Roads and Traffic Authority, New South Wales v Hutchinson (GD)

[2007] NSWADTAP 28

Appeal Panel - Internal

CITATION:	Roads and Traffic Authority, New South Wales v Hutchinson (GD) [2007] NSWADTAP 28
PARTIES:	APPELLANT Roads and Traffic Authority, New South Wales RESPONDENT Rowan Hutchinson
FILE NUMBER:	069069
HEARING DATES:	23 March 2007
SUBMISSIONS CLOSED:	23 March 2007
DATE OF DECISION:	14 June 2007
BEFORE:	O'Connor K - DCJ (President); Pearson L - Judicial Member; Mapperson K - Non Judicial Member
CATCHWORDS:	Administrative Decisions Tribunal Act - final orders of remittal - scope and nature, Freedom of Information Act - finding of insufficient search - refusal to process on resources ground - whether adequate search a precondition
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053202
DATE OF DECISION UNDER APPEAL:	10/04/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989 Migration Act 1958 (Cth)
CASES CITED:	Hutchinson v Roads and Traffic Authority, New South Wales [2006] NSWADT 290 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Challita v Director-General, Department of Education and Training [2006] NSWADT 109 Cianfrano v Director-General, Premier’s Department [2006] NSWADT 137 Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 163 Cianfrano v Director General, Premier's Department (GD) [2006] NSWADTAP 48
REPRESENTATION:	APPELLANT M Allars of counsel instructed by Crown Solicitor's Office RESPONDENT B Zipser of counsel instructed by Brock Partners, solicitors
ORDERS:	1. Appeal allowed; 2. Orders 1 and 3 set aside; 3. Application remitted to the Tribunal for the making of new orders and directions, having regard to these reasons

1 Mr Hutchinson, the respondent to the present appeal, has made a number of applications under the Freedom of Information Act 1989 (the FOI Act) to the Roads and Traffic Authority (RTA), the appellant, for access to documents relating to roadworks undertaken in the Yass area. Two of his applications led to review proceedings in the Tribunal. The Tribunal upheld his contention that the RTA had engaged in an inadequate search for documents: see Hutchinson v Roads and Traffic Authority, New South Wales [2006] NSWADT 290 (4 October 2006). The RTA challenges in this appeal the lawfulness of two of the Tribunal’s orders.

2 The first application had sought ‘all documents concerning the construction and maintenance of Mundoonan rest area and all documents including photographs of the systems failure of the sewage effluent treatment system ...’. The second application, as revised prior to the Tribunal’s hearing, was for documents relating to the cost of construction of the rest areas, in particular documents relating to the cost of earthworks, access roads, paving and landscaping of the rest areas. The RTA constructed the Mundoonan rest areas several years ago as part of an upgrade of the Hume Highway near Yass.

3 As noted, two of the orders made by the Tribunal are the subject of the RTA’s appeal. The orders are Orders 1 and 3:

‘1. The decision of the RTA that it does not hold documents relating to the cost of earthworks, paving and landscaping the Mundoonan rest areas is set aside. That decision is remitted for reconsideration by the RTA in accordance with the following directions:

(a) Mr Doolan, or some other person familiar with the construction of the rest areas, is to go through the list of 405 files to identify whether any of those files is likely to contain documents relating to the cost of earthworks, paving and landscaping of the rest areas.

(b) If relevant files are identified, then either Mr Doolan or a person other than Mr Doolan, who has been instructed as to what documents to look for, should go through those files to identify those documents.

(c) If there are no provisions in the FOI Act preventing the documents that are identified from being provided to Mr Hutchinson, including the resources exception in s 25(1)(a1), then they should be provided to him. This process should be completed and Mr Hutchinson advised of the outcome within 42 days of the date of this decision.

