McGuirk v Attorney General of New South Wales [2007] NSWADT 280

CITATION: McGuirk v Attorney General of New South Wales [2007] NSWADT 280

DIVISION: General Division

APPLICANT Gerard Michael McGuirk PARTIES: RESPONDENT Attorney General of New South Wales

FILE NUMBER: 063439

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 2 July 2007

DATE OF DECISION: 30 November 2007

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Freedom of Information Act - access to documents - document that is not held by the Minister

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Protected Disclosures Act 1994

CASES CITED: Cianfrano v Director General, Department of Commerce [2006] NSWADT 195

APPLICANT In person REPRESENTATION: RESPONDENT J McDonnell, solicitor

ORDERS: The decision of the Minister is affirmed.

REASONS FOR DECISION Introduction 1 Mr McGuirk seeks review of a decision of a delegate of the Attorney General ('the Minister') in regard to his application for access to documents pursuant to section 17 of the Freedom of Information Act 1989 ('the FOI Act'). In his FOI application Mr McGuirk sought access to three specified documents. 2 Each document was described as being a submission to the Minister seeking his approval for the Crown Solicitor to represent officers of the University of New South Wales who had been charged with offences under the Protected Disclosures Act 1994. The submissions were dated 21 and 27 April 2004 and 1 February 2005. 3 In his decision, the Minister found that he did not hold the documents for which Mr McGuirk had sought access and he notified Mr McGuirk of this fact on 5 December 2006, pursuant to section 28(1)(b) of the FOI Act. Issues 4 Mr McGuirk asserted that the Minister had failed to meet his obligations under the provisions of the FOI Act in that the documents held by the Minister included not only those held in the Minister's office, but also those that the Minister had an immediate right of access to. This argument centred on the proper construction of the meaning of the term 'document held by the Minister' in section 6(2)(f) of the FOI Act. Mr McDonnell, for the Minister, argued that in construing this term regard had to had to the meaning of a "Minister's documents" as defined in section 6(1) of the FOI Act. He went to argue that in this application the documents for which Mr McGuirk had sought access were not "Minister's documents". 5 In the alternative, Mr McGuirk argued that the Minister was required, pursuant to section 20 of the FOI Act, to transfer his FOI application to the agency, which did hold the documents he had requested. Mr McDonnell argued that section 20 did not provide for mandatory transfer. 6 Each of the abovementioned issues are dealt with below. Were the documents for which access was sought "Minister's documents"? 7 The FOI Act makes a distinction between "Minister's documents" and an "agency's document". A right of access is provided to both categories of document under Part 3 of the FOI Act. However, they are dealt with under different Divisions of that Part. Access to an "agency's document" is dealt with under Division 1 and access to a "Minister's document" is dealt with in Division 4. However, section 38 in Division 4 provides that the provisions in Division 1 in regard to how applications are to be dealt with (sections 19 to 23), the determination of applications (section 24), the grounds on which access can be refused or deferred (section 25), forms of access (section 27) and form of notice of determination (section 28) also apply to applications for a "Minister's document". 8 An "agency's document" is defined in section 6(1) of the FOI Act to mean: agency's document means a document that is held by the agency . (italics added) 9 A "Minister's document" is defined in section 6(1) of the FOI Act to mean the following: Minister's documents means a document: (a) that is held by a Minister, and (b) that relates to the affairs of an agency, but does not include an agency's document. 10 Sections 6(2)(e) and (f) of the FOI Act set out what is meant by a document that is held by an agency and that which is held by a Minister as follows: 6(2) In this Act: … (e) a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency, and (f) a reference to a document held by a Minister includes a reference to a document to which that Minister has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as a member of that Minister's staff. 11 In my opinion, on the proper construction of the meaning of a "Minister's document" and that of an "agency's document", the two categories of document are mutually exclusive. That is, even where a Minister holds a document that relates to the affairs of an agency, it will not be a "Minister's document" if it is also an "agency's document" that is held by the agency. The extended meaning of 'a document held by a Minister' in section 6(2)(f) of the FOI Act must therefore be construed consistently with the more narrow meaning of a "Minister's document". 