Neary -v- The Treasurer, New South Wales [2002] NSWADT 123

CITATION: Neary -v- The Treasurer, New South Wales [2002] NSWADT 123 DIVISION: General Division APPLICANT PARTIES: Vincent Neary RESPONDENT Treasurer, New South Wales FILE NUMBER: 023046 HEARING DATES: 05/06/2002 SUBMISSIONS CLOSED: 06/05/2002 DATE OF DECISION: 06/05/2002

BEFORE: O'Connor K - DCJ (President) APPLICATION: Summons - general principles MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 R -v- A and B [1999] NSWADTAP 2 APPLICANT In person REPRESENTATION:

RESPONDENT N Sharp, barrister ORDERS: The Tribunal directs the Registrar not to issue the proposed summonses.

Delivered ex tempore 1 The question before the Tribunal today is the question of whether to direct the Registrar not to issue summonses that have been sought in the context of the present proceedings by the review applicant, Mr Neary. The application for review is of a determination under the Freedom of Information Act 1989 made by the relevant officer in the office of the Treasurer to refuse access to certain documents that were considered to fall within the scope of a request made by the applicant, Mr Neary. 2 The proceedings at this stage have been divided into two segments and the first segment is concerned with the question of whether in fact there was an adequate search undertaken by the responsible officer in the Minister's office. The hearing is due to be held in relation to that question on 24 June. Once that matter is dealt with, the substantive hearing of the application for review (in which the question of the applicability of the exemptions that have been invoked will be considered) will proceed. The adequacy of search hearing will have before it an affidavit filed 23 April 2002 by the responsible officer, Ms Bransgrove. At an earlier directions hearing she was asked to attend the hearing on 24 June so as to be cross-examined by the applicant; and questioned if necessary by the Tribunal. 3 The Tribunal in some earlier decisions has commented on the limitations which affect the Tribunal in relation to the consideration of adequacy of search disputes (e.g. B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168.) It is not uncommon for applicants for access to documents to be concerned that their access requests have not been responded to in full; and in that regard be worried that relevant documents have simply not been identified or found by a respondent indifferent to the request. The approach that the Tribunal has taken where such concerns are raised is to obtain evidence from the officers that have been responsible for handling the application; and on some occasions from officers who have then undertaken further searches in light of the concerns raised by the applicant for access. 4 It may be the case, for example, that the applicant for access can point to material that is in the applicant's possession which would point to the possibility that a document or documents that are being sought could be found in locations other than those already searched. There was one instance involving the Commissioner of Police in the New South Wales Police Service where records managers did locate some additional documents when they undertook further searches based on the concerns of the applicant: B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168. 5 Today, Mr Neary, the review applicant, seeks to have issued by the Tribunal summonses to the Treasurer of New South Wales, the Minister for Transport, the Secretary of New South Wales Treasury, the Director General, Department of Transport and the Chief Executive, State Rail Authority. That request is made on the basis that, as I understand it, the news story of 1 March 1997 and the related press release of 28 February 1997 (which form the background to the present request) must have been founded on information and documents that extend beyond the six documents identified as being under the Minister's control and relevant to that press release, as identified in Ms Bransgrove's reply to Mr Neary's request and in her affidavit. 6 As I have indicated in the discussion that has ensued this morning between myself and Mr Neary, there needs to be more material than an assertion by the review applicant that a certain state of affairs must exist before the Tribunal takes the step of issuing or permitting the issue of summonses of the kind that are sought today. The Tribunal as I see it, has to proceed when dealing with disputes over adequacy of search on a basis that accords reasonable respect to the officers that are responsible for handling public requests for access to documents under the Freedom of Information Act. 7 As matters stand at the moment, we have a responsible officer of some seniority handling the request, that officer has stated that she has undertaken an appropriate search. She has given a detailed explanation of the nature of the document handling arrangements in her Minister's office and the steps that she took and the views that she formed in the affidavit. The Tribunal, as I see it, has to proceed on the basis of assuming - until there is information to suggest otherwise - that responsibilities of this kind are performed regularly by officers. This concept is sometimes spoken of as the presumption of regularity. 8 As matters stand at the moment, the Tribunal has a number of assertions before it from Mr Neary about what might be the situation in relation to the state of the documents held by the Minister's office; but there is nothing, as I see it, that could be reasonably called evidence which might substantiate those assertions. 9 It is said by Mr Neary that the Tribunal should exercise the general powers that are given to it under the Administrative Decisions Tribunal Act 1997 s 73(5)(b) in particular, so as to progress this inquiry today. The provision states that the Tribunal is to ensure that 'all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts and issue on any proceedings.' The question I see myself dealing with today is simply, what is the material that is "relevant" to the question that I have to deal with in terms of these summonses, i.e. the adequacy of search question. At the moment what we have is the reply correspondence to Mr Neary from the responsible officer; an affidavit from the responsible officer; and a promise that the responsible officer will attend for cross-examination. 10 That appears to me to be the relevant material at this stage in relation to that inquiry. I have no justification which can be described as rational or having some basis in fact for acceding to the suggestion that Mr Neary presses. Mr Neary asserts that there 'must be' other documents in the possession of or under the control of the Minister that fall within the scope of this request; and that issue is one to which the five respondents to the proposed summonses can contribute information. 11 It is acknowledged in the law that Courts and Tribunals should be, as I see it, reasonably flexible in their decisions in relation to the issuance of summonses and acknowledge that the notion of a 'legitimate forensic purpose' is not to be construed unduly strictly. 12 If you read the cases, there is a degree of generosity about the use of summonses, really on the basis that at early stage in proceedings, it is fairly difficult to tell what might ultimately turn out to be relevant in a strict legal sense: R -v- A and B [1999] NSWADTAP 2. So you do see in the cases an acknowledgment of that kind. It may be that those principles are more appropriate to adversarial civil proceedings than they are to the kind of inquisitorial role that is involved in the review of administrative decision, but I won't take that point any further today. As matters stand using principles such as that of 'legitimate forensic purpose' and relevance viewed in a generous way, I do not think you have made out a case today, Mr Neary for these summonses to be issued in relation to the question that we have to consider on 24 June. 13 That does not prevent us again looking at that question after 24 June, but the observations I have made today will hopefully assist you and the parties in looking at the questions as they might arise after 24 June. 14 So for those reasons, I grant the application of the respondent which is that the Tribunal direct the Registrar not to issue the proposed summonses; and will now adjourn the matter to 24 June.