Cianfrano v New South Wales Premier's Department [2008] NSWADT 102

CITATION: Cianfrano v New South Wales Premier's Department [2008] NSWADT 102

DIVISION: General Division

APPLICANT Robert Cianfrano PARTIES: RESPONDENT Premier's Department of New South Wales

FILE NUMBER: 073014

HEARING DATES: 5 December 2007

SUBMISSIONS CLOSED: 5 December 2007

DATE OF DECISION: 4 April 2008

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Access to documents - adequacy of search

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1989

B v Commissioner NSW Police Service [2000] NSWADT 168 CASES CITED: Cianfrano v Director General, Department of Commerce [2006] NSWADT 195 Hemeon v Commissioner NSW Police Service [2002] NSWADT 201

APPLICANT No appearance REPRESENTATION: RESPONDENT J Brown, solicitor

1. The respondent's decision is affirmed ORDERS: 2. The application is dismissed 3. No orders are made pursuant to section 58 of the Act.

REASONS FOR DECISION 1 These proceedings were brought by the applicant pursuant to the provisions of the Freedom of Information Act 1989 seeking to review a decision of the respondent made under that Act relating to access to documents being sought by the applicant. There are no claims that any of the documents maintained by the respondent are exempt under the Act, the respondent having decided to grant access to all documents that fell within the original application. 2 However, the applicant has raised two issues for the Tribunal's determination: namely sufficiency of the respondent's searches for documents falling within the scope of the applicant's original application and whether section 58 of the Act has been engaged. At an early point the respondent raised a jurisdictional issue, but after proper consideration has not pressed this argument further. Therefore only the two issues raised by the applicant require consideration. 3 The proceedings were listed for hearing on 5 December 2007. Ms Brown appeared for the respondent but there was no appearance for the applicant. With Ms Brown's assistance at the hearing the relevant evidence and submissions were identified, the two issues having been determined at an earlier stage in the proceedings. The relevant materials are contained in exhibits AA1, AA2, RR1, RR2 and RR3. 4 By letter dated 31 October 2006 the applicant sought access to documents held by the respondent. He described these documents as being those which contain instructions to other government departments and agencies requiring them to report all "FOI applications (which may be made to them) to the Premier's Department"; or which set forth the information that was to be so reported; or which named the person to whom such report was to be made or the person reviewing, tracking or collating such reports. The precise terms of the request are set forth in annexure A to exhibit RR1. 5 The respondent located four categories of documents, all of which were released to the applicant. The applicant then sought internal review by letter dated 19 December 2006, which repeated the terms of the original request. The respondent interpreted this internal review application as being a submission that initial searches for documents had been inadequate. The respondent determined that the original searches had been thorough and advised the applicant accordingly and provided him with a detailed exposition of the searches that were conducted. The relevant correspondence is contained in exhibit RR1. The applicant then commenced proceedings in the Tribunal. 6 In determining whether a sufficient search has been carried out the Tribunal must determine whether the respondent's determination, that it has identified all the relevant documents held by the agency which are sought by the applicant, is a sound one (B v Commissioner of Police NSW Police Service [2000] NSWADT 168). The Tribunal must determine whether there are reasonable grounds to believe that the requested documents exist, being documents held by the agency, and, if so, whether the searches conducted by the respondent have been reasonable in the circumstances of the case a hand (Hemeon v Commissioner of Police [2002] NSWADT 201). In general terms the starting point is to consider whether there is some credible evidence before the Tribunal, which could suggest that, the respondent's searches have not been adequate. Ultimately the Tribunal must determine whether the respondent's decision in point has been a fully responsive determination of the applicant's request for access (Cianfrano v Director General, Department of Commerce [2006] NSWADT 195). 7 The applicant's initial request is worded a little loosely, but in essence he sought access to documents which gave instructions to other departmental officers and agencies to report all FOI applications to the respondent, or which identified the information to be so reported or named officers who would collate, review and track such reports. Whilst the scope of this request was not limited to instructions actually issued by the respondent, it is implicit in the request that the respondent was only required to search for any documents within the scope of the request that were documents actually held by the respondent. 8 The evidence as to the searches conducted by the respondent is set forth in exhibits RR1 and RR3. The correspondence in RR1 informs the applicant of the searches that were conducted, particularly the decision on internal review dated 22 January 2007. According to this evidence the respondent conducted a search of its electronic records and perused paper files that had been identified by reason of this search. It also notes that the Acting Manager, FOI, holds all FOI related material so that it was not necessary to make enquiry with other divisions in the respondent's organisation. The initial search identified all files containing "FOI"; this produced over 1000 files over the last 15 years. From these files the respondent's officers then selected files which concerned agencies and files, which involved reports, made to the respondent. The documents in these files were then searched to determine which of them, if any, contained information concerning instructions given to government departments, agencies or FOI officers to report any FOI application to the respondent. The documents so found which fell within the request were released to the applicant. A similar search was conducted in the Central Corporate Services Unit to ascertain whether any Circulars had been issued containing this type of instruction to other departments, agencies and FOI officers. No relevant documents were found by this latter search. 9 Exhibit RR3 is a statement by Rachel McCallum, a senior officer in the respondent's employ. Ms McCallum holds the position of Acting FOI Manager. She was not engaged in any of the relevant searches, however she did peruse the file relating to the applicant's request and investigated the extent of the searches that has been made. Basically Ms. McCallum's evidence is that she found nothing in that file to contradict the assertions in the internal review determination as to what searches had been made. She also found file notes made by other officers, which are summarised in her statement, supporting a finding that such searches had in fact been made. 10 After the applicant commenced proceedings in the Tribunal there were communications between the parties (see annexures F and G, exhibit RR1) suggesting that certain amended templates existed that had not been disclosed to the applicant, thereby permitting an inference to be drawn that certain documents had been missed or omitted on the searches. The respondent then searched for any such templates and advised the applicant that none had been found. Given that the applicant has searched for these amended templates, and found none, this evidence does not permit any inference to be properly drawn that such documents have not been the subject of search. 