Potier v Department of Corrective Services
[2011] NSWADT 53
•15 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Potier v Department of Corrective Services [2011] NSWADT 53 Hearing dates: On the papers Decision date: 15 March 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The matter is remitted for redetermination by the Respondent with respect to Mr Potier's request for access to the Junee contract with the recommendation that Mr Potier be given access to the document. The redetermination is to be made within 28 days of this decision.
2. The determination is otherwise affirmed in relation to the remaining preliminary issues.
3. The matter is listed for further planning meeting at 9.30 am on Tuesday 3 May 2011.
Catchwords: Freedom of Information Act - sufficiency of search - publicly available documents Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989Cases Cited: Administrative Decisions Tribunal Appeal Panel v Director- General, Department of Commerce & Ors [2008] NSWCA 140
Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86
In McGuirk v Attorney General of NSW [2008] NSWADTAP 81
McGuirk v Commissioner of Police. NSW Police [2008] NSWADT 328
Potier v Department of Corrective Services [2008] NSWADT 278
Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADTCategory: Interlocutory applications Parties: Malcolm Potier (Applicant)
Department of Corrective Services (Respondent)Representation: M Potier (Applicant - in person)
Department of Corrective Services (Respondent)
File Number(s): 103076
reasons for decision
Mr Potier applied to the Department of Corrective Services ("the Respondent") under the Freedom of Information Act 1989 ("the FOI Act") for access to documents held by the Respondent.
Following negotiations between the parties the scope of the application was narrowed. Mr Potier sought:
1. Copies of all communications, file notes and other related documents, be they received or sent by any medium, including, but not limited to electronic means relating to the applicant's initial request for the NSW Department of Corrective Services of the 15th May 2009 for Freedom of Information Act Application Forms and the Departments reply of the 17th September 2009.
2. All documents, of any nature, prepared or received at any time by any persons either previously or presently in the employ of the NSW Department of Corrective Services concerning the NSW Police Investigation in November 2001 to August 2006 into an offence said to have been committed by the applicant between November 2001 and May 2002 at the Long Bay Jail.
3. Copies of any recordings made in any medium, at any time, made by any persons either previously or presently in the employ of the NSW Department of Corrective Services concerning the NSW Police Investigation in November 2001 to August 2006 into an offence said to have been committed by the applicant between November 2001 and May 2002 at the Long Bay Jail.
4. A list of all items that may exist covered by items 2-3 above that exemption is claimed from disclosure.
5. Copies of all communications, of any kind, between the servants and agents of the NSW Commissioner for Police and the NSW Department of Corrective Services concerning the provision of items covered by items 2-3 above.
6. Copies of all documents prepared at any time by any persons in the employ or associated with the NSW Department of Corrective Services, including, but not limited to the Serious Offenders Review Council, concerning the applicant's complaint to the Minister for Prisons in 2008 alleging misconduct by Members of Staff of the NSW Department of Corrective Services at the Parklea Correctional Centre.
7. Classification documents prepared by the servants and agents of the NSW Department of Corrective Services.
Some documents were released in response to Mr Potier's request. However, Mr Potier was not satisfied with the Respondent's determination in response to his request and he sought an internal review. The internal review, undertaken by the Manager of the Respondent's Freedom of Information & Privacy Unit, Ms Margaret Fulford, stated:
My determination of today's date is that I have granted partial access to documents covered by the scope of your internal review.
Provision is made in section 25(1)(a) of the FOI Act for an agency to refuse access to documents if they are considered to be exempt. Section 6(1) of the FOI Act defines an exempt document as a document referred to in any one or more of the provisions of Schedule 1 to the FOI Act.
The 7 items of your original application and your appeal of the determination of those 7 items are discussed below:
Item I
Copies of all communications, file notes and other related documents, be they received or sent by any medium, including, but not limited to electronic means relating to the applicant's initial request for the NSW Department of Corrective Services of the 15th May 2009 for Freedom of Information Act Application Forms and the Departments reply of the 17th September 2009.
You have been provided with the two documents covered by the scope of your application. There are no other documents.
I apologise that your letter of 15 May 2009 was not responded to promptly.
