White v NSW Department of Education and Training

[2009] NSWADT 153

CITATION:	White v NSW Department of Education and Training [2009] NSWADT 153
DIVISION:	General Division
PARTIES:	APPLICANT Christine Patricia White RESPONDENT NSW Department of Education and Training
FILE NUMBER:	083218
HEARING DATES:	13 January 2009
SUBMISSIONS CLOSED:	13 January 2009
DATE OF DECISION:	22 June 2009
BEFORE:	Montgomery S - Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264
REPRESENTATION:	APPLICANT In person RESPONDENT L Watson, solicitor
ORDERS:	The Application for review is dismissed.

Background

1 By an application dated 30 July 2007 the Applicant applied to the Department of Education and Training ("the DET") under the Freedom of Information Act 1989 ("the FOI Act”) seeking access to financial information relating to income received for Centenary pavers and Centenary Walkway at Hurlstone Agricultural High School (“the School”). She provided the following clarification for the request:

“I am requesting financial information relating to the purchase of pavers for the construction of the Centenary walkway at Hurlstone Agricultural High School. I purchased a paver for my 3 children … and paid $38.50 each. The school did not issue me with a receipt but I am sure you would find their name on the list of pavers purchased. The application form stated that this was for the cost of the paver and its laying. It was not advertised as a fund-raising exercise and I was not informed that this money would be used for another purpose. I am requesting information relating to the income and expenditure of the money collected for the Centenary walkway.”

2 Mr. Cribb, the DET's Acting Manager of the FOI Unit, wrote to the Applicant seeking further clarification but the application was not determined within the 21 day period allowed by the FOI Act. By virtue of section 24(2) of the FOI Act the DET was therefore deemed to have refused the request. The Applicant requested an internal review of that deemed refusal and she was subsequently provided with figures in response to her request. The figures were calculated by the school’s Principal (“the Principal”).

3 The Applicant was dissatisfied with the DET's determination and wrote to the Ombudsman for assistance.

4 Further communication ensued between the Applicant and the Ombudsman's office and between the Applicant and the DET’s Employee and Conduct Unit (EPAC). The Applicant was told that EPAC had collected information relating to the pavers and had supplied these to the DET. She was assured that she would be given additional information and the investigation on behalf of the Ombudsman's office was discontinued.

5 The Applicant questions the accuracy of the information that the DET provided to her. She has applied to the Tribunal for external review of the DET’s determination.

Relevant legislation

6 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government.

7 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.

8 Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that its determination was justified.

9 The Tribunal's powers on review are found in section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). Section 63 of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal may exercise all of the functions that are conferred or imposed on the DET.

The Respondent’s case

10 The DET filed and served an affidavit by Mr Cribb annexing documents related to the request and written submissions.

11 The DET contends that in response to the Applicant’s request, the FOI Manager wrote to the Principal requesting that the Principal provide a document that sets out the information sought. The Principal provided information to the FOI Manager in response to that request. The DET provided the information to the Applicant in the Internal Review determination.

12 The DET submits that this matter concerns the adequacy of searches undertaken by the DET in relation to the Applicant’s request. It submits that it made appropriate enquiries in relation to the information sought by the Applicant. It further submits that the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 is authority for the proposition that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to the FOI Act.

13 Accordingly, the DET submits that the Tribunal does not have jurisdiction to deal with this application.

The Applicant’s case

14 The Applicant relies on written submissions and a statement in reply to the material filed on behalf of the DET. She sets out the background to her application to the Tribunal and asserts that figures supplied to her in the internal review determination were not consistent with other information that she held regarding the number of pavers sold and the amount of money that she knew had been collected. She referred to minutes from Centenary Committee meetings to support that assertion.

15 She stated that she had raised her concerns with Mr. Cribb and asked him to confirm that the figures she had been given was not a mistake. She then raised the issue with the Ombudsman's office. At the suggestion of Mr Kosh of the Ombudsman's office she contacted Mr. Middleton, the Director of the DET’s Audit and Risk Management Unit who agreed to look into the matter. She stated that Mr. Middleton told her that he was sending officers to the School to look at the financial records in regard to another matter and that he would get them to also look at the records in regard to the pavers.

16 The Applicant stated that despite assurances given to her by Mr Kosh, she did not receive the further information about the pavers that she had sought from the DET.

