Retain Beacon Hill High School Committee Inc v Department of Education & Training (No 2)

[2007] NSWADT 76

CITATION:	Retain Beacon Hill High School Committee Inc v Department of Education & Training (No 2) [2007] NSWADT 76
DIVISION:	General Division
PARTIES:	APPLICANT Retain Beacon Hill High School Committee Inc RESPONDENT Department of Education & Training
FILE NUMBER:	063106
HEARING DATES:	24 October 2006 28 March 2007
SUBMISSIONS CLOSED:	28 March 2007
DATE OF DECISION:	5 April 2007
BEFORE:	Handley R - Acting Deputy President
CATCHWORDS:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Beesley v Commissioner of Police [2000] NSWADT 52 Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 Hermeon v Commissioner of Police, NSW Police Service [2002] NSWADT 201 Miriani v Commissioner of NSW Police [2005] NSWADT 187 Patsalis v Commissioner of Police, NSW Police Service [2003] NSWADT 213 Retain Beacon Hill High School Committee Inc v Department of Education & Training [2006] NSWADT 351
REPRESENTATION:	APPLICANT R Cianfrano, agent RESPONDENT M Dalla Pozza, solicitor
ORDERS:	The decision dated 14 February 2006 is affirmed.

REASONS FOR DECISION

1 This matter involves an application by Sue Covey, the Secretary of the Retain Beacon Hill High School Committee Incorporated (‘the Committee’), acting on behalf of the Committee, to review a decision made by the Department of Education and Training (‘the Department’) to provide access to documents, on the ground that not all documents have been identified and released.

Background

2 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 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”.

3 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 ...”

4 The Committee has also made other applications to various NSW Government departments/agencies relating to the site of the former Beacon Hill High School (‘BHHS’). The closure of BHHS and the proposed sale of the site by the Department have attracted significant community attention.

5 The Committee states that when no reply was received to its fourth application to the Department, it treated the lack of response as a deemed refusal and, on 24 January 2006, requested an internal review. On 14 February 2006, the Deputy Director-General (Corporate Services) of the Department decided to provide access in full to various documents identified in the search for documents arising from the application. On 8 March 2006, the Committee applied to the Tribunal for a review of this decision. 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”.

6 In the course of the hearing on 24 October 2006, a preliminary 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’. On 12 December 2006, the Tribunal made the following decision on this issue:

“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.”
This decision is reported as Retain Beacon Hill High School Committee Inc v Department of Education & Training [2006] NSWADT 351.
7 At the hearing on 28 March 2007, the principal issues for determination were whether the Tribunal had jurisdiction to entertain an application for review of whether the Department’s search for documents was sufficient and, if so, whether that search was sufficient. The Committee contended that the documents produced by the Department in response to their application were “deficient and incomplete”.

Oral Evidence

8 The Department provided statements from two witnesses, each of whom were called to give oral evidence.

9 Dr Anthony Bendall, the Manager, Freedom of Information and Privacy of the Department, provided a statement dated 3 October 2006. Dr Bendall stated that one of his principal duties is to co-ordinate the Department’s response to FOI applications. He noted that following recommendations by the NSW Ombudsman in October 2002, the Department made improvements in its procedures for handling FOI applications.

10 Dr Bendall stated that “the Department is the largest organisation in NSW”. The current procedure requires that on a receipt of an application, he, as Manager of the FOI and Privacy Unit, reviews the subject matter of the application and determines which ‘Portfolio’ within the Department is most likely to hold documents. The Executive Director of that Portfolio is designated as the ‘determining officer’ of the application. In this instance, Dr Bendall nominated Martin Bowles, then the Deputy Director-General, and responsible for the Corporate Services Portfolio, as the determining officer, because that Portfolio deals with the sale of departmental property. Dr Bendall nominated Michael Cush, General Manager of Asset Management (a Directorate within the Portfolio of Corporate Services that Dr Bendall considered most likely to hold relevant documents), as the officer responsible for undertaking the specific searches for documents.

11 Dr Bendall annexed to his statement the email he sent to Mr Bowles and the Memorandum he sent to Mr Cush on 11 November 2005, including the attached documents setting out instructions as to the procedure to be followed. On 28 November 2005, Mr Cush responded with a memorandum identifying all relevant documents located in the course of the searches conducted, with recommendations as to those documents considered to be exempt from disclosure pursuant to Sch 1 of the FOI Act. [Despite these recommendations, all documents identified were released in full to the Committee.] Both Mr Bowles and Mr Cush have now left the Department.

