VFRG and Office of the Australian Information Commissioner (Freedom of information)

[2017] AATA 32

VFRG and Office of the Australian Information Commissioner (Freedom of information) [2017] AATA 32 (18 January 2017)

Division:FREEDOM OF INFORMATION DIVISION

File Number:           2016/3289

Re:VFRG

APPLICANT

AndOffice of the Australian Information Commissioner

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Miss E A Shanahan, Member

Date:18 January 2017

Place:Melbourne

The Tribunal refuses to make a Decision under s 42D of the Administrative Appeals Tribunal Act 1975.  

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

Miss E A Shanahan, Member

FREEDOM OF INFORMATION – whether decision should be remitted for reconsideration in accordance with s 42D of the Administrative Appeals Tribunal Act 1975 – claim of fraudulent interpretation of s 47E(d) basis of Applicant’s contentions – limited Statement of Facts and Contentions, T-Documents and other information available to the Tribunal – Applicant opposed to s 42D remittal - request for remittal under s 42D refused

Legislation

Freedom of Information Act 1982 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

Privacy Act 1988 (Cth)

Cases

N1112/00A v Minister for Immigration and Multicultural Affairs (2000) 32 AAR 76

Re NT98/41-48 and Commissioner of Taxation (1998) 39 ATR 1032

Re Lavery and Registrar Supreme Court of Queensland and Ors (No 2) (1996) 23 AAR 52

REASONS FOR DECISION

Miss E A Shanahan, Member

18 January 2017

1. VFRG had lodged a Freedom of Information (FOI) request on 30 March 2015 in relation to access to documents, including those generated electronically, regarding  personal information relating to himself and including opinions as outlined by the Privacy Act 1988 (Cth) (Privacy Act).

2. On 28 April 2016 the Acting Director of the FOI Dispute Resolution Division of the Office of the Australian Information Commissioner (OAIC) provided a decision refusing access to all of the documents in accordance with sections 24A and 47E(d) of the Freedom of Information Act 1982 (Cth) (FOI Act). Section 24A encompasses situations where the documents were lost, non-existent or had not been received. Section 47E(d) applies where documents are subject to public interest conditional exemption as they have a substantial adverse effect of the proper and efficient conduct of the operations of an agency.

3. On 3 November 2016 the Tribunal received a request from the Respondent that the Tribunal, in accordance with s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), remit the matter to the Respondent for reconsideration. Proposed Consent Orders were provided as was the Respondent’s intentions, subject to consent, to release 87 of the 91 documents in dispute, leaving four documents to then form the basis of the substantive hearing and decision in the matter. The possibility of such a remittal under s 42D was apparently first raised with the Applicant in November 2016.

4. The Respondent further requested a directions hearing by telephone (TDH) prior to the date of 30 November 2016 to discuss their proposed request. This date was specified as it was the date on which the Respondent was required to submit their Statement of Facts, Issues and Contentions according to the direction made on 19 October 2016 by Mr Brian Leaver, Conference Registrar of the Tribunal.

5. No Statements of Facts, Issues and Contentions had been received by the Tribunal as at the date of request for the directions hearing. Further, no T-documents had been lodged in accordance with s 37 of the AAT Act. The Applicant later provided a limited Statement of Facts, Issues and Contentions relating only to the requested s 42D remittal on 15 December 2015. The Tribunal therefore lacks detailed documentation and argument in relation to the substantive matter.

6. It is noted that the Applicant, in his Statement of Facts, Issues and Contentions dated 15 December 2016, states that he has made four other applications to the OAIC. According to the Applicant, the majority relate to privacy investigations commencing in 2012 with the last such request being made on 14 September 2016, and none have been resolved to his satisfaction.

   PROCEDURAL ISSUES

7. The Directions made on 19 October 2016 required the Respondent to provide certain documents on or before 30 November 2016, including the Statement of Facts, Issues and Contentions.  The Applicant was to provide his Statement of Facts, Issues and Contentions on or before 30 December 2016 or within 28 days of receiving the Statement of Facts, Issues and Contentions of the Respondent, whichever occurred later. 

8. The Respondent contacted the Tribunal before the set date of 30 November 2016 requesting a TDH in order to discuss the question of a remittal under s 42D. The Applicant was not available until 5 December 2016 and a TDH was listed for that date. Although the hearing on 5 December 2016 commenced, the Applicant stated he was feeling unwell and asked for the matter to be postponed to a later date. His request was granted but it was not possible to reschedule the TDH until 16 December 2016 due to availability issues, predominantly relating to the Tribunal Member.

9. On 2 December 2016 the Applicant, by email, requested the Tribunal enforce its own Directions of 19 October 2016. The Applicant argued that the Respondent was non‑compliant with these Directions on the basis that it had not lodged its Statement of Facts, Issues and Contentions and other documents as required by the Directions.

10. The Tribunal has not held the Respondent non-compliant as VFRG’s non-availability prior to 13 November 2016 and his ill health, albeit beyond his control, on 5 December 2016 contributed to the Respondent’s so-called non-compliance. Any potential non-compliance in this case results from the Respondent’s efforts to resolve or at least limit the scope of contentious issues to be eventually determined by the Tribunal.