Item 2
All documents, of any nature, prepared or received at any time by any persons either previously or presently in the employ of the NSW Department of Corrective Services concerning the NSW Police Investigation in November 2001 to August 2006 into an offence said to have been committed by the applicant between November 2001 and May 2002 at the Long Bay Jail.
From the response in your letter received on 3/2/10, I understand that you are not appealing the determination regarding documents 1 and 2. I note that documents 1 and 2 are the same as documents 11 and 12, which were covered by the scope of your application 06/07-169.
Further I note that the scope of application 06/07-169 (which was the subject of an internal review in April 2007) covered documents prepared by Officer Donaldson. Another search was undertaken and no documents were located. In particular, I note your comments in your recent letters regarding the reports written by Officer Donaldson. I have been advised by the Corrections Intelligence Group (CIG) that Officer Donaldson wrote his reports whilst at the Metropolitan Medical Transient Centre (MMTC) which has since closed. Neither CIG nor Corporate Records has been able to locate the archival material for the intelligence office of the MMTC. Accordingly, I advise that the original reports and any other related documents are lost. Nevertheless, I can advise that the contents of the original reports were incorporated into document 1, also known as, information report 0033.02 [which has been exempted under clause 4(3B)]. Pursuant to section 25(3) of the FOI Act, I decline to give any further details regarding document 1.
Item 3
Copies of any recordings made in any medium, at any time, made by any persons either previously or presently in the employ of the NSW Department of Corrective Services concerning the NSW Police Investigation in November 2001 to August 2006 into an offence said to have been committed' by the applicant between November 2001 and May 2002 at the Long Bay Jail.
Another search was undertaken and no documents were located. See search comments for Item 2.
Item 4
A list of all items that may exist covered by items 2-3 above, that exemption is claimed from disclosure.
No such documents exist. Under the FOI Act, agencies are not required to create documents.
Item 5
Copies of all communications, of any kind, between the servants and agents of the NSW Commissioner for Police and the NSW Department of Corrective Services concerning the provision of items covered by items 2-3 above.
Another search was undertaken and no documents were located. See search comments for item 2.
Item 6
Copies of all documents prepared at any time by any persons in the employ or associated with the NSW Department of Corrective Services, (including, but not limited to the Serious Offenders Review Council), concerning the applicant's complaint to the Minister for Prisons in 2008 alleging misconduct by Members of Staff of the NSW Department of Corrective Services at the Parklea Correctional Centre.
Documents 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 were identified as being located in response to item 6 of your application and were partially or fully exempted/denied. The scope of your internal review application appears to include only documents 3 and 6. Document 3
I understand that you have not asked for the determination of this document to be reviewed. I have not reviewed the entire document but nevertheless, I have released extra material on page 208. A new copy is enclosed.
Upon examination of this document I can see that the material that was exempted under clause 4(1)(e) had been identified on your copy. However, I note that information was not provided on your copy of document 3 to identify the clause/section applied to the remaining "blanks". I apologise for this oversight.
You will note that pages 208 to 218 have had material deleted under section 25(1)[c) of the FOI Act. That section was reproduced at the end of the determination letter. The determination letter described the coud transcripts from which excerpts had been taken for use in document 3. Those excerpts had been deleted under section 25(l)(c).
The remaining material in document 3 was exempted under clause 6(1) of Schedule 1 to the FOI Act.
Document 6
This document is partially exempted. I consider that the exempted material would be privileged from production in legal proceedings on the grounds of legal professional privilege. Accordingly, I have exempted the material under clause 10(1) of Schedule 1 to the FOI Act.
Item 7
Classification documents prepared by the servants and agents of the NSW Department of Corrective Services.
From the response in your letter received on 3/2/10, I understand that you believe that the LSI-R that was referred to on page 220 of the SORC Minutes of 21 April 2009 should have been included in the scope of your application. I have examined the SORC Minutes and note the reference to the LSI-R on page 220 but also note that on page 221 the LSI-R is not one of the documents listed under the heading "MATERIALS ATTACHED". If the LSI-R had been attached to the Minutes of 21. April 2009, it would have been included in the scope of your application. Accordingly, for the purposes of this review I have not obtained a copy of the LSI-R and made a determination of that document.
If you would like a determination to be made regarding the LSI-R, you will need to lodge a new application for that document. However, I advise that applicants are always denied access to copies of LSI-Rs, as they are psychometric instruments.
