Appeal Panel - Internal CITATION: Styles v Wollondilly Shire Council [2004] NSWADTAP 46 APPLICANT PARTIES: Lynette Styles RESPONDENT Wollondilly Shire Council FILE NUMBER: 049034 HEARING DATES: 21/10/2004 SUBMISSIONS CLOSED: 10/21/2004 DATE OF DECISION: 10/29/2004 Styles v Wollondilly Shire Council [2004] NSWADT 167 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Robinson MA - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: Freedom of Information Act - access to documents - operation of agencies - leave to extend to the merits - costs - fail to exercise jurisdiction MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 043054 DATE OF DECISION UNDER APPEAL: 08/13/2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information (Fees and Charges) Orders 1989 Hutchinson v Director General Roads and Traffic Authority [2004] NSWADT 48 CASES CITED: Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Murphy v David Jones Limited [2002] NSWADTAP 42 APPLICANT REPRESENTATION: In person RESPONDENT A Seton, solicitor ORDERS: Appeal dismissed; Application for costs refused Introduction 1 Ms Styles, a former councillor of Wollondilly Shire Council, applied to the Council under the Freedom of Information Act 1989 (FOI Act) for access to documents relating, among other things, to litigation between her and the Council which began in the Land and Environment Court. Because Council estimated that it would take 52 hours to process her application, they wrote to her requesting an advance deposit of $960.00 to be paid within 21 days. That figure was based on an hourly rate of $30.00 with a discount of 20 hours because Council accepted that at least part of her application related to her personal affairs. Ms Styles did not pay the deposit because she said it was unreasonable and prevented her from accessing documents in accordance with the substantive provisions and objects of the FOI Act. Council decided to refuse to continue to deal with her application. Ms Styles applied to the Tribunal for a review of that decision. 2 After considering all the evidence and submissions, the Tribunal found that the Council had complied with the relevant legislative requirements and that it had reasonably assessed the extent of the work that would be required to process Ms Styles' application. The Tribunal accepted that the appropriate charge was $30.00 an hour with no payment for the first 20 hours, in accordance with the Freedom of Information (Fees and Charges) Order 1989. Ms Styles appealed to the Appeal Panel against the Tribunal's decision. 3 Ms Styles has the right to appeal to the Appeal Panel on a question of law but must obtain the Panel's permission before the appeal can be extended to the merits of the Tribunal's decision. (Administrative Decisions Tribunal Act 1997 s 113(2)). Council's decision was made under s 22 4 Identification of reviewable decision. Although not expressly stated in the Tribunal's decision, both parties agreed that the decision that the Tribunal was asked to review was the Council's decision to refuse to continue dealing with Ms Styles' FOI application. Section 22(3) of the FOI Act gives an agency discretion to refuse to continue to deal with an application in certain circumstances. That provision states that: 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. 5 There was no dispute that the Council had requested payment of an advance deposit and that Ms Styles had not paid the requested amount within the period of 21 days specified in the request. The Tribunal has jurisdiction under s 22(6) 6 Both parties also accepted that the Tribunal had jurisdiction to review the Council's decision. The Tribunal's jurisdiction arises from s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 22(6) of the FOI Act. Section 38 confers jurisdiction on the Tribunal to review a decision (or class of decisions) if an enactment so provides. In this case s 22(6) provides that: 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. 7 External review under Part 5 relates to reviews by the Ombudsman and the Tribunal. Section 53, which is in Part 5, gives an applicant the right to apply to the Tribunal for a review of certain decisions, not including a decision to refuse to continue to deal with an application under s 22(3). That jurisdiction is conferred separately by s 22(6). Consequently, while Part 5 is applicable to a review of a decision to refuse to continue to deal with an application, s 53 is not relevant because it gives the Tribunal jurisdiction to review other kinds of decisions. Two examples of those decisions are a decision that: · "access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable": s 53(3)(a)(iv); and · "a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred": s 53(3)(a)(v). 8 These decisions relate to the phase in the application process where the agency has determined that a charge is payable for dealing with an application. The Council had not reached that phase in relation to Ms Styles' application because she had not complied with the Council's request to pay an advance deposit for any charge that may subsequently be incurred. Consequently neither s 53(3)(a)(iv) or (v) is relevant to any issue in dispute in these proceedings despite the fact that it is located in Part 5 of the FOI Act. 9 Ms Styles objected to the Tribunal's reliance on the decision in Hutchinson v Director General Roads and Traffic Authority [2004] NSWADT 48 as authority for the proposition that it had jurisdiction. Since she agreed that the Tribunal does have jurisdiction, there is no need to deal with those submissions. What can the Tribunal take into account when reviewing the decision? 10 Merits review. The critical question which arises in these proceedings is the identification of the matters which the Tribunal can take into account when reviewing the Council's decision. As Ms Styles pointed out, the Tribunal is conducting a merits review. Section 63 of the ADT Act explains what that means. 