Scholes and Decision Maker (Freedom of information)

[2018] AATA 4091

Scholes and Decision Maker (Freedom of information) [2018] AATA 4091 (9 October 2018)

Division:Freedom of Information Division

File Numbers:         2018/4559 and 2018/4560

Re:ALISTAIR SCHOLES

APPLICANT

AndDECISION MAKER

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date of decision:               9 October 2018  

Date of written reasons:        31 October 2018  

Place:Melbourne

The Tribunal decides that, as it does not have the jurisdiction to consider the applications for review, those applications are dismissed.

.......[sgd]...............................................................

Deputy President S A Forgie

PRACTICE AND PROCEDURE – JURISDICTION – application for review of decisions relating to requests for access to documents – where no IC review application made and therefore no IC decision made – no jurisdiction to review decisions of which review sought – applications dismissed

Legislation

Administrative Appeals Tribunal Act 1975 ss 25(1), 25(41), 43

Administrative Decisions (Judicial Review) Act 1977 s 13(1)

Freedom of Information Act 1982 ss 15AC, 24(1)(b), 53A, 53B, 54B, 54C, 54L, 54M, 54W, 55K, 57A, 70; Division 4 of Part VII

Tribunals Amalgamation Act 2015 s3; Schedule 1, item 40

REASONS FOR DECISION

Deputy President S A Forgie

1. Mr Alistair Scholes applied to the Tribunal on 13 August 2018 for review of a decision made by the Australian Federal Police (AFP) on 7 June 2018: File No. 2018/4559. On the same day, he applied for review of a decision of Mr Guy O’Brien, Corporate Counsel, in the Department of Foreign Affairs and Trade (DFAT) dated 3 August 2018: File No. 2018/4560. I decided that the Tribunal does not have jurisdiction to review either decision and gave him oral reasons. He has now asked for written reasons. Although I am not obliged to do so under s 43(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) as I have not made a decision under s 43 after reviewing the decision, I am of the view that I am obliged to do so under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 as it is a decision that resolves a substantive issue being the Tribunal’s jurisdiction to consider his applications.    

BACKGROUND

1. Mr Scholes alleges that DFAT authorised the extraction of Mr Scholes from his fiancée’s family home in Nigeria and his repatriation to Australia.  He believes that it did so after accepting false information given to it by one of his fiancée’s relatives regarding his safety and wellbeing in Nigeria.  He alleges that despite an alleged conspiracy to kidnap and harm them, he and his fiancée were at her family home in relative safety as the senior elders in the village had arranged for additional security after they had returned to that home under the protection of the local unit of what he called the “Nigerian State Service”.   The extraction and repatriation took place in December 2017. 

1. Mr Scholes complained to the AFP, first by electronic communication on 8 May 2018 and then in hard copy form on 17 May 2018, about what he describes as his “kidnapping” from Nigeria.  On 19 June 2018, the AFP advised Mr Scholes that the information that he had provided was not sufficient to raise a conduct issue or practices issue that would enable Professional Standards to investigate the matter he had raised.  If he wished to pursue his complaint, the AFP asked Mr Scholes to provide specific details relating to the conduct of the investigators.

1. On 8 May 2018, Mr Scholes had made a request under the Freedom of Information Act 1982 (FOI Act) to the AFP.  The scope of that request is not apparent from the documents I have but what is apparent is that the AFP transferred part of it to DFAT on the basis that the subject matter of that part of the request was more closely connected with its functions rather than those of the AFP.  In a letter dated 7 June 2018, the AFP told Mr Scholes that the following part of his request had been referred to DFAT:

   “·         The DFAT authorised extraction and repatriation of the undersigned to Australia December 2017.  In particular the ativies [sic] of … [fiancée’s family member] whom [sic] was involved in organizing the aforementioned kidnapping and furnished information to DFAT/Australian High Commission Abjura Nigeria.

   ·Documents or otherwise generated in relation to the aforementioned incidents.

   ·All information sourced by DFAT utilized to justify the extraction and repatriation of the undersigned to Australia December 2017 to support DFAT claim of immediate danger o [sic] the undersigned.”

1. The AFP told Mr Scholes that it would continue to process the remainder of his request.  Mr Scholes wrote to the Office of the Australian Information Commissioner (OAIC) on 23 July 2018 about his request under the FOI Act to the AFP. 

1. In the meantime, DFAT had written a letter dated 3 August 2018 addressed to Mr Scholes.  It refers to its having corresponded with him during June 2018 and continued:

   “On 13 June, the Department advised you of its intention to refuse to process your request on the basis that processing it would result in a substantial and unreasonable diversion of the Department’s resources from its other operations. I note the Department suggested you could narrow the scope of your request to your consular full case report and cables held in Canberra as this would remove the practical refusal reason.

   On 15 June, you advised the Department you declined to narrow the scope of yoru request. On 26 June, Ms Buckingham advised you the Department was refusing to process your request as processing it would result in a substantial and unreasonable diversion of the Department’s resources from its other operations. On 27 June, you requested internal review of Ms Buckingham’s decision.”

1. DFAT’s letter of 3 August 2018 went on to set out the reasons for affirming Ms Buckingham’s original decision on internal review.  DFAT’s Corporate Counsel, who conducted the review, wrote:

   “After carefully considering your request and the results of the preliminary document searches, I have decided to uphold Ms Buckingham’s decision that the processing of your request would result in a substantial and unreasonable diversion of the Department’s resources from its other operations. Preliminary document searches have identified a significant amount of material that is potentially relevant to your FOI request, including cables, your consular case file, over 240 email records and potentially documents held at Abuja Post. In order to process your request, a departmental officer would have to examine each of the above records to determine whether they fall within the parameters of parts 3 and 6 of your FOI request. Based on preliminary document searches conducted, I am satisfied that processing your request as it currently stands, would result in a substantial and unreasonable diversion of the Department’s resources from its other operations as provided for in section 24(1)(b) of the FOI Act.”

1. The letter concluded by setting out Mr Scholes’ review rights under s 54L of the FOI Act regarding DFAT’s internal review decision to refuse to process the request for access to documents.  It also referred to Mr Scholes’ right to complain to the Australian Information Commission (AIC) under s 70 regarding DFAT’s performance of its functions or exercise of power under the FOI Act.

1. The OAIC acknowledged Mr Scholes’ letter to it dated 23 July 2018.  It did so in a letter dated 7 August 2018 and with the subject line: “Your complaint about the Australian Federal Police”.  In its letter, the OAIC told Mr Scholes that it had initiated preliminary enquiries with the AFP.  Once the AFP had responded, the OAIC would contact him. 

CONSIDERATION

Administrative Appeals Tribunal Act 1975

1. The Tribunal does not have an unlimited power to review the merits of an administrative decision made by a Commonwealth agency or decision-maker. Its power is limited to those decisions in respect of which a person affected by a particular decision is entitled under an enactment to make an application to the Tribunal for its review. This follows from the fact that provision is made in s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) that an enactment may provide that applications may be made to the Tribunal:

   “(a)     for review of decisions made in the exercise of powers conferred by that enactment; or

   (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

Given that the Tribunal is given powers in relation to applications made to it and in relation to the review of decisions as well as authority to determine the scope of review of a decision under s 25(4A), it must be implied that the Tribunal is given jurisdiction to consider those applications and review the decisions.[1]

[1] Before its repeal by the Tribunals Amalgamation Act 2015; s 3 and Schedule 1, Item 40, s 25(4) expressly stated that this was so: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

Identifying the decisions in respect of which Mr Scholes has applied to the Tribunal

1. The first thing to do is to characterise the decision, of which review is sought.  In this case, there are two decisions.  One may be characterised as relating to Mr Scholes’ request for access to documents containing certain information under the FOI Act.  That decision is dated 3 August 2018.  The other is dated 7 June 2018 and may be characterised as a decision to transfer part of Mr Scholes’ request for access from the AFP to DFAT.  Mr Scholes has also included a copy of a letter dated 19 June 2018 from the AFP and addressing matters in relation to his complaint about events in Nigeria.  He has not described that as a decision of which he is seeking review. 

Identifying the decisions in respect of which Mr Scholes may apply to the Tribunal

1. When decisions are made, as have been made in this case, in relation to a matter relating to a request under the FOI Act, the enactment that is relevant is the FOI Act.  Section 57A(1) sets out that an application may be made to the Tribunal for review of:

   “(a)     a decision of the Information Commissioner under section 55K on an IC review;

   (b)if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review) – the IC reviewable decision in relation to which the Information Commissioner makes the decision.

   Note 1:An application for review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975).

   Note 2:Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.”

