CITATION: Cianfrano v New South Wales Department of Premier and Cabinet [2008] NSWADT 174 DIVISION: General Division APPLICANT Robert Cianfrano PARTIES: RESPONDENT New South Wales Department of Premier and Cabinet FILE NUMBER: 073353 HEARING DATES: 28 May 2008 SUBMISSIONS CLOSED: 28 May 2008 DATE OF DECISION: 16 June 2008 BEFORE: Handley R - Deputy President CATCHWORDS: Access to documents - request for advanced deposit - jurisdiction MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information (Fees and Charges) Order 1989 Freedom of Information Act 1989 Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 CASES CITED: McGuirk v University of NSW [2007] NSWADTAP 64 McGuirk (GD) v University of NSW [2007] NSWADTAP 65 McGuirk v University of NSW [2007] NSWADT 258 APPLICANT C Saggers, agent REPRESENTATION: RESPONDENT G Shirm ORDERS: The Tribunal has no jurisdiction to review the Respondent's request for payment of an advance deposit by the Applicant. REASONS FOR DECISION 1 This matter involves an application by Robert Cianfrano for the review of a purported decision of the Department of Premier and Cabinet ('the Department') made under the Freedom of Information Act 1989 ('the FOI Act') to request the payment of an advance deposit. Background 2 By letter dated 11 July 2007 and received on 16 July 2007, Mr Cianfrano sought access to documents held by the Department. On 27 July 2007, the Department determined that it was necessary to retrieve archived documents for the purpose of determining the application and extended the time for making the determination by 14 days. 3 On 10 August 2007, the Department requested payment of an advance deposit by Mr Cianfrano and allowed him 14 days for payment. On 28 August 2007, not having received the payment, the Department allowed Mr Cianfrano a further 14 days to make the payment. Mr Cianfrano did not make the payment within that time and has not done so since. 4 On 14 September 2007, Mr Cianfrano applied for an internal review. On 28 September 2007, the Department determined to uphold the request for an advance deposit and allowed Mr Cianfrano a further 14 days to make the payment. 5 On 27 November 2007, Mr Cianfrano sought a review of this decision by the Tribunal. He stated that he received notification of the decision on 11 November 2007. At a Planning Meeting with the parties on 12 February 2008, I remitted the matter to the Department pursuant to section 65(1) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') for the Department to consider (1) the jurisdictional issues arising out of its letters to Mr Cianfrano dated 10 August 2007 and 28 September 2007 and specifically whether a determination was made to refuse to deal with the application, and (2) the issue raised by Mr Cianfrano as to the application of Government policy in this case in requesting payment of an advance deposit (under section 21(1) of the FOI Act) as opposed to imposing a charge (under section 28(2)(b)). 6 On 20 March 2008, the Department determined that although it had not previously refused to deal with Mr Cianfrano's application, it now determined to refuse to continue to deal with the application, determining in addition, that the amount of $240 was significant enough to warrant the request for an advance deposit. 7 At a further Planning Meeting with the parties on 25 March 2008, when discussion focused on the application of section 21(6) of the FOI Act and whether the Tribunal has jurisdiction to hear Mr Cianfrano's application, the Tribunal set a timetable for the exchange of submissions. A hearing on the preliminary issue of jurisdiction was held on 28 May 2008. The Department's Submissions 8 The Department states that at the time it made the purported internal review determination on 28 September 2007, the decision in Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 ('Hutchinson') and the NSW FOI Manual supported the view that there was power to conduct such a review. However, pursuant to the recent Appeal Panel decisions in McGuirk v University of NSW [2007] NSWADTAP 64 ('McGuirk 64') and McGuirk (GD) v University of NSW [2007] NSWADTAP 65 ('McGuirk 65'), "it now appears this internal review was without power". 9 The Department submits the Tribunal does not have jurisdiction to review the decision of 10 August 2007 because until the decision of 20 March 2008, which is not the subject of this appeal, the Department had not refused to deal with Mr Cianfrano's application under section 22(3) of the FOI Act. The Department submits that pursuant to McGuirk 65, at paragraph 15, a request for an advanced deposit is not a reviewable decision. It is only where there is a refusal to continue to deal with an application, that, pursuant to section 22(6), there is a right to internal review: McGuirk 64, at paragraph 11. 10 Ms Shirm, for the Department, submitted that there can be no 'deemed refusal' pursuant to section 24(2) because, under section 21(6), the period of time between the making of a request for an advance deposit and the payment of a deposit in accordance with the request, is not taken into account in calculating the period of 21 days within which an application must be dealt with. Time does not run until the advance deposit is paid or the agency refuses to deal with the application. 