12 Dr Bendall stated that on 11 November 2005, pursuant to departmental policy, he also emailed the senior officers responsible for the four other Portfolios within the Department seeking any relevant documents that might be held by those Portfolios. He received written responses from two officers and verbal responses from the other two. The written response from one Portfolio (from Chris Ryan, Executive Director of Strategic Relations and Communications) identified and attached three relevant documents, namely emails from Ms Covey. [Copies of these emails were provided to the Committee.]

13 In oral evidence, Dr Bendall said the Office of the Minister of Education is a separate agency and not covered by the Committee’s FOI application. However, normally, documents considered by the Minister concerning a particular matter are returned to the Department.

14 Dr Bendall said on reading the FOI application, which he interpreted as covering all documents concerning the sale and transfer of the land of the former BHHS, he did not form the view that it required clarification. Copies of the (scanned) application were sent to Mr Bowles and the other four senior Portfolio officers attached to his emails dated 11 November 2005. In relation to the description “administrative documents” used in the FOI application, Dr Bendall said that most documents held by the Department would fall into this category. Dr Bendall was shown a copy of the document “New Horizons: A plan to improve education and training on the Northern Beaches. Information for staff, students, parents and the community”, released on 26 June 2000. He said he first saw this document about six weeks ago.

15 Mr Phillip Peace, the Director, Capital and Infrastructure Finance, Finance Administration Directorate of the Department, provided a statement dated 6 October 2006. At the time the FOI application was made, Mr Peace was Director, Asset Planning and Support in the Asset Management Directorate. He stated:

“4. The Asset Management Directorate organises its files in the following ways: the TRIM electronic records management system records electronically the titles of registered files and the registering of documents including correspondence, submissions and the like. Soft copies of documents within the file are contained within the internal shared drive of the Asset Management Directorate and hard copies of documents are retained on registered files.

5. Upon receiving notification of the FOI application from Dr Anthony Bendall, staff in the Asset Management Directorate conducted a search of TRIM and the internal shared drives. With the information uncovered by those searches, staff then conducted hard copy searches of the files.”

16 Mr Peace noted that the Committee’s FOI application referred on three separate occasions to the “sale and transfer” of BHHS. The application did not request ‘all’ documentation relating to BHHS, nor documentation relating to the closure of BHHS. Mr Peace noted that BHHS closed in late 2002. He and the other officers involved in the search process therefore formed the view that it was only documents related to the sale and transfer of the former BHHS site that were relevant to the application. A search of the Directorate’s records was conducted and the relevant documents were provided to the FOI Unit. Mr Peace stated:
“To the best of my knowledge, such documents were provided in full. For the most part, these documents were contained in separate files dealing specifically with the disposal of the former school site.”
17 In cross-examination, Mr Peace acknowledged that some of the documents do, nevertheless, relate to the closure of the school. He said he had no knowledge of any documents concerning consultations between the Department and the Department of Health over the future use of the site, and he was not aware of the site being advertised as a possible hospital site. Among the documents released to the Committee is a letter to the Minister from Warringah Golf Club, dated 20 May 2005, referring to the BHHS site. Mr Peace said this letter would have been referred to the Department by the Minister for a response.

18 Mr Peace was also asked about copies of letters released to the Committee between the Department and its solicitors over the sale and transfer of the site, which refer to the contract of sale, and why a copy of the contract or draft contract was not included in the documents released. Mr Peace responded that the draft contract and contract could have been held by the Department’s solicitors, Hunt & Hunt. Although reference was made to the draft contract in a number of the letters, there is nothing to indicate that a draft contract accompanied any of the letters. Mr Peace said if there were any valuations relating to the sale of the site these would have been included with the documents released.

Documentary Evidence

19 Ms Covey provided a statement dated 23 October 2006. This sets out the background to the closure of BHHS and the proposed sale and transfer of the site, the action taken by the Committee and others in relation to this, and information which has come to light. The statement also refers to the Development Applications made to Warringah Council in respect of the site and the subsequent referral of the matter to the Minister for Planning for approval.

20 The Committee has also provided copies of a number of documents that the Committee submits have not been provided to it in response to the FOI application under review, and which are relevant to the issue of the adequacy of the Department’s search in its response to the FOI application.