3. The decision of the RTA that it does not hold diaries kept by surveillance officers which relate to the rest areas is set aside. That decision is remitted for reconsideration by the RTA in accordance with the following directions:

(a) Mr Doolan, or some other person familiar with the construction of the rest areas, is to go through the list of 405 files to identify whether any of those files is likely to contain diaries kept by surveillance officers which relate to the rest areas.

(b) If relevant files are identified, then either Mr Doolan or a person other than Mr Doolan, who has been instructed as to what documents to look for, should go through those files to identify any diaries kept by surveillance officers, which relate to the rest areas.

(c) If there are no provisions in the FOI Act preventing the documents that are identified from being provided to Mr Hutchinson, including the resources exception in s 25(1)(a1), then they should be provided to him. This process should be completed and Mr Hutchinson advised of the outcome, within 42 days of the date of this decision.’

4 These orders were stayed by order of the Appeal Panel, 9 November 2006, pending determination of this appeal.

5 The RTA had, in response to the two applications, provided full access to all documents it has been able to locate and which it considers fall within the scope of the two applications. In its determinations it denied that it held any documents beyond those disclosed, and included a notice to that effect relying on para (b) of s 28(1). Section 28(1) provides:

‘(1) An agency shall cause written notice to be given to the applicant:

(a) of its determination of his or her application, or

(b) if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document.’

6 At planning meetings before the Tribunal, Mr Hutchinson pressed his opinion that the RTA’s replies to the two applications had been inadequate. He contended that his first application had been unduly narrowly construed. He queried, for instance, why diaries kept by officers involved with the project known as ‘surveillance officers’ had not been produced. In the case of the second application, he asserted that it was inconceivable that no documents at all were produced in response to some categories of the application (in particular, cost of earthworks, paving and landscaping).

7 In the course of the planning meetings, the Tribunal, with a view to further searches being undertaken, made consent orders remitting the applications to the RTA for reconsideration. The relevant power is found in s 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Mr Youngman, the RTA FOI officer, located a small number of additional documents. These were released to Mr Hutchinson. Subject to these further discoveries, the RTA maintained its position that no further documents could be located. Mr Hutchinson remained dissatisfied; and exercised the right given by s 65(3)(b)(i) to ‘proceed with the application for review of the decision as varied’. This led the Tribunal, in line with its usual practice, to hold a hearing on the issue of whether there had been a ‘sufficient search’.

8 In recent times, the question of whether the Tribunal has any such jurisdiction has been contested by government agencies. Their argument, essentially, is that the giving of a s 28(1)(b) notice does not involve a ‘determination’ of an application, with the result that a s 28(1)(b) notice does not engage the review jurisdiction of the Tribunal. The contrary view is that if a document to which a request relates does exist but is not addressed by the determination that results in a ‘deemed refusal’ of that document (see s 24(2)) which is reviewable. The sufficiency of search inquiry is undertaken as a preliminary step in reaching a view as to whether the access application has been the subject of a full response. The agencies’ argument is that this is a matter of a kind that should be dealt with by the Ombudsman not the Tribunal. The debate over jurisdiction is now before the Supreme Court.

9 In these proceedings the agency submitted to the jurisdiction of the Tribunal on the question of sufficiency of search and put on evidence going to the sufficiency of its searches. Two officers of the agency with knowledge of the documentation generated by the rest area works were called, and cross-examined. Mr Hutchinson was represented at the hearing by Mr Zipser of counsel.

10 The RTA submitted that the evidence demonstrated that a sufficient search had been undertaken, the access application should be regarded as satisfied, and the review application dismissed. If that is the case, then the Tribunal is clearly without jurisdiction. It has no jurisdiction to review a determination where all documents have been released. Its jurisdiction is confined to determinations, which result in negative outcomes of various kinds for applicants (as to which, see, principally, s 25).

