Schlebaum v Director General, Department of Community Services and Gliksman

[2001] NSWADT 97

CITATION:	Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97
DIVISION:	General Division
PARTIES:	APPLICANT Dr Anne Schlebaum FIRST RESPONDENT Director General, Department of Community Services SECOND RESPONDENT Michael Gliksman
FILE NUMBER:	013029
HEARING DATES:	30/04/01
SUBMISSIONS CLOSED:	04/30/2001
DATE OF DECISION:	06/07/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT N Sharpe, solicitor SECOND RESPONDENT In person
ORDERS:	I direct that this matter be set down for a hearing on the preliminary question of whether the documents in dispute contain information relating to Dr Schlebaum’s personal or business affairs.

Introduction

1 In March 1997, Dr Gliksman applied to the Director General, Department of Community Services (the agency) for access to information under the Freedom of Information Act 1989 (FOI Act). Dr Gliksman asked for “any written material, including file notes of telephone conversations, from Dr Anne Schlebaum to any DOCS employee, regarding myself, in relation to” a certain matter involving three children.

2 On internal review the agency determined that Dr Gliksman should not be granted access to the four documents that fell within the scope of his request. Dr Gliksman applied to the Tribunal for a review of that determination.

3 On 14 July 2000 the Tribunal directed the agency to consult with certain people, including Dr Schlebaum, on the basis that the documents contained information concerning those people’s personal and/or business affairs. Dr Schlebaum’s representative advised the agency that Dr Schlebaum opposed the release of all four documents because they would disclose information concerning her business, professional, commercial or financial affairs and their disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (See Cl 7(1)(c)(i) and (ii) of Schedule 1 to the FOI Act.)

4 At a directions hearing on 8 August 2000, the agency advised the Tribunal that Dr Schlebaum objected to the release of the four documents. As a result of an application by Dr Gliksman to the Tribunal on 9 October 2000, the Tribunal made an order, by consent, under s 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act) remitting the decision not to release the four documents to the agency for reconsideration. The agency set aside its original decision and granted Dr Gliksman access to all four documents. That decision was subject to the proviso that the agency would first have to consult with people whose personal or business affairs would be disclosed if those documents were released. The agency also formed the view at that stage that nothing in the documents concerned Dr Schlebaum’s business or personal affairs and she was not consulted. Dr Gliksman subsequently withdrew his application to the Tribunal under s 65(4)(b)(ii) of the ADT Act.

5 The agency did not formally notify Dr Schlebaum of their decision to grant Dr Gliksman access to the documents. She found out that the agency had reversed its decision through a telephone call with an officer of the agency on 2 February 2001. I understand that this was because the agency took the view that the documents did not concern her personal or business affairs and she did not need to be consulted or notified of the decision.

6 On 6 February 2001, Dr Schlebaum applied to the Tribunal for a review of the agency’s decision to grant access to the documents subject to consultation with certain parties. She also applied for an urgent stay on the same day. I made Dr Gliksman a second respondent to Dr Schlebaum’s application. I also granted a stay in relation to the agency’s decision to provide access to the documents under review pending further order of the Tribunal.

7 I raised a concern at the Directions Hearing on 5 April 2001 that the Tribunal may not have jurisdiction to hear Dr Schlebaum’s application because it may be out of time. I directed each party to file written submissions on that issue and decided to determine that issue “on the papers” under s 76 of the ADT Act.

8 Dr Schlebaum made no submissions on the question of jurisdiction. Dr Gliksman made a written submission on 6 May 2001 saying, among other things, that Dr Schlebaum’s application should not be accepted because it is out of time. The agency made a detailed written submission on 10 April 2000.

Agency’s submission

9 The agency submitted that Dr Schlebaum is not an “interested person” as defined in s 55(1)(a) of the ADT. On that basis her application should be dismissed. Even is she is an “interested person” the application is out of time and the Tribunal has no power to extend that time.

Reasons and decision

10 The reviewable decision under consideration is the agency’s decision to grant access to the four documents requested by Dr Gliksman. Dr Schlebaum is seeking a review of that decision, but can only do so if she meets the requirements set out in s 55 of the ADT Act. Those provisions are as follows:
(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and
(b) an internal review is taken to have been finalised under section 53 (9), and
(c) the application is made in the manner prescribed by the rules of the Tribunal, and
(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).
Note. Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

Is Dr Schlebaum an interested person?

11 To be an “interested person” an applicant must be entitled under the FOI Act to make an application to the Tribunal for a review of a reviewable decision. The FOI Act extends that entitlement to a person who is “aggrieved by the determination”. Such a person is defined in s 53(3) of the FOI Act and includes:
(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,


12 In the agency’s submission, the only basis on which Dr Schlebaum could be an aggrieved person is that the agency should have, but has not, obtained her views: s 53(3)(b)(i). The agency chose not to consult Dr Schlebaum after the Tribunal remitted the decision for reconsideration, because they had concluded that none of the documents concerned her personal or business affairs. (See FOI Act s 31(1) and s 32(1).)

13 An alternative view is that Dr Schlebaum is an aggrieved person because the agency “should have, and has” obtained her views (at the direction of the Tribunal) but subsequently made a determination which was not in accordance with those views. Dr Schlebaum’s application for an urgent stay filed on 6 February 2001 states, in part, that “I was only told of this decision (against my expressed wishes) on 2/2/01 by David Croke (DOCS lawyer) verbally, not given the required 60 days notice.” The reference to her “expressed wishes” indicates that Dr Schlebaum believed that she was an aggrieved person under s 53(3)(b)(ii) of the FOI Act because the agency “should have, and has” obtained her views, “but the determination is not in accordance” with those views.

14 The agency “conceded” that they had not obtained Dr Schlebaum’s views, but the facts appear to be otherwise. In paragraph 4 of the agency’s submission they make it clear that the agency did know Dr Schlebaum’s views when they made their decision.

15 Whether 53(3)(b)(i) or (ii) is the provision relied on by Dr Schlebaum, she will only be an aggrieved person if the agency “should have” taken such steps as are reasonably practicable to obtain her views. The agency has submitted that they were not obliged to obtain her views because the documents do not concern her personal or business affairs. This is a matter which the Tribunal would have to determine as a preliminary issue if the other elements of s 53 of the ADT Act are satisfied.

16 I do not intend to deal with the requirements under s 55(b) or (c) of the ADT Act.

Was Dr Schlebaum’s application made within time?

17 Another requirement of s 55 of the ADT Act is that “the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).” However, s 53(5) of the FOI Act provides that:
(5) The provisions of this Division apply to a review application to the exclusion of section 55 (1)(d), section 58 and Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

18 Section 53(5) of the FOI Act makes it clear that s 55(1)(d) of the ADT Act does not apply to review applications made under the FOI Act. In addition, s 40 of the ADT Act states, so far as is relevant, that:
(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).
(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

19 The only provision in the FOI Act which relates to the time within which an application must be filed is s 53. That section states that:
A review application is to be made:
(a) except as provided by paragraph (b) within 60 days after notice of the determination to which it relates is given to the access applicant, or


20 Paragraph (b) is not relevant to the circumstances of this case.

21 “Access applicant” is defined in s 52B of the FOI Act to mean “a person who has made an access application.” “Access application” is defined to mean “an application for: (a) access to a document of an agency or Minister, or (b) an amendment to an agency's or Minister's records.”

22 Dr Schlebaum is not an “access applicant” because she did not apply for access to or amendment of documents. Dr Gliksman is the “access applicant” and notice of the decision to provide him with access to the documents in question was given on 30 October 2000. Sixty days from 30 October 2000 is 29 December 2000. Dr Schlebaum lodged her application on 6 February 2001. Consequently it is out of time.

23 Under s 31 and 32 of the FOI Act, an agency is required to notify a third party of its intention to grant access to documents to which those third parties have objected. The agency is also required to notify third parties of their rights of review and appeal. The provision of s 31 are set out below. The words in bold are discussed later in the decision. Section 32 is in similar terms but relates to financial, rather than personal, affairs.
(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).
(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.
(3) If:
(a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and
(b) the views of the person concerned are that the document is an exempt document by virtue of clause 6 of Schedule 1, the agency shall:
(c) forthwith cause written notice to be given to the person concerned :
(i) that the agency has determined that access to the document is to be given, and
(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and
(iii) of the procedures to be followed for the purpose of exercising those rights, and
(d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.

24 Section 53(a) provides that the time for lodging an application for review to the Tribunal runs from the date notice of the determination is given to the access applicant. Section 31(3)(c) provides that the agency must also give written notice to a third party who has objected to the release of the documents “forthwith”. Ideally notice should be given to the access applicant and to any third party on the same day. But whether notice to a third party is given on the same day or shortly after, an agency is obliged to advise a third party of his or her rights of review to the Ombudsman and the Tribunal and the procedures to be followed. This means that, among other things, the agency must advise the third party of the date by which any application to the Tribunal must be lodged. That date will be 60 days from the date notice of the determination is given to the access applicant.

25 This case is complicated by the fact that the agency did not notify Dr Schlebaum of the decision, as envisaged by s 31(3) and s 32(3) of the FOI Act. They did not notify her because they believed that the documents did not contain information relating to her personal or business affairs. Again, whether or not the documents do contain such information is a preliminary question that the Tribunal would have to decide before determining whether there is any scope for extending the time.

26 In view of my conclusions, I direct that this matter be set down for a hearing on the preliminary question of whether the documents in dispute contain information relating to Dr Schlebaum’s personal or business affairs. The Registry will contact parties to arrange a suitable date.