McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269

CITATION: McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269

DIVISION: General Division

APPLICANT Gerard Michael McGuirk PARTIES: RESPONDENT NSW Ombudsman

FILE NUMBER: 053250; 063028

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 25 June 2007

DATE OF DECISION: 21 November 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information Act - access to documents - operations of agencies

MATTER FOR DECISION: Preliminary matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Freedom of Information Act 1982 (Cth) Ombudsman Act 1974

Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 DF v Director General Attorney General's Department [2002] NSWADT 164 CASES CITED: Esber v The Commonwealth of Australia and Another [1992] HCA 20; (1992) 174 CLR 430 Edelsten and Australian Federal Police [1985] 4 AAR 220 Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 Raethel v Direct General Department of Education and Training [1999] NSWADT 108

In person REPRESENTATION: S Cohen, solicitor

ORDERS: The matters are listed for further directions on Friday 23 November 2007 at 11am.

REASONS FOR DECISION 1 These two applications relate to requests made by Mr McGuirk to the New South Wales Ombudsman (the "Ombudsman") under the Freedom of Information Act 1989 ("the FOI Act"). In his application which is the subject of matter number 053250 ("the 053250 application") he sought access to the following documents: 1. Copy of any policy/directive of the NSW Ombudsman in regard to management of conflicts of interest by officers of the NSW Ombudsman from 1 January 2000. 2. Copy of any notifications made to the Ombudsman under any such policy/directive by officers of the NSW Ombudsman in regard to universities or any person associated with a complaint regarding a university, the officers of a university, or members of the governing body of a university. 3. Comparative data on the numbers of complaints made against universities, their officers or members of university governing bodies made since 1 January 2000, broken down by University in comparison with the total number of complaints made. 4. Copy of any notification made to the University of New South Wales which forms the basis of the report made by the Deputy Chancellor at the time to the UNSW Council at its meeting on 10 November 2003 that "the Ombudsman had said there was no case for the University to answer" in regard to the complaints made to the Ombudsman by Gerard Michael McGuirk. 5. Copies of correspondence between the University of New South Wales and the NSW Ombudsman in relation to UNSW's attempts to prevent the release of the report of its investigation of the University's handling of the Bruce Hall affair, the complaints made by Mr Peter Curtin, and the misconduct action taken by the University against Associate Professor John Carmody. 2 In his application which is the subject of matter number 063028 ("the 063028 application") Mr McGuirk sought: "Part 1 of Application The document to which I am seeking access under this part is the notification made by the Ombudsman in accordance with section 11 of the Independent Commission Against Corruption Act 1988 (the "ICAC Act") to the Independent Commission Against Corruption (the "ICAC") in regard to the matters investigated by the Ombudsman in 2001 which led to the report of the Deputy Ombudsman, Mr Chris Wheeler, dated 22 February 2002, with the title: "Investigation concerning the conduct of the University in its consideration of a protected disclosure alleging maladministration within the Education Testing Centre". This report found that certain officers of the University of New South Wales (the "UNSW") arguably had breached section 20 of the Protected Disclosures Act 1994 (the "PD Act") by taking detrimental action against the 'whistleblower' in that case, Ms Margaret Love. The report also found that officers of the UNSW had sought to mislead the Ombudsman in relation to the handling by the UNSW of the protected disclosures made by Ms Love. Part 2 of Application The documents to which I am seeking access under this part are copies of all correspondence between the University of New South Wales and the Office of the Ombudsman in relation to the investigation by the Ombudsman of the complaints made by: The so called 'Hall whistleblowers' - Dr Clara He, Dr Juchuan Chen, Ms Hong Ha and Dr Mark Penny; Associate Professor John Carmody; and Mr Peter Curtin, commencing with the letter sent by Mr Bruce Barbour to Professor John Niland dated 13 June 2002 with the subject line: "Re: protected disclosures about the University of New South Wales (UNSW)". Please note that I am not seeking by way of this application copies of the attachments to this correspondence." 3 The Ombudsman released some documents in response to the applications but rejected the request in regard to the remaining documents citing section 9 and Schedule 2 of the FOI Act. The Ombudsman asserts that those documents fall within the complaint handling, investigative and reporting functions of the office. Accordingly, it is submitted, the Tribunal's jurisdiction is limited to determining whether that assertion has been correctly made. If that is the case, the Tribunal has no power to consider the applications. 