21 The Department has provided copies of the documents released to the Committee in response to the FOI application, and a copy of a letter dated 22 April 2004 from the NSW Ombudsman to Ms Covey concerning her dissatisfaction with the Department’s determinations of her FOI applications. The letter concludes:

“The Department has now apparently identified all documents subject to your FOI application. With this in mind and considering the Department’s introduction of improved administrative procedures in this area unless you can provide compelling reasons to the contrary, I can see no utility in making further inquiries with the Department about your complaint.”
The Committee’s Submissions

22 The Committee submits that not all relevant documents were identified and released because of the Department’s misinterpretation of the wording of the FOI application. The application seeks access to 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 ...

The documents are to include internal working administrative documentation ...”

23 The Committee notes that in his email messages dated 11 November 2005 to Mr Bowles and to the senior officers of the other four Portfolios and in his Memorandum to Mr Cush of the same date, Dr Bendall said the application seeks access to “documents relating to the proposed sale or transfer of Beacon Hill High School from 1 January 2005 to 7 November 2005.” The Committee contends the emails and Memorandum described the application too narrowly and did not refer to the broader description contained in the application, quoted above. As a result, not all the relevant documents were identified in the search and, consequently, not all relevant documents were released to the Committee. If the search of TRIM does not use the appropriate words, then relevant documents will not be identified.

24 The Committee submits that if there was any misunderstanding by departmental officers about the scope of the FOI application, the Department should have contacted the Committee to clarify the application, given its obligation under s 19 of the FOI Act to take reasonably practical steps to assist an applicant to clarify an application that is unclear. The Department did not do so.

25 On 29 August 2006 and 28 March 2007, the Committee filed copies of various documents that it contends should have been provided in response to the FOI application. Mr Cianfrano noted that no copies of contracts, valuations or documents concerned with the Development Application have been released. He submitted these should have been captured in the time frame covered by this application. In particular, he said it is not credible for the Department to suggest that it does not have any copies of the draft contract for the sale of the BHHS site on file. He noted that Hunt & Hunt’s letter dated 29 March 2005 (amongst the documents released to the Committee in response to the application) advises that contracts for the sale of the land to Landcom were exchanged on 29 March 2005.

26 The Committee submits it has met the threshold set out by the President in Cianfranov Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 (‘Cianfrano’) and, as a result, the onus is on the Department to satisfy the Tribunal that it has made the appropriate searches for the documents in question.

The Department’s Submissions

27 Mr Dalla-Pozza, for the Department, submitted that the Tribunal does not have jurisdiction to entertain an application for a review of whether a sufficient search for documents was conducted. He noted that although this submission is not consistent with the Tribunal decisions in Beesley v Commissioner of Police [2000] NSWADT 52 (‘Beesley’) and Cianfrano, the decision in Cianfrano is under appeal and the law remains unsettled. Mr Dalla-Pozza submitted that the text and structure of the FOI Act clearly indicate that Parliament intended that a notification under s 28(1)(b) (that the agency does not hold such a document) is not reviewable as a determination. Similarly, where the agency determines that it holds specified documents, the implicit notification that it does not hold any other documents is not a determination.

28 Mr Dalla-Pozza submitted that contrary to the reasoning in Beesley:

“the logic of the drafting of the FOI Act is that where no documents exist a request is not refused. The request cannot be actioned. If no documents exist access cannot be either granted or refused.”
29 With regard to the decision in Cianfrano , Mr Dalla-Pozza submitted that the approach taken by the President, O’Connor DCJ, to construe the failure of an agency to produce documents as a ‘deemed refusal’ to which s 24(2) of the FOI Act applies (a failure to determine an application within 21 days of receipt is deemed to be a refusal), is incorrect. The statement by an agency that it holds no further documents is more logically and easily characterised as a finding under s 28(1)(b). Mr Dalla-Pozza submitted that there are compelling reasons why the decisions in Beesley and Cianfrano should be overruled. The Tribunal is not an appropriate body to conduct an investigation into whether a search has been adequate. This is more appropriately a matter for the Ombudsman.

30 Turning to whether a sufficient search was conducted in this case, Mr Dalla-Pozza submitted that the Tribunal should adopt a “fair reading approach” in determining the scope of the application. Both Dr Bendall and Mr Peace gave evidence that that they had no reason to suppose anything other than that the documents to which access was sought under the application were those relating to the sale and transfer of the BHHS site. Mr Dalla-Pozza submitted that the use of the words “include” and “etc” in the description of documents in the application did not give rise to any ambiguity.

