WorkCover NSW v Steadfast Group Pty Ltd (GD)

[2010] NSWADTAP 24

Appeal Panel - Internal

CITATION:	WorkCover NSW v Steadfast Group Pty Ltd (GD) [2010] NSWADTAP 24
PARTIES:	APPELLANT WorkCover NSW RESPONDENT Steadfast Group Pty Ltd
FILE NUMBER:	109010
HEARING DATES:	1 April 2010
SUBMISSIONS CLOSED:	1 April 2010
DATE OF DECISION:	13 April 2010
BEFORE:	O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Blake C - Non-Judicial Member
CATCHWORDS:	Freedom of Information – Interlocutory Appeal by Agency – Tribunal Direction to Agency – Whether consistent with Scope of Original Request and Matters that Remain in Dispute – Leave refused
DECISION UNDER APPEAL:	Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23
FILE NUMBER UNDER APPEAL:	093006
DATE OF DECISION UNDER APPEAL:	01/27/2010
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Workers Compensation Act 1987
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23
REPRESENTATION:	APPELLANT I Pike of counsel / T Quinn, WorkCover NSW RESPONDENT M Allars and A Stafford of counsel / Yeldham Price O'Brien Lusk
ORDERS:	1. Leave to appeal refused. 2. Order staying the Tribunal’s direction vacated. 3. Tribunal or Registrar to fix next planning meeting date, and that date to be substituted as the new date for compliance with the Tribunal’s direction.

1 The appellant agency, WorkCover, is presently the respondent to an application for review before the General Division of the Tribunal. The applicant for review is the respondent to this appeal, Steadfast Group Pty Ltd (Steadfast).

2 Steadfast filed its review application on 9 January 2009. It was not satisfied with WorkCover’s determination of an application for access to documents made under the Freedom of Information Act 1989.

3 At planning meetings Steadfast raised the issue of whether WorkCover had properly interpreted its FOI application, and whether the documentation before the Tribunal was adequate.

4 The Tribunal ruled in a written decision issued on 27 January 2010 (Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23) as follows:

‘37 … [That] before the planning meeting on 5 February 2010 WorkCover file and serve a new schedule of documents falling within the scope of the request as identified in these reasons: with respect to each document the schedule shall indicate its date, author, the exemption claimed, and whether exemption is claimed in whole or in part.’

5 WorkCover immediately appealed this decision. An appeal against an interlocutory decision of the Tribunal requires the leave of the Appeal Panel to proceed: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2A). The appeal proper may be made as of right on a question of law, and by leave of the Appeal Panel may extend to the merits: ADT Act, s 113. In accordance with Tribunal practice, WorkCover’s application for leave to appeal the interlocutory decision is accompanied by the proposed notice of appeal. The notice of appeal sets out questions of law and seeks leave to extend the appeal to the merits.

6 At a directions hearing held 19 February 2010 the Appeal Panel, constituted for this purpose by the President sitting alone (ADT Act, s 113(2B)), granted WorkCover’s unopposed application under s 116 to stay the decision pending the outcome of the appeal. The President did not proceed to deal with the application for leave to appeal but instead, with the agreement of the parties, gave directions for full submissions to be filed, and for a hearing on all issues to proceed on 1 April 2010.

7 On its face the Tribunal’s ruling was of a type commonly made in the case management of FOI review applications. WorkCover has indicated that it regards the ruling as onerous in that it will be required to expend significant time, effort and resources in complying with the Tribunal’s direction, founded, in its view, on a misconstruction of the scope of Steadfast’s FOI request.

8 Steadfast opposes the grant of leave to appeal the interlocutory decision, and, if that submission is not accepted, disputes whether any question of law is raised by the notice of appeal, and opposes leave to extend the appeal to the merits.

9 The Access Application: Steadfast made the subject request by application dated 5 September 2008:

‘Under the Freedom of Information Act 1989 we request on behalf of our client, Steadfast Group Limited, access to information held by the workers compensation Nominal Insurer established under the Workers Compensation Act 1987 (Nominal Insurer) in relation to comparative performance data regarding the performance of all Scheme Agents within the NSW Workers Compensation Scheme from 1 January 2004 to date. Please note that we have made a similar request for documents held by WorkCover. We are making this request because it may be that some documents do not fall within the original request.