11 Mr Hutchinson’s criticisms were, in the view of the Tribunal, vindicated to some degree by the evidence, giving rise to the conclusions reflected in Orders 1 and 3. Mr Doolan had been the project manager of the highway upgrade of which the rest areas formed part. On the basis of Mr Doolan’s evidence, the Tribunal was satisfied that there were likely to be a large number of documents in the possession of the RTA that fell within the scope of the applications. They had not been identified and assessed.

12 The Tribunal did not identify the head of power under which it made the orders. In our view it was not exercising the (interlocutory) remittal power given by s 65 (mentioned above) but was exercising the remittal power given by s 63. As all the other orders that the Tribunal made were final orders, we have assumed that the Tribunal was making a remittal of a dispositive kind pursuant to s 63(3)(d). Section 63(3)(d) provides:

‘(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.’

13 Paragraphs [39]-[42] of the reasons provide the basis for Order 1; and paras [43]-[46] provide the basis for Order 3. The critical paragraph in the reasons is para [41]. The question is whether the Tribunal properly interpreted and applied s 25(1)(1a) which provides:

‘(1) An agency may refuse access to a document: …

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.’

Paragraph (1a) is qualified by sub-section (5):
‘(5) Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.’

14 Paragraphs [39]-[46] follow:

‘39 Finding . On the basis of this evidence, I am satisfied that Mr Doolan has sufficient knowledge of the location of documents relating to the cost of the rest area to go through the list of 405 files and express an opinion as to which files may contain documents relating to earthworks, the paving (including the cost of the block paving) and the landscaping. That finding is subject to the proviso that documents may only be identifiable if the construction of the rest area was done as day works as distinct from schedule of rates. However, the question is not whether Mr Doolan, or anyone else, could go through the list of files and identify relevant documents. The question is whether the RTA has taken all reasonable steps to find the documents sought by Mr Hutchinson.

40 Has RTA taken “all reasonable steps”? The RTA submitted that it has already taken all reasonable steps to find the disputed documents. Mr Youngman said that he considered asking John Milner or Colin Doolan to look at the list of files, but decided against it as it would have taken them off their current projects, possibly for days. Ms Allars submitted that when considering whether an adequate search has been conducted, the Tribunal should keep in mind that the FOI Act allows an agency to refuse access to documents “if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions”: FOI Act, s 25(1)(a1). She said that the duty to search cannot be so onerous as to require an agency to engage in a task that would substantially and unreasonably divert its resources.

41 Mr Hutchinson submitted that the adequacy of search issue arises prior to the question of whether the resources exception in s 25(1)(a1) applies. I agree with that proposition. The question for the Tribunal is whether the RTA has taken all reasonable steps to find the documents sought by Mr Hutchinson. The RTA says it does not have any further documents. It is premature for the RTA to foreshadow that it may rely on the resources exception if it discovers that it does hold documents relevant to Mr Hutchinson’s requests.

42 Conclusion. In the light of Mr Doolan’s evidence, I am not satisfied that the RTA has taken all reasonable steps to find the documents relating to the cost of earthworks, paving and landscaping of the rest areas. The decision of the RTA that it does not hold these documents is set aside. …

44 Diaries of site surveillance personnel. Mr Doolan confirmed that site surveillance personnel, who are generally employed by the contractor, kept diaries. He said he could not recall whether there were any RTA surveillance officers on this project. Mr Doolan’s understanding was that if diaries were kept by surveillance officers employed by the contractor, a copy of the diaries would not be kept on RTA files. However, he accepted that it appears from the list of 405 files that the RTA may hold a copy of those diaries on their files.

45 In evidence was an email from Lynette Furness at the Mittagong Works Office, dated 23 November 2005 to Mr Youngman stating that:

I do not have construction diaries or files on this matter. The project was not done by Mittagong or Goulburn Maintenance Offices. The construction of this facility was managed by Major Projects at Goulburn.
46 Given this evidence, I am satisfied that the RTA has not conducted an adequate search for these documents and I set aside the RTA’s decision that it does not hold diaries of site surveillance personnel. …’

15 The grounds of appeal are:

‘1. The Tribunal erred in construing s 25(1)(a1) of the Act as not applying to work involved in an agency’s identifying and locating documents (at [39], [41], [42] and [46] of the reasons for decision).