31 Mr Dalla-Pozza submitted that in determining whether a search is sufficient, two questions must be considered: first, whether there are reasonable grounds to believe the requested documents exist and are documents of the agency, and, second, whether the search efforts made by the agency have been reasonable in all the circumstances of a particular case (Hermeon v Commissioner of Police, NSW Police Service [2002] NSWADT 201, at par 18). Mr Dalla-Pozza noted that in relation to the first question, in Cianfrano, the President said that the applicant must put some credible material or submissions before the Tribunal that an arguable case of that kind exists. In relation to the second question, key factors include the clarity of the request, the organisation of the agency’s recordkeeping system and the ability to retrieve documents by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant (Miriani v Commissioner of NSW Police [2005] NSWADT 187, at par 30).

32 In Patsalis v Commissioner of Police, NSW Police Service [2003] NSWADT 213 (‘Patsalis’), at par 63, Judge O’Connor said the standard of search the agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in the recordkeeping processes or in the agency’s searches does not necessarily lead to the conclusion that the searches are not reasonable or sufficient, but the Tribunal must be satisfied that the agency’s determination is a fully responsive one (Cianfrano at 65).

33 Mr Dalla-Pozza submits the Committee has failed to put any credible evidence or submissions before the Tribunal that an arguable case exists. The fact that the Department has produced a large number of documents in response to the application is a prima facie indicator that a thorough search was undertaken. An inspection of the documents the Committee has produced to show that the search was not sufficient indicates that these are not within the scope of the application because either they are not concerned with BHHS, or they are not concerned with the sale and transfer of the BHHS site – for example, because they are concerned with the closure of BHHS.

34 With regard to whether the searches undertaken by the Department were reasonable, Mr Dalla-Pozza submitted that Dr Bendall’s evidence establishes that reasonable searches were made and the appropriate procedures were complied with. Dr Bendall emailed the appropriate persons to check whether relevant documents were held, and 87 pages of documents were produced as a result. It should be inferred from this that the search was reasonable. Mr Peace’s evidence is that both electronic and hard copy searches were conducted. Even if one or two documents were missed, this does not mean that the search was not reasonable provided the agency’s response was fully responsive. With regard to the contract for the sale of the former BHHS site, Mr Peace’s evidence is that this was held by the Department’s solicitors, Hunt & Hunt, and not by the Department. None of the documentation produced by the Committee establishes that the Department held a copy of the contract.

Discussion and Findings

35 Pursuant to s 16(1) of the FOI Act, “[a] person has a legally enforceable right to be given access to an agency’s documents”. Section 6(1) defines ‘agency’ as including a Government Department. Applications must be in accordance with s 17 (in writing, accompanied by such application fee as the agency may determine, containing “such information as is reasonably necessary to enable the document to be identified”, etc) but, pursuant to s 19(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.”
36 The first issue for determination is whether the Tribunal has jurisdiction to entertain an application for review of whether the Department’s search for documents was sufficient. I note the Department’s submission that the Tribunal does not have such jurisdiction for the reasons set out above. As Mr Dalla-Pozza pointed out, the decision in Cianfrano has been appealed to an Appeal Panel which has, in turn, referred to the Supreme Court, pursuant to s 118 of the ADT Act, two questions of law: first, whether a letter from an agency that it does not hold documents requested in a FOI application, constitutes a notification under s 28(1)(b) of the FOI Act; and, second, whether a notification under s 28(1)(b) that an agency does not hold a document is a determination which the Tribunal has jurisdiction to review. The Supreme Court has not yet published its decision on this referral.

37 In my view, the appropriate course is for me to proceed on the basis that the principles of law set out in the President’s decision in Cianfrano are correct. Should I be mistaken in this view, then my decision can be challenged by way of an appeal to the Tribunal constituted by an Appeal Panel under s 113 of the ADT Act.

38 The second issue, assuming the Tribunal has jurisdiction to entertain the application for review, is whether the Department’s search for documents in response to the Committee’s FOI application was sufficient. The Committee contended that the documents produced by the Department in response to their application were “deficient and incomplete”.

39 In Cianfrano, the President of the Tribunal reaffirmed that where (1) the applicant places credible evidence or submissions before the Tribunal in support of an assertion that the agency has failed to conduct a thorough search for documents to which access was sought in the FOI application, and (2) the Tribunal is satisfied that there is an arguable case that the agency has, therefore, failed to properly determine the application and that, as a consequence, there has been a deemed refusal of the application (section 24(2) of the FOI Act), then (3) the Tribunal may give directions of a kind that will enable it to determine whether a deemed refusal has taken place.