11 The Department referred to Judicial Member Higgins' comments in McGuirk v University of NSW [2007] NSWADT 258 ('McGuirk 258'), at paragraph 23, that once the period within which an advanced deposit is required to be paid has expired, and also the 21 day period from the receipt of the application, then the agency will be deemed to have made a determination pursuant to section 24(2). The Department submits that these comments, made before the Appeal Panel decisions in McGuirk 64 and McGuirk 65, were obiter and involved an erroneous construction of section 21(6). Such a construction would result in the unworkable situation where an applicant could subvert the agency's power to request an advance deposit by simply not paying the advanced deposit and then relying on the deemed refusal. 12 The Department submits that pursuant to the Appeal Panel decisions in McGuirk 64 and McGuirk 65, the internal review it conducted on 28 September 2007 was without power, there having been no refusal to continue to deal with the application. Further, the Tribunal has no jurisdiction under section 53(1), there having been no determination of Mr Cianfrano's FOI application in accordance with section 24. The Department having made a determination on 20 March 2008, it is open to Mr Cianfrano to exercise his right to seek an internal review. If he is not satisfied with the outcome of that review, the Department is open to treating the present application to the Tribunal as post-dating such an internal review. 13 In response to Mr Cianfrano's submissions, Ms Shirm submitted that the preliminary issue for the Tribunal to determine is one of jurisdiction and is not about the application of Government policy. If the Appeal Panel decisions apply, the issue is whether there has been a deemed refusal under section 24(2). Ms Shirm noted that section 22(3) permits an agency to refuse to continue dealing with an application if it has requested payment of an advance deposit and payment has not been received within the specified time. Section 24(3) provides that an agency is not required to determine an application that it has refused to continue to deal with under section 22. 14 With regard to the power to require an advance deposit, Ms Shirm submitted that the FOI Act should be interpreted consistently, and noted that in accordance with section 25(1)(a1), resource issues may be taken into consideration in deciding to refuse access to a document. Mr Cianfrano's submissions 15 Mr Saggers, for Mr Cianfrano, said that the crux of the matter is the application of Government policy in decisions made by administrators. Agencies are required to observe such policy. He noted that the Freedom of Information (Fees and Charges) Order 1989 refers to the FOI Procedure Manual and states that the expressions 'financial hardship' and 'public interest' "have the same meanings" as they have in the Manual. The Order makes clear that the Manual is to be used in conjunction with the FOI Act. In the same way that the Tribunal is generally required to give effect to Government policy (section 64 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act')), so too public servants are required to comply with such policy. 16 The NSW FOI Manual (August 2007) provides, at paragraph 6.4.1, that a request for an advance deposit "would need to be used only where the estimated cost of dealing with an application is significant". The previous FOI Procedure Manual (1989) provided, at paragraph 2.14.3, that "it is expected, however, that advance deposits will only be used with large scale requests involving significant charges". The context in which the request for an advance deposit is made should be considered, including that Mr Cianfrano does not have a record of not paying charges imposed under the FOI Act. He has no objection to paying reasonable charges, but he does object to being asked to pay an advance deposit in the particular circumstances of this case. 17 Mr Saggers submitted that the Department's request for an advance deposit was made for a purpose other than Government policy, namely for the purpose of thwarting the objects of the FOI Act. He referred to Cossins, Annotated Freedom of Information Act NSW (1997), at pages 156-157, where Cossins refers to a 1995 report by the NSW Ombudsman to the effect that the power to request an advance deposit can be used by agencies "as a means of escaping from processing sensitive and/or cumbersome applications". 18 Mr Saggers submitted that, contrary to the Department's determination of 20 March 2008 that the amount of $240 is "significant enough to warrant the request for an advance deposit" (Department's submissions, paragraph 6), $240 is not significant. Pursuant to section 61 of the FOI Act, the Department has the burden of establishing that its determination is justified. In this instance, the Department has failed to provide justification for requiring the payment of an advance deposit. 19 Mr Saggers submitted that the decision in McGuirk 258 deals with a different issue to that in the Appeal Panel decisions in McGuirk 64 and McGuirk 65, which is why the Appeal Panels did not address McGuirk 258. 