1. It follows that the two decisions of which Mr Scholes seeks review must be either a decision made under s 55K or under s 54W before he is entitled to make an application to the Tribunal for their review.  What are those decisions? 

   (1)The Information Commissioner (IC) makes a decision under s 55K after undertaking an IC review. 

   (a)An “IC review” is a review of an IC reviewable decision.[2] 

   [2] FOI Act; s 54G

   (b)An “IC reviewable decision” is a decision covered by either ss 54L(2) or 54M(2).[3] 

   [3] FOI Act; s 54K

   (i)Decisions referred to in s 54L(2) are access refusal decisions and cover the following decisions:

   “(a)     an access refusal decision;

   (b)a decision made by an agency on internal review of an access refusal decision (see section 54C);

   (c)a decision refusing to allow a further period for making an application for internal review of an access refusal decision (under section 54B).

   Note 1:…

   Note 2:…”

   ·An “access refusal decision” is any one of the decisions set out in s 53A:

   “(a)     a decision refusing to give access to a document in accordance with a request;

   (b)a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates;

   (c)a decision purporting to give, in accordance with a request, access to all documents to which the request relates, but not actually giving that access;

   (d)a decision to defer the provision of access to a document (other than a document covered by paragraph 21(1)(d) (Parliament should be informed of contents));

   (e)a decision under section 29 relating to imposition of a charge or the amount of a charge;

   (f)a decision to give access to a document to a qualified person under subsection 47F(5);

   (g)a decision refusing to amend a record of personal information in accordance with an application made under section 48;

   (h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48.

   Note: If a decision is not made on a request under section 15 within the time required by that section, a decision is taken to have been made to refuse to give access to a document in accordance with the request (see section 15AC).”

   (ii)Those decisions referred to in s 54M(2) are access grant decisions.

   ·The expression “access grant decision” is defined in s 53B.[4]  Each access grant decision is set out in a table and is identified by reference to the nature of the documents to which access has been requested.

   [4] FOI Act; s 4(1)

   (c)The application that is made for review of either an access refusal decision or an access grant decision is known as an “IC review application” and is made in the manner specified in Division 4 of Part VII of the FOI Act.[5]  

   (i)In relation to an access refusal decision, the IC review application may be made by or on behalf of the person who made the request to which the decision relates.[6] 

   (ii)In relation to an access grant decision, an IC review application may be made by or on behalf of the person who made the request where the access grant decision is a decision made by an agency on internal review of an access grant decision under s 54C.[7]  In any other case, an affected third party for the document may make an IC review application where an access grant decision or a decision made by an agency on internal review of an access grant decision has been made under s 54C.[8]

   (2)The IC may decide that he will not undertake an IC review or, if he has already started it, decide not to continue it.  If he makes either of those decisions, he does so under s 54W of the FOI Act.  

   (a)One of the grounds on which the IC may make such a decision arises under s 54W(b) if:

   “the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision is to be considered by the Tribunal.”

   [5] FOI Act; s 54H

   [6] FOI Act; s 54L(3)

   [7] FOI Act; s 54M(3)(b) and 54M(2)(b)

   [8] FOI Act; s 54M(3)(a) and 54M(2)

1. Before the IC may make a decision under either ss 54W or 55K, a person entitled to make an “IC review application” must have made such an application under Division 4 of Part VII of the FOI Act for review of an IC reviewable decision.[9]  One of the requirements specified in Division 4 is that the IC review application is sent to the IC by one of the means specified in s 54N(4).  Once the IC review application has been received by the IC, he must conduct his review bearing in mind the obligations imposed by Divisions 5 to 9 of Part VII.

Has Mr Scholes made an IC review application?

[9] FOI Act; ss 54L(1) and 54M(1)

1. Mr Scholes acknowledges that he has not made an IC review application to the IC for review of the decisions from the AFP and DFAT.  In the absence of an IC review application, the IC cannot have, and has not, made a decision under either ss 55K or 54W(b).   In the absence of a decision of that sort, Mr Scholes is not entitled to make an application to the Tribunal for review.  In the absence of an application that Mr Scholes is entitled to make to it, the Tribunal has no power or jurisdiction to review either of the decisions made by the AFP and DFAT.

DECISION

1. For these reasons, I decided that the Tribunal does not have jurisdiction to consider Mr Scholes’ applications and dismissed them.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

...[sgd].....................................................................

Associate

Dated:  31 October 2018

Heard:	9 October 2018
Applicant:	In person