Retain Beacon Hill High School Committee Inc v Landcom

[2006] NSWADT 108

CITATION:	Retain Beacon Hill High School Committee Inc v Landcom [2006] NSWADT 108
DIVISION:	General Division
PARTIES:	APPLICANT Retain Beacon Hill High School Committee Incorporated RESPONDENT Landcom
FILE NUMBER:	053283
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	03/02/2006
DATE OF DECISION:	04/13/2006
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	BY v Director-General, Attorney General’s Department (No 2) [2003] NSWADT 37 FA v Commissioner of Police, NSW Police Service [2003] NSWADT 196 Re Boyle and Australian Broadcasting Corporation (22 February 1993, AAT No 8565) Re Robinson and Department of Foreign Affairs (1986) 11 ALN N48
REPRESENTATION:	APPLICANT R Cianfrano, agent RESPONDENT A Johnson, solicitor
ORDERS:	The Respondent’s applications for an order for the return of documents and for a non-publication order are denied.

Background

1 On 17 August 2005, Sue Covey, the Secretary of the Retain Beacon High School Committee Incorporated (‘the Committee’), acting on behalf of the Committee, applied to the Tribunal for the review of a decision made by Landcom, dated 25 May 2005, confirmed on an internal review on 13 July 2005, to refuse access to certain documents requested by the Committee. The Committee’s application, dated 20 April 2005, requesting access to “all documents and communications in relation to ... Beacon Hill High School from 1 January 2000 to 20 April 2005”, is one of a number of applications made by the Committee to NSW government departments/agencies relating to the site of the former Beacon Hill High School.

2 Landcom agreed to release some of the relevant documents, but refused access to others pursuant to s 25 and Schedule 1, Part 2, clause 7 of the Freedom of Information Act 1989 (‘the FOI Act’), on the ground that they were exempt documents containing information relating to Landcom’s commercial practices. In its letter dated 25 May 2005, Landcom explained:

“Landcom’s role in the project has been to provide options to the Department of Education and Training for the development of the former Beacon Hill High School site. Therefore, the majority of documents relating to this project are of a commercial nature and if released would have an impact on Landcom’s commercial performance, particularly having regard [sic] that Landcom will be seeking a private sector partner in the future to deliver the project.”

3 On 15 September 2005, following Mrs Covey’s application to the Tribunal, a planning meeting was held with the parties by a Judicial Member at which a number of steps to be undertaken by the parties were identified with a view to progressing the matter. As a result, Landcom reviewed the relevant documents and prepared a revised schedule of documents indicating those in respect of which an exemption or partial exemption was claimed. Following this, Landcom released some further documents to the Committee.

4 The documents released to the Committee inadvertently included two unedited documents in respect of which Landcom claimed partial exemptions. Landcom has provided a statement from its FOI Co-ordinator, dated 24 January 2006, stating that these documents were released in error. The documents indicate the purchase price at one time considered by Landcom for the Beacon Hill High School site. One of the documents comprises an email to Landcom from its lawyers in respect of which Landcom says it should have also claimed privilege.

5 Landcom has requested that the Tribunal order the Committee to return the two documents to Landcom. The Tribunal requested and the parties have provided written submissions on whether it has the power to make such an order and the parties have asked the Tribunal to determine this as a preliminary issue.

The Issue in Dispute

6 It should be noted that this decision is not concerned with whether the documents in question were exempt documents. That is a matter to be determined following the substantive hearing. This decision is purely concerned with whether, if a government department or agency accidentally releases documents that it claims to be exempt, the Tribunal has power to order the return of those documents. This does not appear to be an issue that has previously been considered by the Tribunal, nor do there appear to be any decisions on this issue from other jurisdictions.

Discussion

7 In it submissions, Landcom referred to two decisions of the Administrative Appeals Tribunal (‘AAT’) where the accidental release of documents claimed to be exempt was considered. In Re Robinson and Department of Foreign Affairs (1986) 11 ALN N48, Deputy President Todd said (at paragraph 12):

“A document will not necessarily lose its character as a document the disclosure of which would, or could reasonably be expected to, cause damage to the security of the Commonwealth merely because it has previously been released.”

8 In Re Boyle and Australian Broadcasting Corporation (22 February 1993, AAT No 8565), Deputy President McMahon said (at paragraph 23):

“Whether the applicant has knowledge of the contents of a document, or even in fact whether it has been accidentally shown to him, is not relevant to the character of the document as an exempt document.”

9 There are also two decisions of this Tribunal where the President, O’Connor DCJ, considered the same issue. In BY v Director-General, Attorney General’s Department (No 2) [2003] NSWADT 37, the President held that an exemption continued to apply to a document notwithstanding that the applicant had already obtained it by other lawful means. Similarly, in FA v Commissioner of Police, NSW Police Service [2003] NSWADT 196, at paragraph 14, the President said: “The agency is entitled to continue to assert the exemption in relation to its documents even though copies of them may now be held by the applicant.”

