Sajn Commissioner of Police, New South Wales Police

[2008] NSWADT 241

CITATION:	Sajn Commissioner of Police, New South Wales Police [2008] NSWADT 241
DIVISION:	General Division
PARTIES:	APPLICANT Danica Maria Sajn RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	073383
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	8 April 2008
DATE OF DECISION:	28 August 2008
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Jurisdiction - Late application to the Tribunal
MATTER FOR DECISION:	Preliminary issue
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50 Sawires v Commissioner of Police, New South Wales Police [2008] NSWADT 91 McDonald and Anor v Director General, Department of Lands [2008] NSWADT 25
REPRESENTATION:	APPLICANT In person RESPONDENT K Sheather
ORDERS:	1. I find that Ms Sajn’s application to review the decision of the Commissioner of Police made under the Freedom of Information Act 1989 was made out of time. 2. If Ms Sajn wishes to apply for an extension of time under s.57 of the Administrative Decisions Tribunal Act 1997, in which to bring that application, she shall make such application by 20 September 2008, failing which this application will be dismissed for want of jurisdiction without further notice. 3. In the event that Ms Sajn does apply for an extension of time, then the application shall be listed for a directions hearing before me, at a time and date to be fixed by the Registrar, at which time that issue will be considered

Introduction

1 Ms Sajn has applied to the Tribunal to review the decision made by the Commissioner of Police with respect to her application for access to documents received on 26 April 2008 under s.17 of the Freedom of Information Act 1989. In that application Ms Sajn requested:

Complete reports of the following investigative reports into complaints of police conduct: PO601099, PO603932, PO603820.
Those reports relate to the internal investigation of complaints made by Ms Sajn in respect of the conduct of police officers who were investigating allegations of criminal acts she made against a third person.

2 S.24(2) gives an agency 21 days in which to determine an application under the Freedom of Information Act 1989, failing which the application is taken to have been refused. As a result the Commissioner was required to determine the application by 18 May 2008, failing which there would be a deemed refusal of the application for access to the documents.

3 On 28 May 2007 the Commissioner of Police determined to release PO601099 and PO603932 to Ms Sajn with substantial deletions made on two grounds. First, that their disclosure would involve the unreasonable disclosure of information concerning the personal affairs of a person (Clause 6(1) of Schedule 1). Secondly, that disclosure would have a substantial adverse effect on the management or assessment by the Commissioner on the Commissioner’s personnel (Clause 16(a)(iii) of Schedule 1). In respect to PO603820 the Commissioner released a letter, dated 15 September 2006, in full and advised that, because no investigation had been carried out, no report could be located. In that letter the Commissioner advised that Ms Sajn had 28 days in which to request a review by this Tribunal of that decision.

4 Ms Sajn is taken to have received that letter on 4 June 2007: s.60(b). On 13 August 2007 Ms Sajn sought an internal review of that decision under s.34 of the Freedom of Information Act 1989 insofar as it related to the decision to release documents with deletions. That application for internal review was made outside of the times specified by s.34(e), which require that an internal review be requested within 28 days of the notice being given, or where there is a deemed refusal under s.24(2), within 49 days of the filing of the original application. Ms Sajn request for internal review was considerably out of time.

5 On 16 November 2007 the internal review was completed. The internal review officer confirmed the decision to release the documents with the same deletions, but relied only on the second ground originally relied on: that disclosure would have a substantial adverse effect on the management or assessment by the Commissioner on the Commissioner’s personnel and would by contrary to the public interest (Clause 16(a)(iii) and (b) of Schedule 1). In that internal review decision the review officer apologised for the delay in providing the decision.

6 S.34(6) requires that an agency determine a request for internal review within 14 days, failing which the agency is taken to have made a decision refusing access to the documents requested. In this case, that means there was a deemed decision to refuse Ms Sajn access to the documents made on 27 August 2007. None of the correspondence sent to Ms Sajn by the Commissioner alerted her to this possibility.

7 On 21 December 2007 Ms Sajn lodged with the Tribunal an application to review the decision made on 16 November 2007. She received that decision on 19 November 2007. S.54(a) provides that a review application is to be made “within 60 days after notice of the determination to which it relates is given to the access applicant.”

