision under review. The primary determination addressed 214 records or documents there were identified within the terms of Mr Park-Kang’s request. The documents were in the Department’s holdings at the time. It is in respect of these documents that release and exemption decisions were made by the primary decision-maker. On review, the Tribunal must apply the FOI Act as it stands and consider any relevant change in circumstances, addressing the materials placed before it, when making a fresh decision whether the documents are exempt from release. That is so whether one or some or all of the documents are no longer held by the Department, or whether because of the passage of time the documents are presently within the ‘open access period’ under the Archives Act.

    [9] (2008) 235 CLR 286, see Kirby J at [301].

26. This construction is consistent with the objects of the FOI Act set out in s 3 and 3A. It is also consistent with the objects of the Archives Act set out in s 2A of that Act. The bar on a person’s entitlement to obtain access to certain documents under s 12(1) of the FOI Act may require a person to apply for access under s 40 of the Archives Act at first instance. But, in a case such as this, where s 12(1)(a) was not enlivened when Mr Park-Kang made his request or when that request was determined by the Department, or when Mr Park-Kang applied for review, there is no bar presently, limiting the scope of the Tribunal’s review or its jurisdiction in respect of Mr Park-Kang’s application.

27. I understand from the parties that further informal discussions may be desirable to progress the matter. For this reason, a further telephone preliminary conference should be listed at the earliest convenient date.

    DECISION

28. The Tribunal has jurisdiction to determine Mr Park-Kang’s application under the Freedom of Information Act 1982.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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Associate 

Dated 11 September 2015

Date(s) of hearing	24 August 2015
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor