Ugur v Legal Aid New South Wales

[2010] NSWADT 71

CITATION:	Ugur v Legal Aid New South Wales [2010] NSWADT 71
DIVISION:	General Division
PARTIES:	APPLICANT H. E. O. Ugur RESPONDENT Legal Aid New South Wales
FILE NUMBER:	083381
HEARING DATES:	3 August 2009
SUBMISSIONS CLOSED:	10 March 2010
DATE OF DECISION:	19 March 2010
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to records – aggrieved person – dismissal of application on grounds of being misconceived and lacking in substance
LEGISLATION CITED:	Administrative Decisions Tribunal 1997 Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140
REPRESENTATION:	APPLICANT In person RESPONDENT R Graycar, barrister
ORDERS:	Application dismissed

REASONS FOR DECISION

Background

1 This is an application by Mr Ugur, seeking review of a decision of the respondent, Legal Aid New South Wales (‘Legal Aid’), made under the Freedom of Information Act 1989 (‘the FOI Act’).

2 In a letter dated 13 June 2008, Mr Ugur requested that Legal Aid grant him ‘access to all files held by the Legal Aid Commission concerning documents which relate to my personal affairs. I also require a copy of my files.’

3 In an undated letter, Mr Christopher Paul, solicitor Legal Policy Branch of Legal Aid, responded to Mr Ugur’s request. Mr Paul’s determination in regard to Mr Ugur’s FOI request was in the following terms:

‘.....

I have determined to approve release of all documents to you except those which you would already have a copy of, ...

I have considered documents contained in a number of legal aid files which pertain to your various applications for legal aid. Most of the documents on file are documents that you provided to Legal Aid NSW. Those documents which fit into this category are evidently already in your possession, and as indicated above I have not made copies of them for you.

However I have attached some documents which you may not have received copies of. The documents I have provided include some file notes made by solicitors of Legal Aid NSW concerning your applications for aid.

...’

4 In a letter dated 2 October 2008, Mr Ugur made a request for an internal review of Mr Paul’s decision. In that letter Mr Ugur referred to his long relationship with Legal Aid and the fact that he had been in detention for more than 5 years. He said that during his time in detention it was difficult for him to keep a copy of his documents and it was important for him to understand how Legal Aid had come to its decision about his applications for legal aid.

5 Mr Alan Kirkland, Chief Executive Officer of Legal Aid, determined Mr Ugur’s internal review request. He made his determination on 17 October 2008. His determination was contained in a letter, dated that day and addressed to Mr Ugur. Mr Kirkland’s determination was to refuse Mr Ugur access to the documents requested on the grounds that dealing with his FOI request would substantially and unreasonably divert the resources of Legal Aid: see paragraph 25(1)(a1) of the FOI Act. That paragraph relevantly provides as follows:

25 Refusal of access

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

(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.’

6 It was this decision of Mr Kirkland which was originally the decision the subject of review of Mr Ugur’s application to the Tribunal: see section 53 FOI Act and section 38 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

7 In his letter to Mr Ugur, Mr Kirkland explained that he had made his decision on the basis of Mr Ugur having been the source or recipient of the majority the documents on the files relating to him. These included documents ‘such as applications for legal aid, correspondence from Legal Aid NSW and other organisations to you, other documents provided to you as annexures to correspondence, court transcripts, and other documents provided by you to Legal Aid NSW.’ Mr Kirkland went on to say that, in his opinion, it was reasonable to presume that Mr Ugur had a copy these and for this reason it would be an unreasonable diversion of Legal Aid’s resources to deal with his FOI request.

Proceedings before the Tribunal

8 Mr Ugur’s application for review first came before me on 3 February 2009 at a planning meeting. At this planning meeting Dr John Gaudin and Mr Paul, solicitors for Legal Aid, advised that Legal Aid had 13 files that were relevant to Mr Ugur. A printed list of those files from Legal Aid’s TRIM file management system was provided to Mr Ugur. After some discussion Dr Gaudin and Mr Paul agreed that Mr Ugur could view each of these files at the Legal Aid Head Office and identify those documents of which he wanted a copy. Mr Ugur agreed to this course of action. On the basis of this agreement, by consent, I made an order under sub-section 65(1) of the ADT Act and remitted the decision of Mr Kirkland for re-consideration.

9 The matter next came before me, on 19 March 2009, for a further planning meeting. I was informed that Mr Ugur had attended the offices of Legal Aid on 6 February 2009 and that he had inspected files. Mr Ugur however, asserted that he had not been given access to all files that related to him and continued to press his application for review. In light of Mr Ugur’s assertion I made an order that Legal Aid file and serve its reconsidered determination following the remittal on the previous occasion. I ordered that the re-considered determination be filed and served by 30 April 2009 and encouraged the parties to continue exploring a possible resolution to the matters in issue.