2. The Tribunal erred in construing the right of an agency to refuse access to documents pursuant to s 25(1)(a1) of the Act as subject to fulfilment of a precondition that the agency has ‘taken all reasonable steps’ to find the documents sought (at [39]-[42]) and [46]).’

16 The RTA objects to carrying out the directions, because they preclude it from raising in advance of any search an objection based on s 25(1)(a1). A determination invoking s 25(1)(a1) is a refusal which is a reviewable in the ordinary course: see s 34(7)(a)(i); s 53(3)(a)(i).

Submissions

17 Agency Submissions: In relation to ground 1 of the appeal, the RTA made two submissions.

18 First, applying a common sense approach, Ms Allars submitted, ‘the work involved in dealing with’ the application commences as soon as the application is lodged. Support for this proposition can be found in other provisions of the FOI Act where variations of the phrase ‘dealt with’, ‘dealing with’, ‘refuse to continue dealing with’ demonstrate that work is undertaken from the time of receipt of the application, that is, prior to the tasks of identifying and locating documents. The precondition to refusing access under s 125(1)(a1) is that ‘the work involved in dealing with the application for access to the documents would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions’. The ‘work’ referred to, Ms Allars submitted, is not limited to the work that commences after the documents have been identified. In applying its ordinary English meaning, unconfined, the expression includes the work of identifying and locating the documents.

19 Section 25(5) requires an agency to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources before refusing access under s 25(1)(a1). Ms Allars submitted there is no indication in s 25(5) that this consultation need not occur until after the agency has identified and located the documents.

20 Secondly, Ms Allars submitted that cases considering analogous provisions in other jurisdictions do not assist in the construction of s 25(1)(a1) because those provisions set out the kind of work which may be taken into account when determining whether there is a substantial and unreasonable diversion of resources. Ms Allars submitted that Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35, Challita v Director-General, Department of Education and Training [2006] NSWADT 109 and Cianfrano v Director-General, Premier’s Department [2006] NSWADT 137 (Cianfrano 137) reflect the proper approach to the construction of s 25(1)(a1).

21 When determining whether an agency has correctly refused access under s 25(1)(a1), the Tribunal in Chapman identified three relevant considerations:

- the number of documents requested, estimated or known;

- the time required to locate, identify and schedule the documents; and

- the time to engage in consultation with third parties and determine whether or not to grant access.

22 In Chapman the Tribunal accepted that the time taken in locating a document, and the difficulty of locating a document, are to be taken into account when applying s 25(1)(a1). Ms Allars submitted that no doubt has been cast on the principle that the time and resources involved in locating and identifying documents is properly taken into account as part of the work involved in dealing with a request. In Challita the Tribunal relied on the test enunciated by Deputy President Hennessy in Chapman. In Cianfrano 137 the Tribunal held that s 25(1)(a1) is expressed in general terms and does not go on to refer to particular activities. The Tribunal took the view that it is appropriate to interpret the provision as allowing consideration of the steps referred to by Mr Quinnell (an expert witness for the agency), which is in line with the amended Commonwealth provision.

23 Those steps included interrogating the agency’s computer record system, assessing how many volumes made up each file, estimating the number of file pages, making an assessment as to the number of pages based on a sample of the file, estimating the officer time required to read the pages (taking into account duplication of pages), estimating the time it would take to compile a schedule, consultation with third parties, and the time involved in removing, copying and returning affected documents to the files as part of the processing of the request. Ms Allars submitted that the work involved in identifying and locating documents is relevant for the purposes of s 25(1)(a1) and should not be excluded from consideration on the basis that an agency has given notification under s 28(1)(b).