4 The substantive dispute between the parties has been narrowed and it is common ground that the remaining issues concern those documents falling within the scope of the requests in paragraphs 2 and 5 of the 053250 application; and Part 2 of the 063028 application. 5 At the substantive hearing of the applications on 28 May 2007 I indicated that the only matters to be determined at this time are the substantive matters, and the any remaining matters will be considered following the determination of the substantive matters. Applicable Legislation 6 Section 24(1)(a) of the FOI Act provides for the determination of applications. Section 53(1) provides that a person who is aggrieved by a determination made under section 24 or 43 may apply to the Tribunal for a review of the determination. Section 53(3)(a)(i) provides that a person is aggrieved by a determination if the determination is to the effect that access to a document is refused. 7 Section 9 of the FOI Act provides: "9 Certain bodies etc exempt from operation of Act Any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act." 8 In so far as is relevant, schedule 2 of the FOI Act provides: "Schedule 2 – Exempt bodies and offices (section 9) … The office of Ombudsman — the complaint handling, investigative and reporting functions of that office." The Ombudsman's Case 9 The Ombudsman relies on a number of affidavits and written submissions. It is submitted that the effect of section 9 and Schedule 2 of the FOI Act is to exempt from the operation of the FOI Act the complaint handling, investigative and reporting functions of the office of the Ombudsman. If the Tribunal is satisfied, as a matter of fact, that the documents that Mr McGuirk has requested fall within those functions, the Tribunal has no jurisdiction to hear the application in respect of those documents. Once documents are categorised as section 9 documents, the Act will have no other application. The Ombudsman submits that this approach is consistent with the decision of the Supreme Court in Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 ("ICAC v McGuirk"). 10 The Ombudsman argues that a broad approach should be taken in regard to the application of section 9 and Schedule 2 of the FOI Act when considering whether documents relate to the complaint handling, investigative and reporting functions of the office of the Ombudsman. In support of this submission The Ombudsman points to two decisions of the President of the Tribunal. 11 In Raethel v Direct General Department of Education and Training [1999] NSWADT 108, the President considered the scope of the exemption of the respondent under Schedule 2 to the FOI Act in respect of "functions relating to the storing of, reporting on or analysis of information with respect to the ranking or assessment of students who have completed the Higher School Certificate for entrance into tertiary institutions". In considering section 9 in the context of determining that the respondent was an exempt agency in respect of an application for certain Universities Admission Index data, the President noted at paragraph 33: 33 The expression "functions relating to" these matters is a broad one. "Functions" can not be reasonably read down in the way suggested by Mr Lancaster to mean only those functions of storage and analysis that relate to listing student scores by schools. Other types of analysis of the information are covered. 12 The President again considered the scope of the exemption in Schedule 2 to the FOI Act - in respect of the prosecuting functions of the office of the Director of Public Prosecutions ("the DPP") - in DF v Director General Attorney General's Department [2002] NSWADT 164. In respect of a document or a routine kind prepared by a Crown Prosecutor for the DPP in accordance with office practice where a particular type of outcome occurs in a criminal trial, the President was satisfied that the advice was reasonably connected with the conduct of prosecuting functions of the DPP. The President noted at paragraph 25: 25 The 'functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal). … 13 The Ombudsman concedes that this Tribunal is not bound to follow the approach taken by the President in Raethel and DF but argues that it should nevertheless do so. Mr Cohen, solicitor for the Ombudsman refers to views expressed in Rittau -v- Commissioner of Police, New South Wales Police Service and anor [2000] NSWADT 186 where Judicial Member Robinson considered the issue of whether the Tribunal is bound to follow earlier decisions. The Judicial Member stated: "60 The Tribunal is not bound by precedent or the doctrine of stare decisis in the strict sense in relation to being formally bound by earlier decisions of the Tribunal. However, for a number of reasons, I consider the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or the Deputy Presidents. 61 The reasons why these decisions should be followed is because they are authoritative and they go some way to seeking to ensure consistency in the Tribunal's decision-making. Achieving that objective would constitute a significant step towards the Tribunal fulfilling its promotion and education role suggested in section 3(g) of the ADT Act which provides that the objects of the ADT Act are: "to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales." 62 In my view, consistent decisions of the Tribunal go some way to promote and effect that compliance. 