Retain Beacon Hill High School Committee Inc v Department of Education & Training

[2006] NSWADT 351

CITATION:	Retain Beacon Hill High School Committee Inc v Department of Education & Training [2006] NSWADT 351
DIVISION:	General Division
PARTIES:	APPLICANT Retain Beacon Hill High School Committee Inc RESPONDENT Department of Education & Training
FILE NUMBER:	063106
HEARING DATES:	24/10/06
SUBMISSIONS CLOSED:	12/06/2006
DATE OF DECISION:	12/12/2006
BEFORE:	Handley R - Acting Deputy President
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Hutchinson v Roads & Traffic Authority of NSW [2006] NSWADT 21 Patsalis v NSW Police (No 2) [2004] NSWADT 185
REPRESENTATION:	APPLICANT R Cianfrano, agent RESPONDENT M Dalla-Pozza, solicitor
ORDERS:	A fair reading of the FOI application at issue in these proceedings is that the Applicant sought access to documents from the Respondent in respect of the period 1 January 2005 to 7 November 2005. This constrains the Tribunal’s jurisdiction in this matter to a review of the Respondent’s internal review decision made in respect of that period.

REASONS FOR DECISION

1 On 8 March 2006, Sue Covey, the Secretary of the Retain Beacon Hill High School Committee Incorporated (‘the Committee’), acting on behalf of the Committee, applied to the Tribunal for the review of a decision, being an internal review of a deemed refusal, made by the Deputy Director-General (Corporate Services) of the Department of Education and Training (‘the Department’) on 14 February 2006, to provide access in full to various documents. The reasons given by the Committee for its application to the Tribunal included that the Committee “believes that not all documents have been released in the FOI application”.

2 At a hearing on 24 October 2006, an issue arose as to the scope of the original FOI application made by the Committee. The Tribunal requested and the parties provided further written submissions on this issue, which the parties asked the Tribunal to determine as a preliminary issue ‘on the papers’.

Background

3 The Committee has made three previous FOI applications to the Department in relation to the closure of Beacon Hill High School, dated 10 October 2003, 8 September 2004 and 28 February 2005. According to the Department, approximately 400 pages were released to the Committee in response to the first application, and the second and third applications were not processed when an advance deposit requested by the Department was not paid. The requests for payment of an advanced deposit has obviously been an irritation for the Committee which submits it has always paid the fees associated with its FOI applications. The second application referred to various documents to which access was sought dated approximately between 2000 and 2004. The third application sought access to “All documents and communications in relation to the closure of Beacon Hill High School from 1 January 2000 to 28 February 2005”.

4 The Committee’s (fourth) FOI application to the Department dated 7 November 2005 stated:

“The applicant is seeking access and copies of internal working documents of the following subject matter:

All internal working administrative documents of all officers subordinate to the Minister of Education and Training and or any other agency and or agent etc. The particular documents are to include all documentation to the proposed sale or transfer etc, of NSW Government High School defined as, Beacon Hill High School (BHHS) Beacon Hill from 1 January 2005 to 7 November 2005 ...

This request for the specific documents is to start from 1 January 2005 to 7 November 2005. This is a continuation of our other FOI applications. Seeking up to date documents on all administrative internal working documents to NSW Government High School defined as, Beacon Hill High School (BHHS) Beacon Hill ...

This FOI application seeks access and documents to all factual administrative material and statistical administrative material etc, particularly of administrative documents of all information and all up dates of documents to November 2005 in relation to any possible sale or possible transfer etc, of the NSW Government High School defined as, Beacon Hill High School (BHHS) Beacon Hill ...”

5 The Committee states that when no reply was received to this fourth application, it treated the lack of response as a deemed refusal and, on 24 January 2006, requested an internal review.

Submissions

6 The Committee submits that the Department interpreted the FOI application incorrectly. The request for documents was in relation to the period 1 January 2005 to 7 November 2005 as “a continuation of our other FOI applications”. The Committee submits that the application therefore covered documents pre-dating 1 January 2005. The Committee submits that if the terms of the application were not clear, then s 19 of the Freedom of Information Act 1989 (‘the FOI Act’) obliged the Department to seek clarification of the application. Section 19(1) states:

“(1) An agency shall not refuse to accept an application merely because it does not contain sufficient information to enable the document to which it relates to be identified without first taking such steps as are reasonably practicable to assist the applicant to provide such information.”
7 The Committee contends that not all documents covered by the FOI application have been disclosed. For example, attached to a Development Application for the Beacon Hill High School site submitted to Warringah Council in August 2006, was a document entitled “New Horizons: a proposal to restructure secondary education provision in the Northern Beaches District” published by the Department in 2000. This document was not provided to the Committee with the documents released by the Department pursuant to the Committee’s first FOI application dated 10 October 2003. Ms Covey raised this matter with the Director-General of Education and Training at a meeting on 13 September 2006. With a subsequent letter to Ms Covey dated 18 September 2006, the Director-General provided copies of a further four documents dating from 2000, which were not provided in response to the first FOI application, including the “New Horizons” document to which Ms Covey had drawn attention.