24 In relation to ground 2 of the appeal, the RTA made two submissions.

25 First, Ms Allars submitted that in requiring an agency to take all reasonable steps before it can rely on s 25(1)(a1), the Tribunal adopted a construction of s 25(1)(a1) which departs from the language of the Act. In her view, the ordinary meaning of the words in s 25(1)(a1) applies therefore an agency has a statutory right to refuse access on the basis of the words in s 25(1)(a1). That right is not subject to the agency being required to first conduct an adequate search. There is no indication elsewhere in the FOI Act that the right is subject to all reasonable steps being taken.

26 Ms Allars submitted that when considering whether an adequate search has been conducted, the Tribunal should keep in mind that the FOI Act allows an agency to refuse access to documents ‘if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions’: FOI Act, s 25(1)(a1). She said that the duty to search could not be so onerous as to require an agency to engage in a task that would substantially and unreasonably divert its resources.

27 Secondly, Ms Allars submitted that the Tribunal had misdirected itself by adopting in its reasons an approach found in the Commonwealth FOI Act but not in the State Act. She referred to the passages in the Tribunal’s reasons referring to the need for the agency to take ‘all reasonable steps’. She noted that there is no duty, expressed in these terms, imposed by any relevant provision of the FOI Act. She noted that the words ‘all reasonable steps’ can be found in s 24A of the Freedom of Information Act 1982 (Cth), which makes specific provision for refusing (rather than giving notification) requests where documents cannot be found or do not exist. The Tribunal’s adoption of the test in s 24A(a), Ms Allars submitted, places an unwarranted gloss on s 25(1)(a1) and limits its intended scope of operation.

28 As to this point, in our view the Tribunal was adopting the reasons given first by Smith JM in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 and subsequently consistently applied in the Tribunal. One example is to be found in the dicta in Chapman at paras [14] and [17]. In Beesley the Tribunal adopted the thinking on this point reflected in the early Commonwealth case law of the early to mid-1980s, which arose in a similar legislative environment to that presently existing in New South Wales. The Commonwealth Act had at that time no express provision going to the question. Section 24A was added to the Commonwealth Act in 1991 following a Senate Committee review of the operation of the Commonwealth Act.

29 Thirdly, Ms Allars submitted that taking all reasonable steps to find the documents is not a precondition to the exercise of the right to claim the exception under s 25(1)(a1) and by conditioning the right in this way it is replaced by an adequacy of search requirement.

30 Finally, Ms Allars submitted that had the Tribunal applied the proper test, on the evidence, the search the RTA conducted was reasonable in the circumstances and the exception in s 25(1)(a1) was established.

31 Respondent’s Submissions: Mr Zipser on behalf of Mr Hutchinson submitted that in relation to ground 1 of the appeal, the RTA’s submission is wrong on the following bases. He referred, first, to the language of s 25(1) which suggests that the terms ‘a document’ and ‘the document’ to which ‘an agency may refuse access’ are documents that have been identified by the time the agency decides to refuse access under s 25(1).

32 For example, in order for an agency to determine that a document is ‘exempt’ (s 25(1)(a)) or ‘usually available for purchase’ (s 25(1)(c)), the agency must have identified the document. Mr Zipser argues that the RTA’s contention that it is unnecessary for the agency to have identified the document before claiming the exception under s 25(1)(a1) sits awkwardly with the remaining sub-paragraphs in s 25(1). Furthermore, Mr Zipser submitted, the opening words of s 25(1) – ‘An agency may refuse access to a document’ – suggest that by the time the agency makes a decision to refuse access, it has identified the document. Therefore, the interpretation of s 25(1)(a1) proposed by the RTA places a strained construction on the opening words of s 25(1).

33 Secondly, he submitted that it would be a strain on the words of s 25(1) to imply that the exception under s 25(1)(a1) applies to the task of identifying documents. Mr Zipser submitted that if the drafters of the NSW FOI Act had wanted to adopt this approach, they could have inserted a provision similar to s 25A(1) of the Freedom of Information Act 1982 (Vic) (which applies to the ‘substantial and unreasonable diversion of an agency’s resources exception’) or amended s 22 of the NSW FOI Act.