12 In my opinion such a construction is also consistent with the objectives of the FOI Act as set out in section 5 and the manner in which Government functions. 13 In this application, the nature of the documents for which Mr McGuirk sought access were clearly documents that had been created by a Government agency and sent to the Minister for approval of the recommendations made therein. Furthermore, the document were sent more than two years ago. Once approved or not approved the usual practice is for this type of document to be returned to the agency concerned so that it can take the appropriate action in accordance with the Minister's decision. In this application the evidence is that this usual practise was followed as the Minister has said he did not hold the documents for which Mr McGuirk has sought access. Mr McGuirk has not produced any material which would suggest otherwise: Cianfrano v Director General, Department of Commerce [2006] NSWADT 195. 14 On the basis of the proper construction of section 6(2)(f) of the FOI Act and the material before the Tribunal, even if the relevant agency continues to hold the documents in question, they are not documents which the Minister has an immediate right of access to. If Mr McGuirk wishes to obtain access then he must make the appropriate application to the agency concerned. Transfer of application 15 Section 20 of the FOI Act provides that an agency 'may' transfer an FOI application to another agency where the agency to which the application has been made does not hold the documents in question and it relevantly provides as follows: 20 Transfer of applications (1) An agency to which an application has been made may transfer the application to another agency: (a) if the document to which it relates: (i) is not held by the first mentioned agency but is, to the knowledge of the first mentioned agency, held by another agency, or (ii) is held by the first mentioned agency but is more closely related to the functions of the other agency, and (b) if consent to the application being transferred is given by or on behalf of the other agency. 16 As mentioned above this particular provision equally applies to a request for access to a "Minister's document": see section 38 of the FOI Act. However, it must be construed in accordance with the meaning of a "Minister's document" and 'a document held by the Minister'. 17 Section 20 must be read together with section 19 of the FOI Act which relevantly provides as follows: 19 Incomplete and wrongly redirected applications (1) … (2) If an agency is unable to deal with an application because the document to which it relates: (a) is not held by the agency but is, to the knowledge of the agency, held by another agency, or (b) is held by the agency but is more closely related to the functions of another agency, the agency shall take such steps as are reasonable practicable to assist the applicant to direct the applications to the other agencies. 18 Again section 19 equally applies to requests for access to a "Minister's document", subject to the meaning of a "Minister's document" and 'a document held by the Minister'. Unlike section 20, the requirements of section 19 are mandatory if the Minister or agency has the requisite knowledge. 19 Where a Minister or agency does transfer an FOI application under section 20, then the Minister is not required to determine the application by reason of section 24(3) of the FOI Act. 20 In this application, the Minister has determined Mr McGuirk's FOI application and, as mentioned above, that determination is to be found in the Minister's notice of determination, which was made in accordance with section 28(1)(b) of the FOI Act. The essence of the Minister's determination is that he refused Mr McGuirk access to the documents he requested on the basis he did not hold these documents. It is this decision that is reviewable by the Tribunal: see section 38 of the Administrative Decisions Tribunal Act 1997 and section 53(1)(3)(a)(i) of the FOI Act. And for the reasons set out in [6] to [13] above, in my opinion, the decision of the Minister is the correct and preferred decision. 21 The Tribunal's jurisdiction to review decisions (including a refusal to do any other act or thing under an Act other than the ADT Act – see section 6(1)(g) of the ADT Act) made pursuant to the FOI Act are governed by section 22(3) and 53 of the FOI Act. Neither of these sections relate to an agency's or Minister's actions in regard to the requirements of section 19 and the discretion in section 20 of the FOI Act. Accordingly, the has no jurisdiction to consider whether the Minister should transfer Mr McGuirk's FOI application to the relevant agency. Mr McGuirk I assume is aware of the identity of that agency and he can make an application under the FOI Act to that agency and the agency will be required to deal with that application in accordance with that Act. Conclusion 22 As stated above, in my opinion, the decision of the Minister the subject of review is the correct and preferred decision and I order that the decision of the Minister is affirmed.