In particular, we request access to documents that fall within the following categories:

1 Statistics relating to each Agent’s return to work outcomes, including but not limited to, the Agent’s comparative performance in relation to the preparation and average duration of claims as measured by the Nominal Insurer in performance outcomes and service standards under the Agents’ contracts broken down by reference to the category of size of employer;

2 Statistics relating to each Agent’s tail claim liability reduction performance, including but not limited to the Agent’s comparative tail claim liability reduction performance as measured by the Nominal Insurer in performance outcomes and service standards under the Agent’s contract;

3 Statistics relating to each Agent’s loss ratio performance, including but not limited to the Agent’s comparative incurred costs as measured by the Nominal Insurer in performance outcomes and service standards under the Agent’s contract;

4 Statistics relating to the measurement of each Agent’s claim duration performance, including but not limited to, comparative statistics measuring the period between the Agent’s lodging a claim and its resolution, as measured by the Nominal Insurer in performance outcomes and service standards under the Agents’ contracts;

5 Statistics relating to each Agent’s comparative contribution to scheme savings, as normalised according to the Agent’s share of liabilities managed, as measured by the Nominal Insurer in performance outcomes and service standards under the Agents’ contracts.’

10 Steadfast explained at hearing that it seeks to assist insurance brokers in their work. It sees value in having the information to which its request relates being made publicly available, via FOI, to assist brokers in the advice they might give and the decisions they might take in placing workers compensation insurance with one or other of the Scheme Agents.

11 The reasons of the Tribunal below explain in fuller detail the insurance element of the NSW workers compensation scheme. Basically the Nominal Insurer is a statutory entity administered by WorkCover, with various insurance companies being Scheme Agents for the placement of cover.

12 WorkCover had submitted that the request should be understood as confined to the five items, 1 to 5 (the Specific Items) and that the words of the first paragraph of the request (the General Paragraph) did not refer to any matter beyond those in Specific Items 1 to 5. WorkCover had also questioned whether it had any remaining obligation in respect of Specific Items 3, 4 and 5 as it had responded that it had no documents responsive to those items.

13 The Tribunal’s Reasons: We have set out the final order above at para [4]. The scope of the request was identified in paras [23-24] and [30]. The ‘opening paragraph’ to which para [23] refers is what we have called the General Paragraph. The Tribunal said:

‘23 The first paragraph of the request sought “ information … in relation to comparative performance data regarding the performance of all Scheme Agents within the NSW Workers Compensation Scheme from 1 January 2004 to date.”(My emphasis.) The information sought was not limited to comparative performance data alone, but was information “in relation to” that data. The request therefore sought information about such data, as well as the data or statistics themselves. On an ordinary reading of the request it extends to include documents, reports, discussion papers and other information in relation to or about that data, including analysis and evaluation of that data. On a simple reading, it also extends to cover information relating to comparative performance data regarding the performance of scheme agents with respect to the average days workers spend on compensation. This is a well known measure of the workers compensation scheme’s operations: the government for a number of years now has had a close and public focus on improving return to work outcomes.

24 I am satisfied that each of the four types of information set out in paragraph 22 of WorkCover’s submissions fell within the scope of Steadfast’s original request.

30 I am satisfied that the request extends to documents which WorkCover is taken to hold under s 23 that fall within the scope of the first and second paragraphs of the request.’

14 WorkCover in [para 22] of its submissions to the Tribunal had given a summary description of the kind of documents to which, in its submission, the application did not go. It is to these summary descriptions that the Tribunal alludes at para [24] of the above extract, i.e.

(i) any other information held by the Nominal Insurer in relation to the comparative performance data regarding the performance of all Scheme Agents

(ii) information and documents other than statistical representations of comparative performance data, such as surrounding documentation and interpretation and analysis of comparative performance data

(iii) any documentation about the performance of Scheme Agents in the period stated, and this may consist in any interpretation and analysis of the comparative performance data, such as for example, any internal reports or notes of discussion

(iv) data relating to average days on workers compensation.

15 The Tribunal referred at para [30] of its reasons to s 23 of the FOI Act. Section 23 provides:

‘ 23 Information stored in computer systems etc

If:

(a) it appears to an agency that an application relates to information of a kind that is not contained in a written document held by the agency, and

(b) the agency could create a written document containing information of that kind by the use of equipment that is usually available to it for retrieving or collating stored information,

the agency shall deal with the application as if it were an application for a written document so created and shall be taken to hold such a document.’

16 The Appeal: WorkCover raised the following issues in its notice of appeal and its submissions:

(i) whether the Tribunal had any jurisdiction to authorise steps on its part which required it to engage in a further search for documents;

(ii) whether the Tribunal had erred in its interpretation of the scope of the application;

(iii) whether it is required to manipulate data in its possession to produce data responsive to any of the terms of the application.