20 More specifically with regard to jurisdiction, Mr Saggers said once an agency has requested payment of an advance deposit and allowed a specific time for payment in accordance with section 21, if payment is not received within that period the agency must exercise its power under section 22(3) to decide whether to continue dealing with the application. Failure to make such a determination should be treated as a deemed refusal under section 22(6). Otherwise, the agency could continually defer to deal with the application, with the result that the object of the FOI Act that applications should be dealt with as quickly and inexpensively as possible will be defeated. The legislation requires an agency to accept, defer or refuse an application. Deferrals are permitted for a set time and the legislation does not allow an application to be put on hold indefinitely. Discussion 21 The power to require payment of an advance deposit is set out in section 21 of the FOI Act, relevantly as follows: 21 (1) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advance deposit, as the agency may determine. (2) ... (3) ... (4) ... (5) The amount of an advance deposit requested by an agency in respect of an application shall be paid to the agency within such period of time as the agency may specify in the request. (6) The period of time between the making of a request under this section and the payment of an advance deposit in accordance with the request shall not be taken into account in calculating the period of 21 days within which the relevant application is required to be dealt with. 22 Section 22 sets out the agency's powers if an advance payment is not made, and the consequences of non-payment: 22 (3) An agency may refuse to continue dealing with an application if: (a) it has requested payment of an advance deposit in relation to the application, and (b) payment of the deposit has not been made within the period of time specified in the request. (4) If an agency refuses to continue dealing with an application under sub-section (3): (a) it shall refund to the applicant such part of the advance deposits paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application, and (b) it may retain the remainder of those deposits. (5) ... (6) A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly. 23 Section 24 addresses the determination of applications more generally: 24 (1) After considering an application for access to a document, an agency shall determine: (a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and (b) if access to the document is to be given-any charge payable in respect of the giving of access, and (c) any charge payable for dealing with the application. (2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates. (2A) ... (3) This section does not require an agency to determine an application that the agency has transferred to another agency under section 20 or has refused to continue to deal with under section 22. 24 The issue in this case is whether the Tribunal has jurisdiction to hear Mr Cianfrano's application for review of the Department's decision to request the payment of an advance deposit. 25 It is clear that the Department's letter to Mr Cianfrano dated 10 August 2007 was a request for an advance deposit. The letter requested payment within 14 days from the date of the letter and stated that the time within which the application was required to be determined would be suspended pending payment of the advance deposit (see section 21(1), (5) and (6)). On 28 August 2007, having not received payment of the advance deposit, the Department allowed Mr Cianfrano a further 14 days to make the payment. There appears to be no specific power permitting such an extension of time for payment, but I accept that such a power would seem incidental to section 21(5), albeit that the power should be used in accordance with the objects of the FOI Act and not for any improper purpose. 26 On 14 September 2007, Mr Cianfrano applied for an internal review. The Department treated this as an application for review of the decision dated 10 August 2007 to request payment of the advance deposit of $240, stating that, contrary to Mr Cianfrano's assertion, there had been no deemed refusal of his application, which, therefore, remained "on foot" because the time for dealing with the application had been suspended until such time as he paid the advance deposit. The Department upheld the decision to request an advance deposit and the amount of the advance deposit requested. 27 In his application to the Tribunal filed on 27 November 2007, Mr Cianfrano sought a review of the decision dated 28 September 2007. I note that this purported decision pre-dated the Appeal Panel decisions in McGuirk 64 (7 November 2007) and McGuirk 65 (9 November 2007). In McGuirk 64, at paragraph 11, the Appeal Panel held: "Only one kind of decision made in the acceptance phase is subject to internal review, that is a decision to refuse to continue to deal with an application following the non-payment of an advanced deposit within a specified time: s 22(6)." At paragraph 10, the Panel had described 'the acceptance phase' as the period prior to the agency determining whether access to the documents sought should be given under section 24. 28 In McGuirk 65, at paragraph 15, the Appeal Panel said the Tribunal has jurisdiction to review a decision made under the FOI Act where the Act so provides: "The FOI Act identifies a decision to refuse to continue to deal with an application following non-payment of an advance deposit within a specified time as a decision which is subject to external review: s 22(6). A decision to request the payment of a deposit is not identified in s 22(6), or anywhere else in the FOI Act, as a reviewable decision." 29 The Panel noted, at paragraph 17, contrary to the decision in Hutchinson: "An applicant is not entitled to internal or external review of the reasonableness of the request for an advance deposit until it becomes part of a 'charge' levied under s 24." 