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, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. 11 There is very little discussion in the case law or literature of the meaning of the "correct and preferable" decision. The term appears to have originated in the decision of the Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 where Bowen CJ and Deane J said at p 589, that the question for the determination of the Administrative Appeals Tribunal was whether the decision was the "correct or preferable one" on the material before the tribunal. In its report entitled " Better Decisions: review of Commonwealth Merits Review Tribunals" (Report No 39) the Administrative Review Council expressed the view at p 10, that their Honours intended to convey the meaning that a decision must be correct, but that if there is a range of decisions that could be made, all of which would be correct, the decision maker has a choice as to the preferable decision. 12 Requirements with which Council must comply. To be a valid decision, the Council's decision to refuse to continue dealing with Ms Styles' FOI application must comply with the requirements set out in the legislation. (The Council's decision does not need to be valid in order for the Tribunal to have jurisdiction to deal with it: s 6(2) and (3) of the ADT Act.) The legislative requirements for a valid decision are that before making a decision to refuse to continue to deal with Ms Style's application, the Council must have: a) formed an opinion that the costs of dealing with the application were likely to exceed the amount of the application fee: s 21(1); b) requested the applicant to pay to it such amount, by way of advance deposit, as it determined: s 21(1); c) requested an amount which together with the application fee, did not, in its opinion, exceed the amount that would be necessary to cover the costs of dealing with the application: s 21(3); d) included in the request for an advance deposit a notice that set out the basis on which the amount of the deposit was calculated: s 21(4); e) waited for the period of time specified in the request to expire: s 22(3)(b); f) given written notice to the applicant of any decision to refuse to continue to deal with the application: s 22(5). 13 The Council complied with the matters in (a), (d), (e) and (f). In relation to (b) and (c) Ms Styles disagreed with the Council's decision to stop dealing with her application and disputed the amount that the agency requested her to pay by way of advance deposit. She said that Council was wrong to rely on Freedom of Information (Fees and Charges) Order 1989. Council calculated the amount necessary to cover the costs of dealing with the application on the basis of 52 hours at $30.00 per hour, with a discount of $600 which was equivalent to the first 20 hours. That amount, and the extent of the discount, were derived from Cl 5 of the Freedom of Information (Fees and Charges) Order 1989. That Order relates to the "charges" to be imposed under s 24(b) and s 24(c) for "dealing with" an application and for "giving access" to a document. Clause 5 states that: (1) The charges (a) for the giving of access to a document (being a charge determined under section 24(b) of the Act); and (b) for dealing with an application (being a charge determined under section 24(c) of the Act, are to be calculated on the basis of an hourly rate of $30 per hour. (2) Such a charge is not to be imposed in respect of -- (a) the first 20 hours during which -- (i) an application under section 17 or 36 of the Act (being an application made by a natural person in respect of documents relating to his or her personal affairs) is dealt with; or (ii) access to a document the subject of such an application is give; or (b) any application under section 34 of the Act. (3) Such a charge is to be calculated on the time spent by the agency's or Minister's staff in actually dealing with the application or giving access to the document, calculated to the nearest quarter of an hour. 14 The Council was correct to calculate the amount of the advance deposit on the basis of Cl 5 of the Order. Section 21(1) gives the Council power to request an amount that it "may determine" by way of advance deposit. The only limit on the amount which an agency can request is that it must not exceed the amount which, in the opinion of the Council, will be necessary to cover the costs of dealing with the application: s 21(3). The "costs of dealing with the application", once the advanced deposit is paid, are the costs payable under s 24(1)(c). That provision states that: (1) After considering an application for access to a document, an agency shall determine: (c) any charge payable for dealing with the application. 15 In calculating the amount of the advance deposit, Council is predicting how much it will ultimately charge for "dealing with the application" under s 24, if the deposit is paid and the application is processed. Because the amount requested under s 21 is a deposit for the amount it may ultimately charge under s 24 for dealing with the application, the amount of the advance deposit must be based on the amounts set out in the Order. 16 The Order states that a "charge" is not to be imposed for the first 20 hours during which an application by a natural person in respect of documents relating to his or her personal affairs is to be dealt with. Ms Styles submitted that the agency should have spent 20 hours dealing with her application before requesting an advance deposit because her application relates exclusively to her personal affairs. Council disputed that Ms Styles' application relates exclusively to her personal affairs, but nevertheless "discounted" the time on which it calculated the amount by 20 hours. Ms Styles also submitted that the agency's FOI application form assured her that she would not be charged for the first 20 hours if her application related exclusively to her personal affairs. The relevant part of the application form states that: I understand that a $30 application fee is required when lodging this application and that if the nature of my request is about something other than my own personal affairs then I will be liable for an additional charge of $30 for every hour (except the first) necessary to fulfil my request. (Emphasis added.) 