10 On 23 April 2009, Legal Aid, filed and served the reconsidered determination of Mr Kirkland. In his re-determination, Mr Kirkland said the following:

‘[It] is appropriate to recognise the significant additional assistance my officers have given you since your application was lodged in the ADT.

In light of this, I consider it appropriate to remake my decision to grant access to documents held by Legal Aid NSW under s. 24(1) of the FOI Act subject to you accepting reasonable opportunities to inspect the documents in person at Head Office, which you have done on four separate occasions.
...’

11 It is this decision of Mr Kirkland that is now the subject of review by the Tribunal: see sub-section 65(4) of the ADT Act.

12 On 18 May 2009, when the matter next came before me at a further planning meeting, Mr Paul, solicitor for Legal Aid, advised that Mr Ugur had again inspected his files on 2 and 3 April 2009. He said that the position of Legal Aid was that the matter had now been resolved and made an application for the application to be dismissed under sub-section 73(5) of the ADT Act. Mr Ugur on the other hand continued to press his application for review. He said he had not been provided with access to all his files and that there were documents missing.

13 After hearing from both parties I set a hearing date for Legal Aid’s application for dismissal and made orders for both parties to file and serve evidence and submissions. Mr Ugur was also directed to file evidence that outlined those documents for which he sought access and which he asserted access has been refused.

14 In response to these orders Legal Aid filed and served an affidavit of Mr Paul and Dr Gaudin on 19 June 2009. A further affidavit of Dr Gaudin was filed on 24 July 2009. Mr Ugur filed and served an affidavit, affirmed by him, on 17 July 2009. These affidavits were all tendered into evidence at the hearing on 3 August 2009.

15 Following the hearing, on 2 September 2009 and 10 January 2010, Mr Ugur filed additional submissions, which, at the direction of the Tribunal’s Registry, he served on Legal Aid. I was not made aware of these submissions until very recently. I have read the body of the submissions. With one exception, these submissions do not raise any matter that is relevant to this application as they do not concern Mr Ugur’s FOI request for access to documents or the determinations of Legal Aid in regard to that request. Accordingly, I have not considered them any further. As I mentioned to Mr Ugur on a number of occasions, the Tribunal’s jurisdiction is limited to reviewing the re-considered decision of Mr Kirkland in regard to his FOI request of 13 June 2008 (see paragraph 2 above).

16 The exception raised by Mr Ugur in his submissions of 22 January, is my refusal to adjourn the hearing of Legal Aid’s dismissal application on 3 August 2009. Mr Ugur sought an adjournment so as to allow him the opportunity to obtain legal advice. His application for adjournment was opposed by Ms Graycar of counsel appearing for Legal Aid. I did not grant Mr Ugur his application for adjournment as there had been ample opportunity for him to obtain legal advice on the matters that were in issue in this application and over which the Tribunal had jurisdiction. It was apparent from the material filed by Mr Ugur that there were a number of unrelated matters that were of concern to him and it was in this regard that he wished to seek legal advice. For the reasons I have stated these other unrelated matters were not matters over which the Tribunal had jurisdiction.

Issues

17 The main issues for determination is:

(a) whether Mr Ugur is an aggrieved person by reason of section 53 of the FOI Act; and

(b) whether Mr Ugur’s application for review is ‘misconceived or lacking in substance’ and should be dismissed: see sub-paragraph 73(5)(g)(ii) of the ADT Act.

Is Mr Ugur an aggrieved person under section 53 of the FOI Act?

18 As I have indicated, the Tribunal’s decision to review a decision of an administrator arises from section 38 of the ADT Act. That section relevantly provides as follows:

38 Conferral of jurisdiction to review reviewable decision

(1) Conferral of review jurisdiction The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:

(a) in the exercise of functions conferred or imposed by or under the enactment, or
(b) in the exercise of any other functions of the administrator identified by the enactment.

Note: Section 5 defines "enactment" to mean:
(a) in relation to a reviewable decision-an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or
(b) in any other case-an Act (other than this Act) .

19 As indicated in the note to this section, for the Tribunal to have jurisdiction to review a decision of an administrator, another Act such as the FOI Act must contain a provision that confers jurisdiction on the Tribunal to review that decision.

20 Section 53 of the FOI Act is such a provision. It relevantly provides as follows:

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.