34 Next, he submitted that the sequential style of Division 1 of Part 3 of the FOI Act supports the point that by the time an agency makes a determination under ss 24 and 25 it has identified the relevant documents. Mr Zipser adopted the observations of Kirby J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 163 at [154] dealing with the question of whether the provisions of Pt 7 Div 4 of the Migration Act 1958 (Cth) have a sequential or ambulatory operation. In that case, a majority (of five justices sitting) of the High Court (McHugh, Kirby and Hayne JJ) favoured an ambulatory operation whereby the performance by the Refugee Review Tribunal of its functions was engaged wherever, by their terms, those provisions applied to the circumstances of the case. In other words, the majority did not find that the Tribunal had to follow a particular sequence of steps when conducting a review.

35 Fourthly, he submitted that the RTA’s contention is inconsistent with the views expressed by O’Connor P in Cianfrano 137. By way of example he pointed to President O’Connor’s comments at [59(iv)], [65] and [74] in Cianfrano 137:

(a) ‘59(iv) At [10] that the opening words of s 25(1) [‘An agency may refuse access to a document’] ‘indicate that the section does not purport to be exhaustive of the grounds on which access can be refused under s 24(1)’. The provision ‘does not address the antecedent locating of documents identified in the request, and a determination flowing from a finding of “does not exist”.’

(b) at [65] in relation to raising a s 24(2) question:

‘65 In my view if an applicant contends that there has been a failure to locate relevant documents the Tribunal must decide whether the applicant is raising a s 24(2) question. The situation that arose in Burton underlines the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. The Tribunal may have to ascertain whether there has been a possible failure by the agency to address all documents in its possession. Such a failure can properly characterised as a refusal of the kind referred to in s 24(2); and is reviewable.’
(c) at [74], as to the question of whether the Tribunal may make directions upon being satisfied that a s 24(2) question has been raised:
‘it follows that it can [make] directions of a kind which enable it to resolve the issue of whether a situation of deemed refusal has arisen. They may include directions relating to the sufficiency or adequacy of the search.’

36 While acknowledging that the decision is not binding on the Appeal Panel, as it was made at Divisional level, Mr Zipser nevertheless cautioned against departing from an earlier decision of the Tribunal.

37 Fifthly, Mr Zipser submitted that the RTA’s focus on the words ‘the work involved in dealing with’ in s 25(1)(a1) must be read in light of the points raised in relation to the process of statutory construction referred to in his first and third submissions.

38 Next, Mr Zipser, in reply to the RTA’s contention that the Tribunal’s construction of s 25(1)(a1) is inconsistent with previous authority, submitted that:

(a) Chapman is distinguishable from the present case on the basis that the agency had previously identified the document sought by the applicant before relying on the exception in s 25(1)(a1).

(b) Challita is not relevant on the basis of Montgomery JM’s finding that the Department’s search for documents was adequate. This determines the question put by the RTA in the present proceedings.

39 With regard to ground 2 of the appeal, Mr Zipser raised the question of whether the RTA sought to resile from its position as stated in its submission to the Tribunal at first instance. The RTA wrote, at [3.1] of that submission, that “the proper approach [as to whether an agency has conducted an adequate search] is to assess the evidence in each case to determine the strength of the applicant’s claim that the search is inadequate or that the documents exist, and the adequacy of the agency’s endeavours to respond to those claims”.

Assessment

40 We have set out the respective arguments in some detail. We do not propose in these reasons to deal with them all.

41 The Tribunal at para [41] endorsed the proposition that ‘the adequacy of search issue arises prior to the question of whether the resources exception in s 25(1)(a1) applies’. The Tribunal’s view was that the search must first be undertaken. The second proposition of the Tribunal was that it ‘is premature for the RTA to foreshadow that it may rely on the resources exception if it discovers that it does not hold documents relevant to Mr Hutchinson’s requests’.

