Rouvinetis v Department of Education and Training

[2009] NSWADT 212

CITATION:	Rouvinetis v Department of Education and Training [2009] NSWADT 212
DIVISION:	General Division
PARTIES:	APPLICANT Evangelo Rouvinetis RESPONDENT Department of Education and Training
FILE NUMBER:	093059
HEARING DATES:	15 June 2009
SUBMISSIONS CLOSED:	26 June 2009
DATE OF DECISION:	11 August 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents – jurisdiction – sufficiency of search
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86 McGuirk v Attorney General of NSW [2008] NSWADTAP 81 Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264
REPRESENTATION:	APPLICANT In person RESPONDENT S Bilbe-Taylor, solicitor
ORDERS:	The Application for review is dismissed.

1 Mr Rouvinetis ('the applicant') applied to the Department of Education and Training ('the respondent') under the Freedom of Information Act 1989 (“the FOI Act”) seeking access to documents concerning the parking practice at Sydney Boys High School and Sydney Girls High School. Following correspondence between the parties the application was narrowed to a request that the respondent provide the applicant with documents in relation to:

a. the authority for the parking practice at Sydney Boys High School and Sydney Girls High School, including when it was issued and by whom;

b. who affixed the fee, under what considerations the fee was affixed and how the fee was to be collected, and

c. how the fee collecting was to be monitored, how the collected fee was to be disposed and who and how/what was to determine the disposal of the collected fee.

2 The respondent identified a 12-page document that fell within the scope of the request. The applicant was given a copy of the document. The respondent also provided the applicant with the name of a third party who may hold other documents related to his request.

3 The applicant was dissatisfied with the determination and he requested an internal review. The internal review determination did not alter the decision made in the initial determination. The respondent asserted that it does not hold any other documents that fell within the scope of the request. It says that all documents held relating to the request have been released to and it has advised the applicant that it does not hold any further documents.

4 The applicant has applied to the Tribunal for external review of the determination. He asserts that the respondent must hold other documents that fall within the scope of his request and seeks an order from the Tribunal that requires the respondent to locate those documents and provide him with a copy of them.

The Jurisdiction of the Tribunal in relation to documents held by an agency

5 The matter came before me for a planning meeting on 21 April 2009 at which time the respondent raised a preliminary issue of jurisdiction. It submits that the only issue before the Tribunal in this matter is the question of the adequacy of the search conducted by the respondent and whether or not the documents requested by the applicant exist. It contends that the Tribunal has no jurisdiction to deal with that issue.

6 A timetable was set for filing of written submissions in relation to the issue of the Tribunal’s jurisdiction and the matter was listed for hearing on 15 June 2009. There was no appearance on behalf of the respondent on that occasions however Ms Bilbe-Taylor had filed written submissions. The applicant did not receive a copy of those submissions prior to the hearing and I allowed him until 26 June 2009 to provide a response. The applicant has filed a considerable amount of material, however none of that material deals with the issue of the Tribunal’s jurisdiction.

The respondent’s submissions

7 In this case the respondent submits that the applicant's request for external review amounts to no more that a request to the Tribunal to order the respondent to undertake a further review of its documents.

8 The respondent relies on the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 ("ADTAP v Commerce") to assert that the Tribunal has no jurisdiction to deal with the issue of whether an agency has properly identified all of the documents that it holds that are captured by an FOI request.

9 The respondent states that it is outside the purview of the Tribunal to order an agency to undertake a further review of its documents.

10 Ms Bilbe-Taylor submits that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by an agency in response to a request for access to an agency's documents. She submits that the Tribunal’s jurisdiction is relevantly limited to determinations under section 24 of the FOI Act. Section 24 of the FOI Act requires an agency to determine whether to grant or release documents it holds. She says that in this instance the agency has provided all of the documents it holds to the applicant. Ms Bilbe-Taylor submits that the formation of an opinion that an agency does not hold a document is not a determination for the purposes of section 24.

11 Accordingly, the Respondent submits that a determination should be made in favour of the respondent.

The applicant's submissions

12 The applicant's case is essentially that the respondent has failed to conduct diligent searches for the document he has requested and that all reasonable steps have not been taken to locate the documents sought. He identified the type of documents that he asserts should exist and alleges illegal and corrupt practices on behalf of the respondent to withhold those documents.

13 The applicant did not provide any submissions that address the jurisdictional issue.

Relevant legislation

14 Section 24 of the FOI Act provides:

24 Determination of applications

(1) After considering an application for access to a document, an agency shall determine:

(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given—any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.

(2A) Nothing in subsection (2) prevents an agency from determining that access should be given to the document even though more than 21 days have elapsed after the application was received by the agency. Sections 64 and 65 apply to access given pursuant to such a determination in the same way as they apply to access given pursuant to any other determination under this Act.

(3) This section does not require an agency to determine an application that the agency has transferred to another agency under section 20 or has refused to continue to deal with under section 22.