(2) …

(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) …

(c) …

21 It is the contention of Legal Aid that as a consequence of the decision of Mr Kirkland’s re-considered decision to grant Mr Ugur access to all documents in files that relate to him, he is no longer a person falling within the terms of section 53(3)(a) of the FOI Act.

22 It is not disputed that at the time Mr Ugur made his application for review he was a person aggrieved by reason of sub-paragraph 53(3)(a)(i) of the FOI Act and the Tribunal had jurisdiction to hear and determine his application. Being vested with jurisdiction, section 53 does not, in my opinion, operate so as to deprive the Tribunal of jurisdiction where an applicant is subsequently granted access to those documents for which he/she sought access. Nor do I understand the submission of Legal Aid to be contending that the section has such an effect. What it appears to be arguing is that Mr Ugur is no longer being refused access to documents and the matter is accordingly resolved.

23 Although access is no longer refused, the form of access is arguably contrary to that which was sought by Mr Ugur in his FOI request: see sub-section 27(2) of the FOI Act. This in itself may arguably be a basis on which Mr Ugur is aggrieved for the purposes of sub-paragraph 53(3)(a)(i). In any event it is not a matter on which a finding is necessary as the jurisdiction of the Tribunal to hear and determine Mr Ugur’s application is not in issue.

24 However, the issue as to whether Mr Ugur’s FOI request has been resolved is relevant to the issue as to whether his application is now misconceived or lacks substance.

Is Mr Ugur’s application misconceived and lacking in substance?

25 Paragraph 73(5)(b) of the ADT Act provides that the Tribunal may ‘dismiss at any stage any proceedings before it’ where it ‘considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.’

26 As I have already mentioned, the essence of the argument of Legal Aid is that Mr Ugur’s request for access under the FOI Act has been resolved in that Mr Kirkland’s decision, on reconsideration, was to grant Mr Ugur access to the files, held by Legal Aid, which contained documents concerning his personal affairs: see paragraph 2 above.

27 However, as I have mentioned, the form of access was not in accordance with Mr Ugur’s request.

28 Although sub-section 27(2) of the FOI Act requires an agency to provide the FOI applicant with access in the form requested, sub-section 27(3) provides that an agency may refuse access in the form requested and grant access in one of the other forms of access prescribed in sub-section 27(1). One of those forms of prescribed access is giving the person a reasonable opportunity to inspect the document: see paragraph 27(1)(a).

29 In my opinion, in light of the history of this application, there can be little, if any, basis to question Mr Kirkland’s determined form of access.

30 On 6 February 2009, when Mr Ugur first accessed the documents on his files he was in attendance the whole day. In his affidavit Dr Gaudin said Mr Ugur arrived at the offices of Legal Aid at about 9:30am. Dr Gaudin said he gave Mr Ugur all the files he had identified as containing documents relating to Mr Ugur’s legal aid applications. He also gave Mr Ugur a book of posted notes so that he could mark those documents of which he wanted a copy. Dr Gaudin said he arranged for some documents tagged by Mr Ugur to be copied that day and he agreed to forward to Mr Ugur copies of the remaining documents he had tagged, which included a 1600 page report Mr Ugur had provided to his former Legal Aid solicitor. It was Dr Gaudin’s recollection that Mr Ugur had inspected the documents on all the files given to him on that day.

31 Dr Gaudin went on to say that at the end of the day Mr Ugur requested the access to the records relating to 2 complaints he had made against Legal Aid Officers and a letter, referred to on the TRIM list, which made reference to a person with a christian name of ‘ugur’. Under the cover of a letter, dated 19 February 2009, Dr Gaudin forwarded to Mr Ugur copies of the additional documents he had tagged on 6 February and copies of the documents relating to his complaints. Dr Gaudin also advised him that the letter on the TRIM list with the christian name ‘ugur’ did not relate to him.

32 In his affidavit Mr Ugur said that on 6 February he did not look at all the documents as he concentrated on the documents he had sent to his former Legal Aid solicitor to be forwarded to the Human Rights and Equal Opportunity Commission. Mr Ugur went on to say that the solicitor did not do as had instructed him to do. This appears to have caused him some concern. However, it is not a matter over which the Tribunal has jurisdiction. It is noted that in a letter Mr Ugur wrote to Dr Gaudin, on 16 February 2009, he said he had insufficient time to examine all the documents. In that letter he also requested that the originals of letters he had sent to his then solicitors while in detention be returned to him. Dr Gaudin responded to that letter on 24 February 2009 and suggested that Mr Ugur return the copies he had been given and that he would give him the originals of his letters.