17 The Applicant submits that the matter concerns a refusal by the DET to grant access to the documents requested. She says that it is not a matter concerning the adequacy of the search undertaken by the DET. She submits that the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, department of Commerce & Ors is not applicable in this matter.

Discussion

18 The task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it. In order to determine the correct and preferable decision, it is necessary to determine whether or not this matter concerns the adequacy of the search undertaken by the DET.

19 I have considered the material before me, and it is clear to me that the initial approach taken by the DET’s FOI officer was reasonable. He contacted the Principal who was the most senior officer at the School. It is reasonable to expect that the Principal would have had access to the financial information that the Applicant was seeking. However, for reasons that have not been explained, the material that the Principal provided to the DET’s FOI officer was either inaccurate or incomplete. That information was given to the Applicant.

20 I agree with the following summary of the relevant parts of the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, department of Commerce & Ors provided by Judicial Member Pearson in Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264:

“32 As noted by Beazley JA (at [75]), the matter was argued in the Court of Appeal as if the question was whether the Tribunal had jurisdiction to determine the sufficiency of search by an agency in respect of an application for access to documents. The answer provided by the Court of Appeal was as follows:
(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under section 24 of the Freedom of Information Act 1989;

(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of section 24;

(c) the jurisdiction of the Tribunal conferred by section 53 of the Freedom of Information Act 1989 does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to sections 17 and 18 of the Freedom of Information Act 1989.

33 Beazley JA held that a statement by an agency that a document does not exist, or that it does not have a document, cannot be construed as a refusal to give access to a document. Her Honour held (at [61]):
Section 25 complements section 24. Section 24 governs an agency’s responsibility and obligations under the FOI Act after it has received an application. The right to access is a statutorily conferred right and an agency’s obligations relating to granting access and the circumstances in which it may refuse access are also statutorily prescribed. Leaving aside the situation where an agency fails to determine an application within 21 days, giving rise to a deemed refusal: section 24(2); an agency is statutorily required to make a determination in relation to the application. There are, relevantly for present purposes, only two available determinations that may be made: to grant access or to refuse access. A determination to refuse access may be made on one or more of the bases specified in section 25. The section, properly construed, does not permit other circumstances to be taken into account.
34 Beazley JA set out the ambit of the review jurisdiction conferred by section 53 of the FOI Act in the following terms:
[68] ... Section 53 provides for the review of a determination. The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in section 53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a "determination within the meaning of section 24(1).
35 Beazley JA concluded (at [76]) that there is nothing in the FOI Act that confers jurisdiction on the Tribunal to conduct a review of, or enquiry into, the sufficiency of an agency's search for documents.

36 Basten JA held (at [108]):

... However, consistently with the scope and objects of the legislation and the expressed intention that the FOI Act shall be applied so as to further those objects and so as to facilitate and encourage the disclosure of information (section 5(3)), section 25 should be seen as an exclusive statement of grounds on which access may be refused.
37 Beazley and Basten JJA, with whom Giles JA agreed, noted that the failure of an agency to consider or adequately consider an application could be the subject of a complaint to the Ombudsman.

38 The limits on the Tribunal's jurisdiction, as determined by the Court of Appeal, apply regardless of when the applicant applied for review. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the terms of a request for access. That would still be the case where other documents are subsequently found, as in this matter where Constable Buckley was able to locate a note in his notebook that related to the applicant. Only the Ombudsman can investigate a complaint that an agency has not properly attempted to locate all relevant documents. The respondent has provided access to what it says are the only documents that fall within the scope of the applicant's request for access request. The applicant's contention that there must be more documents is not a determination reviewable under section 53.”

21 In my view, this is not a matter in which the DET refused to grant access to the documents requested. It is a matter in which the search undertaken by the DET to locate documents that fell within the scope of the Applicant’s request was inadequate.

22 In my view, the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, department of Commerce & Ors is applicable to this matter. As noted, there is nothing in the FOI Act that confers jurisdiction on the Tribunal to conduct a review of, or enquiry into, the sufficiency of an agency's search for documents. It follows that I have no jurisdiction to consider the matter further.

23 In the absence of jurisdiction, the appropriate course is to dismiss the application.

Decision

1. The Application for review is dismissed.