17 Steadfast’s response, in brief, was:

(i) it accepts that on the authority of the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140, the Tribunal does not have jurisdiction to require an agency to engage in a further search, but submits that the Tribunal has not, in any way, sought to do that

(ii) the question of the proper construction of the application is one of fact, and ought not be permitted to be reopened

(iii) the proper interpretation of s 23 is not an issue in dispute in these proceedings.

18 As to the last matter, Steadfast’s position is this. Section 23 addresses the situation where an access application (or request) properly construed covers documents held in electronic form as distinct from written form. If the agency has such a document it must use its usual equipment to recover and produce that document in answer to the request.

19 Steadfast does not put the view that any wider action is required by an agency. In particular, it does not put the view that an agency is required to use special search techniques or manipulate its data to produce a document it would not otherwise have required for its administrative purposes. Insofar as the Tribunal in its reasons might be thought to be suggesting that an agency is obliged to undertake such a process in response to an FOI request, it does not adopt that view.

20 In light of these indications as to its position, the Appeal Panel asked Steadfast if it should be understood to be requiring any further action by WorkCover in connection with Specific Items 3, 4 and 5. It said it did not. It accepted as given in good faith WorkCover’s response to that part of its application to the effect that it did not hold any documents either in paper or electronic form that provided the data sought. It noted further that its acceptance of WorkCover’s response in that regard should not be understood as carrying with it any indication that it saw it as unnecessary for an agency to engage in a reasonable search of its computer system before expressing such a decision. We agree with the latter submission. Clearly an agency is obliged to undertake a reasonable search of both its paper and electronic databases when processing a request. While the Tribunal can not itself enforce the obligation, it is a matter of administration that may be the subject of complaint to the Ombudsman.

21 Further, as we understand it, WorkCover does not dispute the interpretation given to Specific Items 1 and 2 of the request. In WorkCover’s view, it was only called upon to respond to Specific Items 1 and 2. It has done that. It has claimed exemption for affected documents, and they have been supplied confidentially in a sealed envelope to the Tribunal.

22 The Core Dispute: The only matter in dispute, therefore, is whether the Tribunal misconstrued the General Paragraph. Steadfast agrees with the broader construction of the application adopted by the Tribunal.

23 Steadfast submits, in any case, that this is not a proper matter for appeal. In its submission the Tribunal was involved in making a decision on a question of fact when construing the scope of an access application.

24 We agree with Steadfast’s submission. It was open to the Tribunal to conclude that the General Paragraph involved a general request for ‘comparative performance data regarding the performance of all Scheme Agents’, and, without derogating from its breadth, included within its scope the information set out in the Specific Items. Another way of putting this is to see the request as having a series of Specific Items followed by a catch-all item ‘any other comparative performance data’.

25 It is possible, depending on – the circumstances, the language used and any discussions or negotiations that occurred between the parties, that the Tribunal might decide that an opening or general paragraph did not bear on the scope of request and was merely introductory. Interpretations of this kind are quintessential instances of fact-finding.

26 There is nothing as we see it about the Tribunal’s approach in this case to suggest that it committed any error of law in the way it went about its fact-finding task. This is not an instance for example where there was no evidence or no probative evidence for its finding of fact.

27 WorkCover’s first ground under the heading ‘question of law’ in the notice of appeal impliedly recognised, we think, the weakness of its position in identifying the question of law going to this issue, when it simply asserted the Tribunal ‘was wrong’.

Further Observations

28 In the interests of achieving progress in this dispute, we will make some observations which, hopefully, will clarify the decision of the Tribunal below.

29 The direction given in para [37] of the Tribunal’s reasons is to be interpreted as applicable to the General Paragraph and Specific Items 1 and 2. The words ‘comparative performance data’ in the General Paragraph could cover documents of the kind referred to in WorkCover’s submissions to the Tribunal at para 22 of those submissions. Those items may not exhaust the meaning of ‘comparative performance data’.

30 Steadfast made submissions to the effect that WorkCover had failed to comply with directions even on the basis of its narrower interpretation of the request. It said, for example, that in relation to Specific Items 1 and 2 that Steadfast had not furnished it with a fully completed Schedule of Documents. It said that the Schedule, so far supplied, was deficient in that it did not include a short description of the document for which exempt status was claimed, the date of the document or specify the exemption relied upon. Unless there are compelling reasons for non-disclosure of particulars of this kind, the ordinary practice is for them to be given, to assist the access applicant in responding to the case made by the agency.

Order

1. Leave to appeal refused.

2. Order staying the Tribunal’s direction vacated.

3. Tribunal or Registrar to fix next planning meeting date, and that date to be substituted as the new date for compliance with the Tribunal’s direction.