The Junee contract issue
The Respondent's determination did not address an item that was included in Mr Potier's original application. That item ("the Junee contract issue") requested:
2. A copy of all contracts of any nature and associated documentation that are currently binding between the NSW Department of Corrective Services and those responsible for the running and administration of the Junee Correctional Centre in the State of New South Wales.
It seems that the reason for this exclusion of the Junee contract issue was that Mr Potier had failed to respond to correspondence from the Respondent in which clarification was sought regarding that request. I am satisfied that Mr Potier failed to respond to that correspondence because he did not receive it. That being the case, I am satisfied that the item falls within the scope of this application.
Mr Potier was not satisfied with the internal review determination and he applied to the Tribunal for external review.
Preliminary Issues
The Respondent filed written submissions in support of its case. Mr Potier has taken issue with some of the arguments that Ms Singer has presented on behalf of the Respondent and has raised several matters for determination as preliminary issues. Those matters concern paragraphs [27], [37], [39], and [46] of the submissions. For completeness, I include those and surrounding paragraphs (citations omitted):
Claims by the Applicant of Inadequate Search
26. In letters to the Respondent the Applicant has repeatedly complained that the Respondent's search for documents falling within the scope of his application was inadequate. The Applicant has inferred that the Respondent is deliberately withholding certain documents. Nonetheless, the Applicant has not provided any probative evidence in support of that allegation.
27. In the decision of Administrative Decisions Tribunal Appeal Panel v Director- General, Department of Commerce & Ors [2008] NSWCA 140 (" the Commerce decision "), the Court of Appeal determined that the jurisdiction of the Tribunal conferred by s 53 of the Act does not extend to a review of the adequacy of searches undertaken by an agency in response to a request for access to an agency's documents made pursuant to sections 17 and 18 of the Act.
28. In the Commerce decision , Beazley JA held that a statement by an agency that a document does not exist, or that it does not have a document, cannot be construed as a refusal to give access to a document. Her Honour held (at [61]):
[an] agency is statutorily required to make a determination in relation to the application. There are, relevantly for present purposes, only two available determinations that may be made: to grant access or to refuse access. A determination to refuse access may be made on one or more of the bases specified in section 25. The section, properly construed, does not permit other circumstances to be taken into account.
29. The Commerce decision concerned a determination by an agency that it held particular documents, with the implication being that other documents sought under the Act were not held. The decision makes it clear that the formation of a view by a relevant officer that there are no documents, or no others beyond those which have been already provided, is merely an aspect in the consideration of an application and not a "determination"' for the purposes of section 24(1).
30. In McGuirk v Attorney General of NSW [2008] NSWADTAP 81, the Appeal Panel advanced its view that the Court of Appeal's conclusion in the Commerce decision was "clear and unequivocal in its conclusion" and at paragraph [14] stated:
"That conclusion was that, regardless of the reason for a determination by a Minister or an agency (under s 28(1) (b)) that it does not hold a document, that determination is not reviewable by the Tribunal."
31. In Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86, the Appeal Panel reiterated that the Tribunal has no jurisdiction to look beyond the agency's assertion that it had given full access to the only document located.
32. The Act envisages, and the Respondent acknowledges, that an agency may need to take appropriate steps before it can determine whether to refuse or grant access to a document falling within the terms of the application, which are documents held by the agency. The Respondent submits that there is no explicit provision in the Act permitting the Tribunal to review the steps taken in the process of considering an application beyond the power identified in section 24.
33. Consequently, those steps taken by the Respondent to locate and identify the documents, e.g. searching the agency's files, contacting different branches of the agency, locating the relevant documents and deciding which of the documents located fall within the scope of the Applicant's application are not available for review. As such, the Tribunal can only review the agency's determination to grant or refuse access to particular, identified documents.
34. Further support of this submission is provided by Judicial Member Pearson in Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT:
The respondent has provided access to what it says are the only documents that fall within the scope of the applicant's request for access. The applicant's contention that there must be more documents is not a determination reviewable under section 53. In the absence of jurisdiction, the appropriate course is to dismiss the application.
35. In accordance with the decisions cited above, the Respondent submits that the Tribunal does not have the jurisdiction to order the Respondent to undertake a further search, despite the Applicant's views.