11 The applicant's submissions as to sufficiency of search are difficult to read (exhibit AA1) and the factual circumstances relied upon are not clearly stated. On page 5 the applicant submits that his original application was read incorrectly and on page 2 he states that "the whom has not been provided in the FOI". Consequently, it appears that this encompasses the essential ground and argument upon which he relies. 12 However, there are in fact two aspects of the search process that require consideration. The first is the use of the letters "FOI" in the electronic search rather than using the full name of the Act and omitting to include any reference to "instructions" and "reports" in relation thereto. On reflection though this would not be a matter of concern. The letters "FOI" are in widespread use and the search that was employed did in fact identify documents that fell within the scope of the applicant's initial request. Therefore there is no basis here for finding that the search has been restricted in any way by the use of the letters "FOI". 13 Secondly, considering the applicant's essential argument contained in his submissions noted above, the respondent's decision on internal review dated 22 January 2007 (annexure E exhibit RR1) states on page 3 "The documents identified for this FOI request are the only documents held by the Department that contain, refer to or explain an instruction from the government to other departments or agencies (to report FOI applications)". This could be read as suggesting that the search was limited to documents, which gave the type of instruction, referred to. This is also suggested by the reference on page 2 of the decision on internal review that "The search through these files was for all documents concerning instructions to government departments, agencies and FOI officers to report FOI applications to the Department". It is also supported by the statements in the respondent's initial decision to grant access dated 15 December 2006 (annexure B exhibit RR1) advising the position of the person who tracked and reviewed reports, which suggests that the respondent's officers did not treat the name of this person or his or her position) as falling within the request: they appeared to treat this as a separate request for information. As noted above the applicant's initial request, on a broad reading, sought documents containing instructions to report FOI applications, but it also sought documents concerning the person who reviewed, tracked or collated reported FOI applications. The question then is whether the searches were limited in this way so that documents, which concerned persons who reviewed, tracked or collated reports simpliciter were excluded from consideration. To determine this question in the applicant's favour it would be necessary for there to be material before the Tribunal that persuades it to draw the inference, as a matter of fact, that the respondent's searches did not involve searching for documents that did no more than identify the person who collated, reviewed and tracked the type of reports that were within the original request. 14 The Tribunal is not satisfied on the evidence that the respondent's searches were limited in this way. Both the initial decision and the decision on internal review extract the terms of the original application in full, but this of course may simply be standard procedure. The fact that the respondent's initial decision provides the position of the officer who received the relevant reports shows that this aspect of the applicant's request was not simply forgotten, but it does no more than this. It does not show that the respondent necessarily included this aspect in its searches for documents, for the reasons given above. However, what is more important is that the documents which were in fact identified and released to the applicant were much wider in scope than just documents giving instructions to report all FOI applications (see the annexure to annexure B in exhibit RR1 setting out the various types of documents to which access was granted). This suggests that a somewhat wider search was conducted. On the limited evidence before the Tribunal it is not possible to reach a finding that, more likely than not, the respondent did limit its selection of relevant documents to those which gave instructions to others to report FOI applications. The evidence does not persuade the Tribunal that this is the correct inference to draw. Therefore this aspect does not provide a basis for questioning the adequacy of the respondent's searches. If it were possible to reach a finding that the respondent did limit its search in this way, then the searches would be inadequate. However, on the evidence, the Tribunal is not persuaded that such a finding should be made, the evidence being such that any such finding would be speculative rather than being derived by sound inference on the evidence. If the applicant had attended the hearing it would have been possible to explore this question further during the course of addresses and argument, but this was not the case. 15 The applicant's written submissions show that this aspect was in fact his main concern (see exhibit AA1 page 2). However, for the reasons given this submission fails. 16 Turning now to the question whether section 58 of the Freedom of Information Act 1989 has application. The applicant submits that the raising of the earlier jurisdictional issue by the respondent, which eventually was not pursued, amounted to conduct which should be reported pursuant to section 58 of the Act. His written submissions (exhibit AA2) draw upon the learning associated with the concept of "special circumstances" in section 88 of the Administrative Decisions Tribunal Act 1997 and submit that raising this issue was simply a ploy adopted by the respondent when all else fails. In the circumstances of this case the Tribunal does not accept this submission essentially for the reasons set forth in the respondent's written submissions (exhibit RR2). The respondent raised the issue in a timely fashion and promptly withdrew it when it appeared to be no longer tenable. Such conduct was in fact appropriate: the Tribunal will often rely upon a respondent in these types of proceedings to raise any jurisdictional issues and once it appears to a respondent that such an issue may exist it should be promptly raised in the proceedings. The respondent did this. Of course, should it later appear that there is no such issue then it should not be pressed, which the respondent clearly acknowledged. This in fact occurred after the respondent gave effect to enquiries suggested by the Tribunal. Consequently, the Tribunal is not satisfied that the respondent engaged in any conduct falling within section 58. On these materials the Tribunal is not persuaded that it should find that the jurisdictional issue was simply raised as a ploy. A finding that an officer failed to exercise in good faith a function conferred or imposed by the Act is not open on the evidence before the Tribunal and therefore no orders under this section may be made by the Tribunal. 17 For these reasons the respondent's decision is affirmed and the application is dismissed. The Tribunal declines to make any orders pursuant to the powers conferred by section 58 of the Act.