42 The Act regulates an aspect of the administrative relationship between agencies and the public – access to records of information. It promotes transparency, subject to various limitations. One of these limitations is the resources exception. The need to balance these factors is reflected in s 5(2)(b) of the objects clause:

‘(2) The means by which it is intended that these objects are to be achieved are: …

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government,’

43 It cannot, we think, have been the intention of Parliament that an agency would have to first locate the documents the subject of the application before being able to invoke the resources exception. In the second reading speech introducing the Freedom of Information Bill (No 2) 1988, the Minister acknowledged that this is a difficult area, and said (Hansard, LA, 10 November 1988, 3165-66):

‘Another issue raised was the provision that proposed to allow agencies to refuse to deal with requests where to do so would substantially and unreasonably divert the resources of the agency. The Government acknowledges that this is a difficult area. However, it is considered that it is essential to preserve an agency’s ability to carry on its normal work without unreasonable interference from wide-ranging freedom of information requests. I have already indicated that a review of the operation of the Act will be conducted two years after its commencement. Together with the secrecy exemption, the provision regarding refusal to deal with applications will be closely monitored, and further consideration will be given to these issues at the time of review.’
(The review has never occurred.)

44 As first enacted, the provisions giving effect to this policy were contained in s 22(1) and s 22(2), as follows:

‘ Agencies may refuse to deal with certain applications

22 (1) An agency may refuse to deal with an application if it appears to the agency that the nature of the application is such that the work involved in dealing with it would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.

(2) An agency shall not refuse to deal with such an application without first endeavouring to assist the applicant to amend the application so that the work involved in dealing it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its function.’

45 Under the original Act, an agency was obliged to give a notice of refusal if it decided not to deal with a request for the above reasons, which was to include reasons. But the decision reflected in the notice was not a determination for the purposes of the Act (s 22(8)), and therefore not reviewable. The amendments of 1992 made the decision reviewable, by repealing s 22(8) and moving the contents of s 22(1) to its present location – s 25(1)(a1), bringing it, therefore, within the determination framework. Section 22(2) was repealed and moved to s 25(5).

46 The Minister explained the changes as follows (Hansard, LA, 26 March 1992, 2104):

‘Currently a determination of an agency to refuse to deal with an application on the grounds that it involves a substantial and unreasonable diversion of resources is not treated as a reviewable determination under the Act. The Bill amends the Act to classify such a refusal as a determination, which means it will be reviewable … . This is clearly a desirable improvement and will ensure that agencies are not encouraged to make spurious claims about the level of resources required to process applications.’

47 Section 25(1)(a1) includes the words ‘if carried out’, which confirm, we think, that the agency can make its resources assessment without first having actually ‘carried out’ the task of ‘dealing with the application for access’. We think it strains the meaning of the provision, having regard to the administrative context in which it appears, to read the words ‘the work in dealing with the application for access’ narrowly so as to encompass only the formal processes that are required once the documents are located and identified. In our view, the expression ‘if carried out’ relates to all of the administrative work, using the Minister’s words in 1992, ‘required to process applications’.

48 It is open therefore to an agency to make a determination invoking s 25(1)(a1). In its statement of reasons it would have to provide its justification. That might take the form of an assessment of the scope of the request by an officer with relevant expertise in regard to the agency’s record keeping arrangements, including organisation and location of documents and the ease or difficulty with which they can be accessed. The relevant considerations were considered in some detail by the President sitting at first instance in Cianfrano 137. (That decision was set aside on appeal on an unrelated point – see Cianfrano v Director General, Premier's Department (GD) [2006] NSWADTAP 48 (Cianfrano 48) (omission by agency to apply Premier’s policy when dealing with requests seen as involving an unreasonable diversion of resources, as required by s 64 of the ADT Act).)