11. Mr Holcombe of HWL Ebsworth Lawyers, representing the Respondent, submitted a list of relevant authorities to be considered in relation to the s 42D request on 2 December 2016. VFRG filed a Statement of Facts, Issues and Contentions relating to the substantive matter and contentions relating to the s 42D Consent Order, late on 15 December 2016. Regrettably, as these arrived after the close of business they were not transferred to the Tribunal file at the time of the TDH which was conducted at 1.30pm on 16 December 2016.

12. Fresh proposed or draft s 42D orders were similarly received on 15 December 2016 after the close of business. These were eventually provided to the Tribunal and these draft orders stated as per the email of 15 December 2016 at 6.31pm from Lex Holcombe:

    1.The decision under review be remitted back to the Respondent under section 42D of the Administrative Appeals Tribunal Act 1975.

    2.The directions dated 19 October 2016 be set aside.

    3.The Respondent notify the Tribunal and the Applicant of the remade decision by cob 13 January 2017.

    4.If the Respondent has not set aside the decision and remade it to provide the Applicant with complete access to all documents within the scope of the request by 13 January 2017, directions 5 and 6 apply.

    5.The Respondent must comply with the Practice Direction relating to the Freedom of Information Act 1982 dated 1 July 2015 except to the extent that the Respondent must give to the Tribunal and the Applicant following documents on or before 25 January 2017:

    a)a schedule of the documents to which the claims of exemption relate;

    b)an affidavit or affidavits setting out the evidence to be relied upon in support of the claims of exemption;

    c)a Statement of Facts, Issues and Contentions.

    6.Within 28 days of receiving the Statement of Facts, Issues and Contentions of the Respondent, the Applicant must give to the Tribunal and the Respondent a Statement of Facts, Issues and Contentions in reply.

13. The Respondent had reviewed the decision with respect to the 91 documents in dispute and determined that it was prepared to release 87 documents, which would be given to the Applicant within 28 days of the Order being adopted by the Tribunal or consented to by the Applicant.

14. The Applicant has not consented to the s 42D proposed order, as he considers the Respondent decision is a single entity relating to 91 documents to which the Respondent remains steadfast in its refusal to acknowledge fraudulent wrong doing and admit error.  Based on its interpretation of s 47E(d) of the FOI Act, the Tribunal assumes the evidence to support the claim of fraud will be filed in due course.

15. VFRG has declared in his written contention in relation to s 42D remittal that he would be willing to sign the Consent Order provided the Respondent and the Tribunal give explicit consent to allowing the referencing of the fraudulent s 47E(d) blanket claim made on all 91 documents.  Given the Tribunal’s lack of information regarding the entire application such an undertaking cannot be considered.

16. The Tribunal has considered the authorities cited by the Respondent and overall these clearly indicate that the decision with respect to a s 42D remittal for reconsideration by the Respondent is at the discretion of the Tribunal. It would appear to depend on the facts and interpretation of the law in each case. In the three taxation matters referred to, two were granted and one was refused. It certainly appears to this Tribunal Member that taxation matters are more suited to remittals for reconsideration, given their factual basis, than matters in other jurisdictions.

17. In Re Lavery and Registrar Supreme Court of Queensland and Ors (No 2) (1996) 23 AAR 52 Deputy President Forgie at 57-58 pointed out that:

    ... the framework of the AAT Act and the purpose of administrative merits review has led me to conclude that the power under section 42D should not be used simply because a decision maker has initially given a statement of reasons which was inadequate or which could be improved.

    This reasoning has been further applied by the Tribunal in matters such as Re NT98/41-48 and Commissioner of Taxation (1998) 39 ATR 1032.

18. This Tribunal notes that matters heard in the Administrative Appeals Tribunal’s jurisdiction are de novo hearings based on merit and that the Members stand in the shoes of the decision-maker with all the powers in relation to the decision-making processes of those invested in the original decision-maker.  There is no requirement that the reasons for decision in a de novo review reflect those of the primary decision-maker, provided both parties undertake the task within the confines of the original decision‑maker’s jurisdiction.

19. In N1112/00A v Minister for Immigration and Multicultural Affairs (2000) 32 AAR 76, Emmett J at 83 said:

    ... I do not consider that the effect of s 42D is to remove power or jurisdiction from the Tribunal to consider a matter. The purpose of s 42D is simply to confer a discretion on the Tribunal as to whether it will embark on such a review.

    TRIBUNAL’S DELIBERATIONS

20. The Tribunal appreciates the Respondent’s proposed s 42D remittal in that it could limit the contentious issues, save the Tribunal’s time and reduce the cost to parties and the Tribunal by avoiding a more extensive review process. The Tribunal, however, in the absence of more documentary evidence, Statements of Facts, Issues and Contentions and relevant legal opinions, exercises its discretion not to accept the proposal to remit under s 42D and denies the application.

21. The Tribunal is also influenced by the Applicant’s refusal, without quite unacceptable undertakings by the Respondent and the Tribunal, to agree to the Consent Orders and the nature of his complaint suggests that remittal may not advance the resolution of this application. 

22. The Tribunal sets aside the Directions of Conference Registrar Leaver dated 19 October 2016 and will separately provide new Directions to the parties. 

23.     I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the interlocutory decision herein of Miss E A Shanahan, Member

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

Associate

Dated   18 January 2017

Date of directions hearing	16 December 2016
Applicant	By Telephone
Advocate for the Respondent	Lex Holcombe
Solicitors for the Respondent	HWL Ebsworth Lawyers