40 The Committee contends that not all relevant documents were identified and released because the Department misinterpreted the wording of its FOI application. I have examined the wording of the FOI application. The stated subject matter of the application is as follows:

“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.

The documents are to include internal working administrative documentation ... The particular documents the applicant is seeking are all in relation to the proposed transfer or sale etc, NSW Government High School defined as, Beacon Hill High School (BHHS) Beacon Hill.

These documents are to include the following ...[file notes, records etc]

The applicant specifically seeks the administrative documents in relation to the proposed sale of NSW Government High School defined as, Beacon Hill High School (BHHS) Beacon Hill ...

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.

The documents seek access to all internal working documents and correspondence etc, to any proposed sale etc, and the proposed transfer etc, of 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 ...”

41 The proposed sale or transfer of the “NSW Government High School defined as, Beacon Hill High School (BHHS) Beacon Hill” is mentioned on five occasions. In my view, a fair reading of the application leads the reader to assume that the documents to which access is sought are those for the period 1 January 2005 to 7 November 2005 which relate to the proposed sale or transfer of BHHS. Both Dr Bendall and Mr Peace gave evidence that they interpreted the application in this way, and I am not satisfied that there is any ambiguity in the wording which would give rise to an obligation on the part of the Department under s 19(1) of the FOI Act to seek clarification of the application with the Committee. In my view, the Department properly directed the search to documents related to the proposed sale or transfer of BHHS. As to the type of documents encompassed, I note that Dr Bendall sent a copy of the scanned FOI application to the senior officers responsible for the five Portfolios in the Department, and I am not satisfied that any particular type of document was missed in the search.

42 I note, however, that a fair reading of the words ‘proposed sale and transfer’ should, in my view, include the disposal of the site because this is what the proposed sale and transfer is intended to achieve. The words do not cover such matters as the closure of the school, information about student enrolments, TAFE facilities in the area and, more generally, public education.

43 The Committee has filed or referred to various documents that it says are evidence that the search for and identification of relevant documents in response to the application was inadequate. Attached to the Committee’s submissions filed on 29 August 2006 are documents or references to documents that the Committee contends should have been included. I have examined these.

44 Document 1 comprises two letters to Ms Covey from the Department’s FOI unit in relation to her (the Committee’s) FOI application. The Department contends and I accept that these letters relate to the FOI process itself and not to the subject matter of the application, which is the proposed sale and transfer of BHHS. Document 2 is a fax dated 11 January 2005 with attached tables and graphs regarding enrolments in secondary schools (including BHHS) in the Northern Beaches area of Sydney. It does not appear to be relevant to the proposed sale and transfer of BHHS. Document 3 is not included, but the submission states that it is a letter from Ann Sharp (a member of the Committee) to the Minister requesting the estimated cost of replacing BHHS. Thus, it may not be specifically relevant to the proposed transfer and sale. The same applies to document 5, also not supplied, a response to document 3.

45 Document 4 is a letter from Ms Sharp to the Minister. This does relate to the disposal of the site, but I note that the Minister’s office is a separate agency from the Department, and whether the document appears on the Department’s file would depend on whether it was referred to the Department for a response.

46 Document 6 is not supplied and, therefore, its content is unknown. Document 7, a letter from the Asset Management Directorate of the Department to Warringah Shire Council, refers to the closure of BHHS and confirms the Minister’s approval of the disposal of the site. In my view, this should have been included in the documents identified and released. Documents 8 and 9 comprise a letter to the Minister from the Federal Member for Warringah, and the Minister’s response. The Department submits this is a request for ministerial intervention and response relating to the use of BHHS as a TAFE facility. In my view, it does not specifically relate to the proposed sale and transfer of the site, although, arguably, I agree that alternative uses for the buildings are relevant to the issue of disposal.

47 Document 10 is a four page submission by the Committee on the future of public education and training in NSW. Although it mentions retaining BHHS, the document is not about the proposed sale and transfer of BHHS. Documents 11, 12 and 13 are correspondence relating to the submission and requesting a meeting to discuss retaining BHHS for public education. As with documents 8 and 9, I agree these documents are, arguably, relevant to the issue of disposal of the BHHS site. With regard to documents 14 to 19, copies of which were not supplied, these appear to be emails and meeting notes that the Committee expect to exist as a result of communications between members of the Committee and departmental officers. I am unable to ascertain the content of those documents and, therefore, whether they fall within the scope of the FOI application.