49 Mr Zipser also sought to rely on the reasoning in Cianfrano 137. The comments in that case were made in relation to a situation where the Tribunal remains seized of the matter. We do not see any difficulty, in principle, in the Tribunal giving directions for further searches within the framework of a remittal for consideration of the kind contemplated by s 65 of the ADT Act. This kind of remittal did occur in this case (remittal and directions given, 20 October 2005) and resulted in the RTA identifying some more documents. Before onerous search directions were given, the Tribunal would need to consider any objections put by the agency.

50 However, in this instance the Tribunal was making final orders not interim orders and exercising a power given by s 63(3). The Tribunal’s directions obliged the agency first to undertake a comprehensive examination of 405 files before raising the resources objection. This approach reflected the Tribunal’s view that the first step must be an identification of the relevant documents before the resources objection can be raised. This position does not, in our view, have a legislative basis and involves too dogmatic an approach to the administration of the Act.

51 Section 63(3)(d) is a form of final order that gives the agency the facility of reconsidering the application. The power to make recommendations or directions should not, we think, be exercised in a way that deprives the agency of the power to exercise any of the grounds of determination (other than the one that has been rejected by the Tribunal).

52 The point of a provision like s 25(1)(a1) is to allow the agency to make a persuasive ‘ball park’ assessment, and on that basis decline to go any further. It will be necessary, we think, usually to go some part of the way. There might, for example, be a sampling exercise done so as to ascertain the magnitude of the task required, before forming the view that s 25(1)(a1) is applicable. A number of the observations in Cianfrano 137 were directed to the question of what might be regarded as appropriate or adequate evidence for that purpose.

Conclusions

53 In the notice of appeal and the submissions in support, the RTA did not make submissions on the precise form of order that is sought. If we simply set aside the directions, and leave the remaining orders on foot, the result would be that the primary Tribunal’s jurisdiction is exhausted as the power given by s 63(3)(d) of the ADT Act was, we think, exercised. This would mean that Mr Hutchinson would have to start again if he is dissatisfied with any fresh determination of the RTA, based as it might be on s 25(1)(a1).

54 Given the degree of attention that this matter has already received, it would be better, we think, to maintain the involvement of the Tribunal. To that end, therefore, our orders set aside Orders 1 and 3, and substitute instead an order by the Appeal Panel made under s 114(2)(b) of the ADT Act that the matter be remitted to the Tribunal for further directions, in light of these reasons. This would allow the Tribunal to consider exercising the power given by s 65 to remit the matter to the agency for further consideration, and retain control of the matter.

55 To pick up one of Mr Zipser’s points, it is odd of course that the RTA is now raising the spectre of s 25(1)(a1). Its previous position was that it held ‘no’ further documents responsive to the applications. If it invokes s 25(1)(a1), it may be seen as saying it holds so many documents that it is too onerous for it to undertake the task. One can understand that applicants may well feel a sense of frustration at switches of position of this magnitude. Moreover as the Appeal Panel decision in Cianfrano 48 highlighted, an agency before invoking this exemption must undertake certain consultations with the applicant.

56 Ms Allars’ final submission was that had the Tribunal applied the proper test, it would have been satisfied that the RTA search was reasonable in the circumstances, and the exception in s 25(1)(a1) was established. In our view, it would be better for the Tribunal to re-examine the matter in light of the approach to reliance on s 25(1)(a1) that we prefer. It is plain that there was strong evidence from Mr Doolan to suggest that numerous documents had been created in the course of the project that might bear on the subjects identified by Mr Hutchinson in his access application. It is also the case that an agency can only rely securely on s 25(1)(a1) after establishing that it has satisfied s 25(5). It would be better if the Tribunal assessed that point.

Order

1. Appeal allowed.

2. Orders 1 and 3 set aside.

3. Application remitted to the Tribunal for the making of new orders and directions, having regard to these reasons.