8 The Department submits the Tribunal’s jurisdiction is limited to reviewing the internal review decision made by the Department and the Tribunal cannot, therefore, entertain an FOI application amended after the Department has finalised its determination. The Department refers to the decision in Hutchinson v Roads & Traffic Authority of NSW [2006] NSWADT 21 (‘Hutchinson’), at par 11 to par 12, where Deputy President Hennessy emphasised:

“11. The Tribunal’s role is to review the agency’s determination and ‘decide what the correct and preferable decision is having regard to the material then before it ...’: s 63(1) of the ADT Act [ Administrative Decisions Tribunal Act 1997] ... Accordingly, if an application for access to documents has not been the subject of a decision by the administrator, the Tribunal itself cannot make a decision on that matter on the basis that the administrator could have made such a decision: Re Hare and Commissioner for Superannuation (1979) 2 ALN N662.

12. The Tribunal’s power is limited to reviewing the decision which the administrator has already made ...”

9 The Department submits that the terms of the FOI application must be read objectively, and such a reading – that of a reasonable person – would interpret the application as only applying to documents created between 1 January 2005 and 7 November 2005, the period referred to in the application. The Department accepts that it has an obligation pursuant to s 19 of the FOI Act to clarify the terms of an application where those terms are unclear. However, there is no such duty in the case of an ostensibly clear application, as is the case here where there is nothing ambiguous about the wording. In Patsalis v NSW Police (No 2) [2004] NSWADT 185 (‘ Patsalis ’), at par 35, Britton JM stated:
“A fair reading of the description provided by Mr Patsalis supports the interpretation adopted by the Respondent’s delegates ... While an agency is required to take reasonable steps [under s 19(1)] to assist an applicant to identify the requested document, this obligation does not extend to second-guessing that the applicant is in fact requesting a different document to that described.”
10 The Department submits that a fair reading of the terms of the FOI application would not construe a passing reference to earlier FOI applications as meaning that those applications are to be treated as included in the present FOI application, especially where the Committee identified the time period 1 January to 7 November 2005 “with a relatively high degree of precision”. The Department notes that in the sentence following that in which the word “continuation” is used, the words “up to date documents” are used, suggesting that the purpose of the application was to ensure the Committee had any new documentation created by the Department.

Discussion

11 While I understand the obvious frustration of the Committee on discovering further documents which it contends should have been released in response to its first FOI application, I am not persuaded by its submission that the coverage of the fourth FOI application, the subject of these proceedings, pre-dates 1 January 2005. In my view, the approach to be followed in construing this document is that adopted by Britton JM in Patsalis. It is clear from a fair and objective reading of the terms of the application that the period in respect of which documents are sought is from 1 January 2005 to 7 November 2005. While there is reference to the application being “a continuation of our other FOI applications”, I do not agree that this incorporates into the application the periods that were the subject of previous applications. Rather, this informs the reader that this is the latest in a series of applications brought by the Committee relating to the closure of Beacon Hill High School.

12 The clear tenor of the FOI Act is that agencies are expected to facilitate FOI applications. The objects of the Act stated in s 3 emphasise the right of members of the public to obtain access to information held by the Government – indeed, pursuant to s 16(1), “A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act”. However, access is to be in accordance with the Act and I am not satisfied that there is any ambiguity in the wording of the application that would impose an obligation on the Department, pursuant to s 19(1) of the FOI Act, to seek clarification of the terms of the application.

13 With regard to the jurisdiction of the Tribunal in this matter, I agree with what Deputy President Hennessy said in Hutchinson. The Tribunal’s jurisdiction is constrained by the terms of the fourth FOI application and the internal review decision which was the subject of the Committee’s appeal to the Tribunal. The Tribunal cannot go beyond that to make a determination on a matter which was not properly the subject of the internal review.

Decision

14 A fair reading of the FOI application at issue in these proceedings is that the Applicant sought access to documents from the Respondent in respect of the period 1 January 2005 to 7 November 2005. This constrains the Tribunal’s jurisdiction in this matter to a review of the Respondent’s internal review decision made in respect of that period.