36. In relation to the Applicant's request for documents concerning communications with the NSW Police, the Respondent is not responsible for witness statements obtained in the course of a police investigation or by police or staff of the Director of Public Prosecutions in connection with the prosecution of accused persons. Any witness statement or other document, that a correctional officer may have provided to a police officer or to a member of the staff of the Director of Public Prosecutions in the course of a criminal investigation is not a document of the Respondent.
37. If the Applicant believes that NSW Police or the Director of Public Prosecutions possess documents that the Respondent has been unable to locate, it is open for him to make freedom of information applications to those agencies. To the extent that he considers that such documents may be relevant to proceedings in any court he should seek legal advice as to his entitlement to have the relevant court issue a subpoena for the documents in question.
38. As a general matter, it is submitted that the Applicant's complaints should be carefully scrutinised, as some of the documents within the FOI application have already been dealt with by the Tribunal.
39. In this regard, two documents covered by the scope of the application in relation to Officer Donaldson have been denied under clause 4(3B) of Schedule 1 of the Act as the documents were created by the Corrections Intelligence Group of the Respondent in the exercise of its functions, including the collection, analysis and/or dissemination of intelligence. A decision in regard to the status of these documents has already been made in Potier v Department of Corrective Services [2008] NSWADT 278.
Access to publicly available documents: the Junee contract
40. "publicly available" has been taken to mean "any information that you reasonably believe is lawfully made available to the general public" from:
1) Federal, state or local government records;
2) Widely distributed media; or
3) Disclosures to the general public that are required to be made by federal, state or local law.
41. In relation to publicly available documents, section 25(1) states that if it is a document that is usually available for purchase, or if it is a document that genuinely forms part of the library material held by the agency, the Respondent may refuse access under the Act.
...
43. Section 25 also applies to documents that are available to members of the public free of charge, under a general policy of public access, and in accordance with section s25(1)(bl), which states that if a document is available for inspection in accordance with an agency's policies and practices, the Respondent is entitled to refuse access:
(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.
44. Section 15 of the Act requires that certain agency documents are available for inspection or purchase; section 15A stipulates that government contracts must be published, citing the Internet as the place or mode of publication, and provides specifics at sub-section 7, as follows:
(7) The information required to be published under this section in relation to a contract:
(a) is to be published on the internet website called nsw.gov.au (or such other internet website authorised by the Premier for the purposes of this section) and may be published in such other manner as the responsible Minister for the agency may approve, and
(b) is to remain on that internet website:
(i) for at least 30 days, or
(ii) until the project to which the contract relates is complete, the goods and services concerned have been provided under the contract, the term of the lease has expired or the real property has been transferred, whichever is the greater period. tes is complete, the goods and services concerned have been provided under the contract, the term of the lease has expired or the real property has been transferred, whichever is the greater period.
...
46. Accordingly, certain information is routinely made available by government agencies as a result of legislative requirements. The Respondent submits that if one interprets sections 25, 15 and 15A together, the resultant analysis demonstrates that the Act provides a mechanism through which a person can apply to seek access to such information, but only where the material is not otherwise made available. The Act does not provide for any exemption which concerns the degree of difficulty, which an applicant may experience in accessing the document in question.
47. Higgins JM stated in [ McGuirk v Commissioner of Police. NSW Police [2008] NSWADT 328], in relation to documents available to all members of the public,
I am satisfied that this constitutes availability for inspection in accordance with the agency's policies and practices and the respondent is entitled to refuse access to the document.. .
48. The Respondent submits that it has fulfilled its statutory obligations and has clearly established policies and practice for public access to documents, that being the Internet, in accordance with section 15A(7). As such, the Respondent is entitled to refuse access to the contract under the Act for the JCC contract, had it remained within the scope of the application.
49. The Respondent further submits that an agency may refuse to provide any document under the Act if it is publicly available, and can be accessed without resorting to an application under the Act.
Mr Potier has provided submissions in relation to these issues.
In reference to the Respondents submissions at paragraph [27], he contends that not too much reliance should be placed on the Commerce decision . In his submission, the Commerce decision is applicable where the document is not known to exist, but a general search is required. However, he submits that where the document is known to exist but the Respondent has searched inadequately and consequently does not produce it, then the Tribunal retains the right to make a finding of inadequate search. He invites the Tribunal to make such a finding.