15 Section 53 of the FOI Act provides:

53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

…

(3) For the purposes of this section, a person is aggrieved by a determination:

(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that:

(i) an agency or Minister refuses to give the person access to a document, or

(ii) access to a document is to be given to the person subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or

(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or

(b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies—if:

(i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or

(ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or

(c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49—the determination is to the effect that an agency or Minister refuses to amend the agency’s records or that Minister’s records, as the case may be, in accordance with the application,

and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.

...

16 I agree with Ms Bilbe-Taylor’s formulation of the issue to be determined. The issue of jurisdiction arose with respect to the search undertaken by the respondent. The respondent has asserted that it has identified all the documents it holds that fall within the scope of the request.

17 By virtue of the Court of Appeal decision in ADTAP v Commerce the Tribunal does not have the jurisdiction to direct the respondent to search for additional documents. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the scope of a request for access. Only the Ombudsman can investigate a complaint that an agency has not properly attempted to locate all relevant documents.

18 In Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264 at paragraphs [32] to [38] Judicial Member Pearson summarised the applicable principles from ADTAP v Commerce:

32 As noted by Beazley JA (at [75]), the matter was argued in the Court of Appeal as if the question was whether the Tribunal had jurisdiction to determine the sufficiency of search by an agency in respect of an application for access to documents. The answer provided by the Court of Appeal was as follows:

(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under section 24 of the Freedom of Information Act 1989;

(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of section 24;

(c) the jurisdiction of the Tribunal conferred by section 53 of the Freedom of Information Act 1989 does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to sections 17 and 18 of the Freedom of Information Act 1989.

33 Beazley JA held that a statement by an agency that a document does not exist, or that it does not have a document, cannot be construed as a refusal to give access to a document. Her Honour held (at [61]):

Section 25 complements section 24. Section 24 governs an agency’s responsibility and obligations under the FOI Act after it has received an application. The right to access is a statutorily conferred right and an agency’s obligations relating to granting access and the circumstances in which it may refuse access are also statutorily prescribed. Leaving aside the situation where an agency fails to determine an application within 21 days, giving rise to a deemed refusal: section 24(2); an agency is statutorily required to make a determination in relation to the application. There are, relevantly for present purposes, only two available determinations that may be made: to grant access or to refuse access. A determination to refuse access may be made on one or more of the bases specified in section 25. The section, properly construed, does not permit other circumstances to be taken into account.
34 Beazley JA set out the ambit of the review jurisdiction conferred by section 53 of the FOI Act in the following terms:
[68] … Section 53 provides for the review of a determination. The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in section 53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a "determination within the meaning of section 24(1).
35 Beazley JA concluded (at [76]) that there is nothing in the FOI Act that confers jurisdiction on the Tribunal to conduct a review of, or enquiry into, the sufficiency of an agency's search for documents.

36 Basten JA held (at [108]):

… However, consistently with the scope and objects of the legislation and the expressed intention that the FOI Act shall be applied so as to further those objects and so as to facilitate and encourage the disclosure of information (section 5(3)), section 25 should be seen as an exclusive statement of grounds on which access may be refused.
37 Beazley and Basten JJA, with whom Giles JA agreed, noted that the failure of an agency to consider or adequately consider an application could be the subject of a complaint to the Ombudsman.

38 The limits on the Tribunal's jurisdiction, as determined by the Court of Appeal, apply regardless of when the applicant applied for review. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the terms of a request for access. That would still be the case where other documents are subsequently found, as in this matter where Constable Buckley was able to locate a note in his notebook that related to the applicant. Only the Ombudsman can investigate a complaint that an agency has not properly attempted to locate all relevant documents. The respondent has provided access to what it says are the only documents that fall within the scope of the applicant's request for access request. The applicant's contention that there must be more documents is not a determination reviewable under section 53. In the absence of jurisdiction, the appropriate course is to dismiss the application.

19 I agree with that summary. Since the Court of Appeal handed down its decision in ADTAP v Commerce there have been a number of matters dealing with the issue of the Tribunal’s jurisdiction to deal with the issue of the sufficiency of an agency's search for documents.

20 The Appeal Panel considered the implications of the decision in McGuirk v Attorney General of NSW [2008] NSWADTAP 81. The Appeal Panel said that the Court of Appeal's conclusion was "clear and unequivocal in its conclusion" and at paragraph [14] stated:

"That conclusion was that, regardless of the reason for a determination by a Minister or an agency (under s 28(1)(b)) that it does not hold a document, that determination is not reviewable by the Tribunal."

21 In Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86, the Appeal Panel said that the Tribunal has no jurisdiction to look beyond the agency's assertion that it had given full access to the only document located, even where a senior officer of an agency had previously said that additional documents falling within the FOI request were held.

22 It follows, in my view, that the Tribunal has no jurisdiction to deal with the issues raised by the applicant. Accordingly, the application should be dismissed.

Orders

The Application for review is dismissed.