30 In the current matter, Mr Saggers submitted that the Department had failed to provide justification for requesting the payment of an advance deposit, contending that the request was contrary to Government policy. In McGuirk 65, at paragraph 17, the Appeal Panel said that an applicant is not entitled to a review of the reasonableness of the request for an advanced deposit until it becomes part of the charge levied under section 24(1)(b) or (c), subsequent to a decision being made to grant or refuse access to a document. Presumably, the Appeal Panel might have added that the entitlement to such a review would also follow a determination under section 22(3) and a review being sought pursuant to section 22(6). In any event, it is clear that a request for an advanced deposit is not a reviewable decision and thus the Tribunal has no jurisdiction in this regard. 31 The Appeal Panel decisions did not address the issue of whether there can be a deemed refusal to continue to deal with an application by reason of the non-payment of an advanced deposit, which was the subject of submissions by the parties in this matter. The other decision referred to by the parties was that in McGuirk 258, where Judicial Member Higgins said: "23. In my opinion, on the proper construction of s 21 of the FOI Act , a decision by an agency to request an advance deposit is not a 'determination' for the purposes of s 24 of that Act. It is merely a decision to make a request for a deposit and having made that request, one of the following situations will arise: (a) the agency will do nothing more – in which case the 21 day period within which the agency is required to make a 'determination' under s 24(2) will re-commence on the expiry of the period within which the requested deposit was to be paid and once that 21 day period has expired the agency will be deemed to have decided (determined) to refuse the FOI applicant access to the documents requested; or (b) the agency will make a decision (determination) under s 22 of the FOI Act to refuse to continue to deal with the FOI applicant's FOI request as he/she has failed to pay the requested deposit. 24. In either situation, the FOI applicant will then have a right to seek an internal review under s 34 of the FOI Act and where that right is exercised and the FOI applicant remains dissatisfied with that decision (determination) then he/she has a right to seek external review to the Tribunal or the Ombudsman." 32 Ms Shirm submitted that these comments, made before the Appeal Panel decisions referred to above, were obiter and involved an erroneous construction of section 21(6). Mr Saggers noted that the decision in McGuirk 258 deals with a different issue. In my view, while the Judicial Member's comments are obiter, they represent a common sense interpretation of these provisions of the FOI Act. If an agency were able to repeatedly extend the time for payment of the advanced deposit, notwithstanding that the applicant has given no indication of preparedness to pay, it would effectively deprive an applicant of any review rights. This does not appear to have been the intention of the legislation given the context of the FOI Act, in which internal and external review rights are generally available to an applicant who is dissatisfied with the decision of an agency. 33 Thus, in my view, in the absence of an extension of the period within which an advance deposit is required to be paid under section 21(5) being granted for good reason in accordance with the objects of the FOI Act, and not for an improper purpose, if an applicant fails to pay an advance deposit within the specified period, at the end of that period, the suspension of the 21 day period pursuant to section 21(6) will expire and the running of the 21 day period will resume. Then if the agency does not make a decision to refuse to continue dealing with an application under section 22(3), at the end of the 21 day period, if no decision to determine the application has been made, section 24(2) will deem the application to have been refused, thereby giving rise to the review rights set out in Parts 3 and 5 of the FOI Act. 34 Mr Saggers submitted that an agency's failure to make a determination under section 22(3) to decide whether to continue dealing with an application where an advance deposit has been requested but not paid within the period of time specified, should be treated as a deemed refusal under section 22(6), thereby giving rise to rights of review. In my view, I should follow the construction propounded by the Appeal Panel in McGuirk 64, at paragraph 11, that in the acceptance phase, only a decision under section 23(3) to refuse to continue dealing with an application following the non-payment of an advanced deposit within a specified time is subject to internal review pursuant to section 22(6). There is no specific deeming provision applicable to section 22. 35 In the present case, the events are muddied by a purported internal review decision made without power, and an application to the Tribunal for review of that decision. I note that on 20 March 2008, nearly four months after the filing of Mr Cianfrano's application in these proceedings, the Department made a determination under section 22(3) to refuse to continue dealing with his application. It is now open to Mr Cianfrano to seek an internal review of that decision, and if he is not satisfied with the outcome of that review, the Department has stated it is prepared to treat the present Tribunal application as post-dating that internal review. In the light of this, after publication of this decision, it is appropriate to arrange a Planning Meeting with the parties to discuss whether Mr Cianfrano wishes to pursue this course. Orders The Tribunal has no jurisdiction to review the Respondent's request for payment of an advance deposit by the Applicant. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.