In reference to the Respondent's submissions at paragraphs [36] - [37], he contends that the Respondent is fundamentally wrong at law.
He says that the matter is simple: if Officer Donaldson outside his employment and place of work has reason to prepare statements then they are outside the scope of the FOI Act. However, he submits that if Officer Donaldson was employed as a corrections officer and if during his allotted tasks he became involved in certain matters involving Mr Potier as an inmate and this then resulted in him preparing documents and statements. They are the property of the Respondent and fully disclosable. He says that that is the case here.
Mr Potier asserts that he is not constrained as to the method he employs to obtain information, provided that it is within the application. He invites the Tribunal to make a ruling on the matter. He also invites the Tribunal to question why the Respondent might be so reluctant to produce this material.
With respect to paragraph [39] of the Respondent's submissions Mr Potier argues that the FOI application is not just in relation to Officer Donaldson's documents but to all documents. He invites the Tribunal to make a ruling that the Respondent is being, firstly, less than honest in its dealings with these matters and secondly, it is in contempt of the Tribunal.
With respect to paragraph [46] of the Respondent's submissions Mr Potier submits that the Respondent's response that he can obtain material elsewhere but at the same time denying him the ability to obtain it, is beneath contempt. He submits that it is the most despicable abuse of power and should not be tolerated by any judicial authority and he invites the Tribunal to make such a finding.
Discussion
Sufficiency of search
In my view, the question of the Tribunal's jurisdiction in relation to assertions that an agency has failed to search for documents was settled by the Court of Appeal in the Commerce decision . I agree with the view expressed by the Appeal Panel in McGuirk v Attorney General of NSW [2008] NSWADTAP 81 that is cited above. Regardless of the reason for the Respondent's determination that it does not hold any other documents that fall within the scope of Mr Potier's request, that determination is not reviewable by the Tribunal.
It follows that Mr Potier's argument must fail.
Documents concerning communications with the NSW Police
In paragraph [36] of her submissions Ms Singer referred to witness statements or other documents that a correctional officer may have provided. The internal review determination limited the search to documents prepared by Officer Donaldson. It then concluded that a search was undertaken and no documents were located. For the reasons given above, it is my view that that determination is not reviewable by the Tribunal. This is the case notwithstanding the fact that the Respondent has interpreted the request narrowly.
It follows that Mr Potier's argument must fail.
However, I note that Mr Potier had not limited the scope of his request to documents prepared by Officer Donaldson. I also note that I agree with the substance of Mr Potier's submission to the extent that I agree that a document held by an agency that is within the scope of an FOI request will be disclosable unless it is exempt under the FOI Act. That will be the case regardless of the origin of the document.
The Junee contract issue - Publicly available documents
With respect to paragraph [46] of the Respondent's submissions I agree with Ms Singer's statement of the legal principles in regard to publicly available documents. I accept that the Junee contract is available for inspection in accordance with the Respondent's policies and practices. It follows, in my view, that the Respondent has discretion under section 25 of the FOI Act to refuse access to the document.
The Respondent also has discretion under section 25 of the FOI Act to grant access to the document. The Tribunal has the same discretion.
In my view the circumstances of this matter are significantly different from those in McGuirk v Commissioner of Police. NSW Police [2008] NSWADT 328. In this matter, the Respondent has control over whether or not Mr Potier is able to obtain access to the document. That is a relevant factor to be considered in regard to the exercise of discretion under section 25.
In my view, the discretion should be exercised in favour of Mr Potier. In the circumstances, the appropriate order is to remit Mr Potier's request for access to the Junee contract for redetermination by the Respondent with the recommendation that Mr Potier be given access to the document. The redetermination is to be made within 28 days of this decision. This order will allow the Respondent to determine the method by which access to the Junee contract is to be given.
The matter should then be listed for a further planning meeting.
Orders
1. The matter is remitted for redetermination by the Respondent with respect to Mr Potier's request for access to the Junee contract with the recommendation that Mr Potier be given access to the document. The redetermination is to be made within 28 days of this decision.
2. The determination is otherwise affirmed in relation to the remaining preliminary issues.
3. The matter is listed for further planning meeting at 9.30 am on Tuesday 3 May 2011
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Decision last updated: 16 March 2011
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