10 The principle that emerges from these cases is that the accidental release of a document claimed to be exempt, or fact that the document claimed to be exempt has already been obtained by the applicant through other means, is not determinative of its character. This principle applies in the current matter. The fact that the two documents were accidentally released by Landcom to the Committee, following Landcom having processed 5,575 pages of documents in the course of processing the Committee’s application (statement of Joy Vergoulis dated 24 January 2006 at paragraph 10), is not determinative of the character of those documents. Whether those documents are ultimately held to be exempt is yet to be determined by the Tribunal following the substantive hearing of this matter.

11 Neither the AAT decisions nor the decisions of this Tribunal address the additional question posed here which is whether the Tribunal has power to order the return of such documents where they have been accidentally released. Landcom submits the accidental release occurred in the course of its complying with directions made by the Tribunal at a planning meeting on 15 September 2005. It contends that the return of the documents is therefore a matter for the Tribunal to deal with in the course of regulating its own proceedings. Under s 73 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), the Tribunal has broad powers to determine its own procedure and, pursuant to s 73(3), must act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.

12 Landcom submits firstly, that the provision of the two documents in question was outside the scope of the Tribunal’s orders and so it is appropriate for the Tribunal to order their return. This would be consistent with the obligation imposed on the Tribunal by s 55(a) of the FOI Act “to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt material”. Secondly, Landcom submits, noting the Committee will suffer no disadvantage, that equity and good conscience dictate that the documents should be returned to it. In its submissions, Landcom then embarks on a long discussion of privilege, which, in my opinion, having decided that the accidental release of the two documents is not determinative of their character, does not assist in the resolution of the issue of the Tribunal’s powers in this matter.

13 The Committee submits that Landcom has lawfully released the two documents and no order should be made for their return. The object of the FOI Act is to facilitate the right of the public to obtain access to information held by the Government. The Committee points to the Annual Report of the NSW Ombudsman for 2004-2005 where he commented that agencies are “continuing to use inappropriate exemption clauses to withhold documents from members of the public”. Most of the Committee’s submissions appear to relate to the substantive issues in dispute and are not, in my view, specifically referable to the preliminary issue under consideration. These submissions, following the lead of those for Landcom, discuss at some length inadvertent disclosure of documents claimed to be privileged and whether the privilege is thereby waived, but do not deal with whether such documents should be returned.

14 The Tribunal, being a statutory body and not a court, only has such decision-making powers as are given it by statute. The Tribunal’s general powers are those set out in the ADT Act. Where the Tribunal is empowered to determine an application for a review of a decision, s 63(2) of the ADT Act states:

“For this purpose, the Tribunal may exercise all the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”
The word “function” is defined in s 4(1) as including “a power, authority or duty”.

15 I note the FOI Act does not empower an agency that inadvertently releases documents in respect of which it claims an exemption, to require the return of those documents.

16 The Tribunal also has specific powers and obligations in relation to its procedures. As Landcom points out in its submissions, s 73(1) of the ADT Act gives the Tribunal a broad power to “determine its own procedure”. Moreover, pursuant to s 73(3), the Tribunal has an obligation “to act according to equity, good conscience and the substantial merits of the case”. Then, s 73(6) empowers a judicial member to hold a directions hearing in relation to any proceedings before the Tribunal. Further, pursuant to s 75, while Tribunal hearings must generally be held in public, the Tribunal is permitted to limit the public nature of its proceedings if it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. In my opinion, these powers and obligations are all related to the Tribunal’s procedures – to the way it conducts its proceedings and goes about making its determinations.

17 With regard to the planning meeting held with the parties on 15 September 2005, if the steps identified by the Judicial Member to be undertaken by the parties are to be regarded as directions or orders, which is not in itself clear, the only remedy available to the Tribunal where a direction or order is not complied with, (unless reflected in a costs order made pursuant to s 88 of the ADT Act) is that in s 131 of the ADT Act. This provision enables the Tribunal to report a matter to the Supreme Court, which may deal with the matter as if it were a contempt of the Court. The Tribunal itself has no incidental power of the kind suggested by Landcom enabling it to order the return of documents where, in response to steps identified or orders made in a planning meeting, a party inadvertently releases documents beyond those contemplated at the planning meeting that should not have been released.

18 In relation to FOI, it is the FOI Act that gives jurisdiction to the Tribunal in relation to the review of decisions made under that Act. In doing so, as Landcom points out, the Tribunal has an obligation pursuant to s 55(a) of the Act “to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter”. In my view, the focus of this provision is the Tribunal taking care not to disclose exempt material and it does not empower the Tribunal to make orders extending to the parties’ handling of such material.

19 Thus, in my view, neither the provisions of the ADT Act nor those of the FOI Act empower the Tribunal to make the order sought by Landcom. Landcom’s request that the Tribunal order the return of the two documents is therefore denied.

20 Landcom also seeks a non-publication order pursuant to s 75(2) of the ADT Act to preserve the confidentiality of the proposed purchase price for the Beacon Hill High School site revealed in the two documents inadvertently released to the Committee. The parties have informed the Tribunal that this purchase price has now been revealed in a Press Release by Dr Arthur Chesterfield Evans, Member of the Legislative Council, dated 27 January 2006, and in an article in the Telegraph newspaper, dated 15 February 2006. In my view, there would be no utility in making the order sought by Landcom since the information in question is already in the public domain. The request is therefore denied.

Decision

21 The Respondent’s applications for an order for the return of documents and for a non-publication order are denied.