48 In supplementary submissions filed on 28 March 2007, the Committee provided copies of further documents that it submits are evidence that the search for and identification of relevant documents in response to the application was inadequate. I have examined these. Document A is a copy of the first page of an unsigned contract for the sale of the former BHHS site to Landcom. The Department says there is no evidence that this should be in its files. Mr Peace gave evidence that the draft contract and contract would have been held by its solicitors, Hunt & Hunt. I note that none of the documents released by the Department to the Committee actually indicate that the Department held the contract, although, clearly, its terms were the subject of consultations between the Department and Hunt & Hunt. Whilst I am surprised that a copy of the draft contract was not present in the Department’s files given the tenor of the correspondence between the Department and Hunt & Hunt, it is possible that this was the case. It is also possible that a draft contract held in departmental files does not fall within the time frame of the Committee’s FOI application.

49 As the Department points out, document B is demographic information about the Northern Beaches area and does not refer to the proposed sale and transfer of the BHHS site. Document C is an acknowledgement by a departmental officer of a letter received by the Minister from Ms Sharp concerning the BHHS site, assuring her of a response in the near future. The letter contains no other information relating to the proposed sale or transfer of the site. Document D is a response to Ms Sharp from a departmental officer concerning the closure of the school. It does not refer to the proposed sale or transfer of the site. Document E is a copy of a letter from the Minister to the Federal Member for Warringah concerning representations made on behalf of Ms Sharp. It does not refer to the proposed sale or transfer of the site.

50 Document F is a letter from Ms Sharp to the Minister concerning alternative uses for the BHHS site. It does not refer specifically to the proposed sale or transfer. Document G is a departmental response to Ms Sharp on behalf of the Minister concerning educational facilities in the Northern Beaches area. It does not refer to the proposed sale or transfer of the site. Document H is an extract from Hansard of a question and response in the NSW Legislative Council, which refers to the projected sale of the BHHS site. Documents I and J are the result of an electronic search on question time in the NSW Legislative Council, setting out questions asked on the closure and sale of BHHS and the responses. Documents H, I and J would be within the scope of the FOI application if they were included in a departmental file. There is, however, no evidence to show that they were included.

51 Document K is a departmental letter to Ms Sharp. It makes no reference to the proposed sale or transfer of the BHHS site, and it is also dated 28 November 2005, which is outside the time frame of the request for documents in the FOI application. Document L is a letter dated 5 February 2007, which is outside the time frame of the request for documents. Document M appears to be a Press Release by a member of the NSW Legislative Council, Dr Arthur Chesterfield-Evans. It is dated 22 March 2007 and is, therefore, outside the time frame of the FOI application.

52 I am not satisfied that the documents produced by the Committee provide credible evidence to support the Committee’s assertion that the Department failed to conduct a thorough search for documents to which access was sought in the FOI application. While I am surprised that a copy of the draft contract for the sale of the site to Landcom does not, as the Department claims, appear in the relevant departmental files, I accept that in relation to the time frame covered by the FOI application, this is possible: copies of the draft contract may only have been held by the Department’s solicitors or relate to a time frame not covered by the FOI application. While I have found that other documents are relevant to the disposal of the BHHS site, they are not directly about the proposed sale or transfer of the site and I am not satisfied that these are sufficient evidence to support the assertion that a thorough search was not conducted.

53 The Department has provided evidence from Dr Bendall and Mr Peace about the process undertaken in conducting the search for relevant documents consequent upon the Committee’s FOI application being received. In my view, the steps taken by Dr Bendall to initiate the search for documents were appropriate and reasonable in the circumstances. Mr Peace’s evidence indicates that proper searches were made and the documents identified provided in full.

54 I note the decision in Patsalis, cited by the Department, where, at par 63, the President emphasised that the standard required of the agency is that it should have conducted ‘reasonable’ searches and, pursuant to Cianfrano, at par 65, that the determination is ‘a fully responsive’ one. In my view, while there may have been what I would consider to be minor discrepancies in the outcome of the searches conducted and documents released, I am satisfied that the Department has met its obligation to respond to the Committee’s FOI application. Conversely, I am not satisfied that there is an arguable case that the Department has failed to properly determine the application. Thus, the Department’s search for documents was, in my opinion, sufficient.

Decision

55 The decision dated 14 February 2006 must therefore be affirmed.