17 Even if the whole of Ms Styles' application relates to her personal affairs, we do not agree with her submission that Council was obliged not to request an advance deposit until they had spent 20 hours dealing with her application. By requesting an advance deposit, the Council was not imposing a charge for the first 20 hours, they were merely requesting an advance deposit to deal with the application. If Ms Styles had paid the deposit, the Council would have dealt with the application and then determined, under s 24(c) and Cl 5 of the Order, the amount of any charges payable. If, after spending 20 hours or less dealing with the application, the Council had found that the application related exclusively to Ms Style's personal affairs, then presumably the entire amount of the advance deposit would have been refunded. On the other hand, if, after spending 52 dealing with the application, the Council had found that the application related exclusively to Ms Style's personal affairs, then no refund would have been given because, when requesting the advance deposit, the Council had already discounted the time by 20 hours. 18 At [26] and [27] of the decision, the Tribunal made a finding of fact that "the Council has reasonably assessed the extent of the work that would be required to process Ms Styles' request." In addition, as the amount requested as a deposit was consistent with the hourly rate the Council would ultimately be able to charge pursuant to the Order, it was the correct amount. The Tribunal decided at [28] that Council had met the requirements of s 21. On the basis of the reasoning outlined above, we agree with that conclusion. 19 Discretion. Even if the legislative requirements have been fulfilled, Council has a discretion to refuse to continue to deal with the application. The thrust of Ms Styles' submissions was that it was contrary to the objects of the FOI Act, and in particular, s 5(3)(b), for the Council to have refused to continue to deal with her application. That provisions states that: (3) It is the intention of Parliament: (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. 20 The Council has discretion to refuse to continue dealing with an application. When exercising that discretion, the objects of the Act may be relevant. Section 53(3)(b) encourages decision makers to deal with applications for access promptly and at the lowest reasonable cost. That does not mean that an agency is prevented from requesting an advance deposit or that the amount of the deposit should be less than that set out in the Order . Ms Styles did not point to any other relevant factors that bear on the merits of the Council's decision. 21 Other submissions. Ms Styles also submitted that the Tribunal overlooked s 16 which gives a person a legally enforceable right to be given access to an agency's documents. While we agree that s 16 does give a person that right, it is not an absolute right. The right of access is subject to the provisions of the Act. The Act contains numerous restrictions on a person's right to access an agency's documents, including the ability of an agency to refuse to continue dealing with an applicant's application in certain circumstances. 22 Another of Ms Styles' submissions was based on the provisions of s 25(5). That sub-section prevents an agency from refusing access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources. Since the agency did not make a decision to refuse access to a document on that basis, those submissions are not relevant. Similarly, any reference to Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 is irrelevant because it does not relate to s 21 or s 22 of the FOI Act. 23 Finally, Ms Styles submitted that the Tribunal erred in making the comment at [29] that it was open to her to vary her request in such a way that she obtains access to the documents that she seeks. That comment was not an essential part of the Tribunal's reasoning. It was merely an observation. Consequently, we are satisfied that the Tribunal did not make any error of law in affirming the Council's decision. Extension to the merits. 24 The remainder of Ms Styles' grounds of appeal either do not disclose any error of law or raise questions of fact. In relation to the questions of fact we are not persuaded that we should extend the appeal to the merits of the decision. Those matters are either inconsequential or do not raise questions of sufficient significance to justify an extension of the appeal. (See Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8.) Application for costs 25 Under s 88 of the ADT Act, the Tribunal may award costs but "only if it is satisfied that there are special circumstances warranting an award of costs." The Council applied for costs on the basis that Ms Style's application was entirely without merit because no question of law was raised. (Murphy -v- David Jones Limited [2002] NSWADTAP 42 at [16]. The Council also pointed out that because Ms Styles is a qualified solicitor, she should have known that her appeal had no merit. Although we have not found that the Tribunal made any error of law, complex and previously unresolved questions were raised and determined by this appeal and it cannot be said that the appeal was entirely without merit. On that basis the application for costs is refused. Orders 1. Appeal dismissed. 2. Application for costs refused. 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.