33 When Mr Ugur attended the offices of Legal Aid on 27 March and 2 and 3 April 2009 to again examine the documents on his files, he did so under the supervision of Mr Paul. These inspections were for a much shorter period, namely about 1½ hours each time. It was Mr Paul who limited the time, however he also allowed Mr Ugur to make copies of any document he chose. During these inspections Mr Ugur was given access to the documents in files identified by Dr Gaudin and some additional files identified by Mr Paul. In his affidavit, Mr Paul said Mr Ugur met with him on 27 March 2009 at about 9.30. Mr Ugur in his affidavit did not dispute that he was granted supervised access to files on these dates, but he said he was treated unfairly.

34 In his affidavit, Mr Ugur refers to and attaches a copy of a letter he wrote to Mr Kirkland on 17 April 2009. This letter concerns matters that are of no relevance to this application.

35 On 14 May 2009, Mr Ugur wrote to Mr Kirkland in response to his reconsidered-determination of his internal review determination (see paragraph 10 above). The letter was in many respects not responsive to the determination Mr Kirkland had made under the FOI Act in regard to Mr Ugur’s FOI request. For example, in the letter Mr Ugur requested that Legal Aid arrange for written consent to allow him an extension of time to obtain legal advice for the purpose of these proceedings. He mentioned, as he had done on several occasions before the Tribunal that a guardianship order relating to him had lapsed in May 2008. By reason of this he said Legal Aid and other entities had ‘no rights to make decisions in a range of areas including “Legal Advocacy” or “monitoring with advocacy concerning’ him. Mr Ugur appears to have been concerned that Legal Aid and other persons were making decisions on his behalf. So far as this application is concerned, at the hearing on 3 August 2009, Ms Graycar, counsel for Legal Aid, expressly stated that no issue arose as to Mr Ugur’s capacity to represent himself in this application for review. Nor did Mr Ugur’s capacity to represent himself arise in any other way. While Mr Ugur did not always accept many of the explanations that were given to him, I formed the opinion that he did understand what was explained to him about the nature of these proceedings and the limits of the Tribunal’s jurisdiction.

36 In his letter of 14 May 2009, Mr Ugur did express concern about the restricted access he had been given to the documents on the files relating to him. While I can understand that this might be of concern to him, in my opinion, this is not a matter falling within the Tribunal’s jurisdiction. This does not mean that he does not have another form of redress if he is concerned about the time he is given to view his files again. The difficulty he has is that he has not at any time approached Mr Kirkland to arrange further access to his files at a time that is convenient to him and Legal Aid.

37 Nevertheless as I have explained, even prior to Mr Kirkland’s reconsidered decision of 23 April 2009, Mr Ugur had been granted considerable access to his files and copies of documents in these files, selected by him, had been copied for or by him. The effect of Mr Kirkland’s decision was to give him further access to the files and the documents therein.

38 The only issues raised by Mr Ugur which relate to his FOI request are his assertion that Legal Aid has removed documents from the files to which he has had access or that they have failed to locate all relevant documents and Mr Paul’s refusal to grant him access to the TRIM file management system of Legal Aid.

39 In the absence of Mr Ugur identifying the type of document which he said was removed from the files, I accept the evidence of Dr Gaudin and Mr Paul that no documents were removed or that they failed to adequately search for relevant documents and files. In any event, as I explained to Mr Ugur on a number of occasions, the Tribunal did not have jurisdiction, in an application for review of a decision made by an agency under the FOI Act, to enquire into the adequacy of search by an agency for the documents requested by an FOI applicant: see Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 at [76], [78] and [135].

40 In his affidavit Mr Paul said he had explained to Mr Ugur that the TRIM file management system did not contain documents concerning his personal affairs. It was the agencies system of recording files created by it and not the documents that were located in each file. Mr Ugur, as I have noted, was provided with a printout from the TRIM file management system of the files that related to him. From these he could see that the system recorded the file number, the status of the file and a description of the subject matter of the file and the type of file it was.

41 I agree with Ms Graycar that Mr Ugur’s request for access to the TRIM file management system is outside Mr Ugur’s FOI request. Ms Graycar went on to argue that the FOI Act does not provide a statutory right to access an agency’s file management system. It is unnecessary for me to decide this issue as I have found that his request does not fall within the FOI request that is the subject of this application.

42 On the basis of my findings above, I agree with Ms Graycar’s argument that there is in substance nothing further for the Tribunal to determine in Mr Ugur’s application to review the reconsidered decision of Mr Kirkland dated 23 April 2009. Accordingly, I find that, following several planning meetings and the re-determined decision of Mr Kirkland, Mr Ugur’s application for review lacks substance and is misconceived. For this reason it is appropriate that the Tribunal dismisses his application under paragraph 73(5)(b) of the ADT Act.