8 Ms Sajn’s application for review was listed before me for two planning meetings on 22 January 2008 and 4 March 2008. At those meetings a jurisdictional was identified. It concerned whether Ms Sajn had filed her review application in time, on the basis that the determination made by the Commissioner was not that contained in the internal review dated 16 November 2007, but a the deemed refusal to give her access to the documents which was taken to be made on 17 August 2007.

9 It was agreed that the parties would provide written submissions on this issue and that I would then determine it on the papers. Neither party has filed submissions, although the agency made its position clear in a letter of 31 January 2008. There has been a delay in providing this decision. This is partly due to the fact that I chose not to finally determine the issue, pending the outcome of a case before the Appeal Panel concerning similar issues. That case has now been determined: LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50.

Consideration

10 The problem which confronts Ms Sajn is that the operative internal review decision in this case is the deemed refusal, which is taken to have been made on 27 August 2008. Her review application to the Tribunal was made on 21 December 2008, significantly outside the 60 day time frame for lodging the appeal.

11 While her failure to seek the internal review in time can also be seen as an obstacle, I think that it can be inferred, from the fact that the agency actually determined the internal review, that the principal officer allowed Ms Sajn further time to lodge her application, under to s.34(2)(e)(iii). The time allowed was until the date the application for internal review was received on 13 August 2007.

12 That, however, does not address the first obstacle. There is now a chain of authority in the Tribunal dealing with the issue of whether a failure to lodge a review application outside the 60 day timeframe set by s.54 applies to deemed decisions. Montgomery JM reviewed those cases in Sawires v Commissioner of Police, New South Wales Police [2008] NSWADT 91 at [19-29] and concluded that the 60 day time frame does apply to deemed decisions. He went on to find at [31], again in accordance with earlier authority developed in the Tribunal, that the power to extend time in which to make applications, given to the Tribunal by s.57 of the Administrative Decisions Tribunal Act 1997, did not apply to an application for review of a decision made under the FOI.

13 In his letter, dated 31 January 2008, Mr Sheather for the Commissioner of Police advanced an argument based on similar reasoning:

The Tribunal does not have the power to deal with the matter at all, as the application was filed out of time. There is, for all intents and purposes, no application on foot. The jurisdiction of the Tribunal has not been enlivened. … In support of this stance we rely upon McDonald and Anor v Director General, Department of Lands [2008] NSWADT 25 where Judicial Member Pearson held at paragraph 28 "...the Tribunal has no power to hear and determine an application for review of such a decision that does not comply with section 54 of the FOI Act. There is no power to extend time for the lodging of an application for review."

14 In LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50, the appeal panel reviewed the authorities concerning the time limits under s.54 of the Freedom of Information Act 1989 and whether the Tribunal’s general power to extend time under s.57 of the Administrative Decisions Tribunal Act 1997 was ousted. The Appeal Panel found, at [49] that the power to extend time under that provision applied to an application for review of a decision made under the Freedom of Information Act 1989. The Appeal Panel concluded at [60]:

… the Tribunal is, … , not precluded from considering an application to extend time. The question will then be whether the applicant has a reasonable explanation for the delay in making the application. In our view, this matter should be approached with some circumspection. The FOI filing period is already a generous one (60 days), as compared to the usual period in the Tribunal (28 days).

15 When it was decided that I would determine the jurisdictional issue with respect to Ms Sajn’s review application on the papers, it was the understanding of all involved that the law, as it then stood, did not enable the Tribunal to extend the time for making a review application under the Freedom of Information Act 1989. The decision in LZ v Office of the Protective Commissioner has changed that. Because of that understanding, I did not explain to Ms Sajn that she could seek an extension of time under s.57, or give either party the opportunity to adduce evidence or make submissions on that issue. In accordance with the Tribunal’s obligations under s.74(a) and (c) of the Administrative Decisions Tribunal Act 1997 I think I should now do so.

16 In my view it is clear that Ms Sajn’s review application was made late and beyond time in which she could seek a review of the operative, deemed decision to refuse her access to the documents. If no extension of time is sought by Ms Sajn under s.57, the Tribunal does not have jurisdiction. If, however, an extension of time is sought and granted, the application can proceed.

Conclusion

17 I propose to record a finding that the application is out of time.

18 I will give Ms Sajn until 20 September 2008 to apply for an extension of time under s.57, failing which her application will be dismissed for want of jurisdiction without further notice.

19 In the event that Ms Sajn does apply for an extension of time, then the application shall be listed for a directions hearing before me, at a time and date to be fixed by the Registrar, at which time that issue will be considered.