63 The Tribunal should only refuse to follow a decision of the Appeal Panel or the Tribunal as constituted by the President or the Deputy Presidents if it concludes that the previous decision is clearly wrong. That is the approach based upon comity adopted by some other Courts and Tribunals in Australia that are not strictly bound by their own previous decisions (see, for example, Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 1375 (Finn J)." 14 The Ombudsman relies on the affidavits of Ms Michelle Stewart, Mr Geoff Briot and Ms Monique Adofaci. 053250 15 With respect to paragraph 2 of the 053250 application the Ombudsman asserts that any conflict of interest notifications made by Ombudsman officers concerning universities are related to the complaints handling, investigative and reporting functions of the Ombudsman. Accordingly they fall within the scope of section 9 and Schedule 2 of the FOI Act. Mr Cohen submits that the Tribunal has no discretion to release the documents if they have been correctly categorised as falling within the scope of section 9 and Schedule 2. 16 With respect to the request for conflicts of interest notifications the Ombudsman contends that all the notifications fall within the complaint handling, investigative and reporting functions of the office. A copy of each of the relevant documents has been provided to the Tribunal as annexures to Ms Stewart's affidavits. 17 With respect to paragraph 5 of the 053250 application the Ombudsman asserts that a search of its records was unable to locate any correspondence answering Mr McGuirk's request. Ms Adofaci provided an affidavit sworn 4 May 2007 setting out the approach taken in regard to the categorisation of the conflicts of interest notifications and the attempts to locate documents that fall within the scope of paragraph 5 of the 053250 application. She states that she was unable to locate any such documents. 18 The Ombudsman has identified further documents that are dated after the date of receipt of the McGuirk's request but which would otherwise be within the scope of the request. The Ombudsman relies on Edelsten and Australian Federal Police [1985] 4 AAR 220 as support for the submission that the McGuirk has no right to obtain access to those documents. In Edelsten the Administrative Appeals Tribunal considered the Commonwealth Freedom of Information Act 1982 and concluded that the last possible cut-off date should be the date of application for review in the Tribunal. It did not accept that an agency is required to provide all future documents relating to a request and stated at paragraph [17]: "... section 11 of the Act gives to a person a legally enforceable right to obtain access, in accordance with the Act, to a document other than an exempt document. Section 15 provides that a person who wishes to obtain access to a document may make a request for access to the document. The request must provide such information as is reasonably necessary to enable the agency to identify the document. Section 18 provides that where the requirements of section 15 have been met, and where any charge which, under the regulations, is required to be paid before access is granted has been paid, a person shall be given access to a document provided that it is not an exempt document. It seems to us that these sections are expressed in terms of a document that is in existence at the time of the making of a request or a decision. They do not appear to give a person a right to obtain, or to impose upon an agency or Minister a correlative duty to provide, access to all future documents which satisfy the terms of the request." 063028 19 With respect to Part 2 of the 063028 application the Ombudsman asserts that any documents which would be within the scope of this part of the application would fall within the scope of section 9 and Schedule 2 of the FOI Act. He argues that any such documents would clearly concern the Ombudsman's complaint handling and investigative functions. In addition, he says that any report would clearly relate to the Ombudsman's reporting functions. The Ombudsman relies on the affidavit of Mr Briot sworn 30 November 2005 setting out the approach taken in regard to the complaints made to the Ombudsman by Mr McGuirk and correspondence between the Ombudsman and the University of NSW and the confidential affidavit of Mr Briot sworn on 4 May 2007. The Ombudsman also relies on the affidavit of Ms Adofaci also sworn on 4 May 2007. 20 The Ombudsman provided to the Tribunal a schedule which sets out the details of the various files which hold correspondence which has been identified as meeting the terms of the Part 2 of the 063028 application request. The Ombudsman also produced the relevant files to the Tribunal. The Ombudsman submit that each of those documents relate to the Ombudsman's complaint handling, investigative or reporting functions. 21 Ms Adofaci set out her attempts to locate other documents that fall within the scope of Part 2 of the 063028 application. She states that she was unable to locate any such documents. 22 Accordingly, the Ombudsman submits that the Tribunal has no jurisdiction to hear the application if satisfied as a matter of fact that the requested information has been correctly categorised. However, the Ombudsman submits that if the Tribunal is not of the view that the relevant documents come within section 9 and Schedule 2 of the FOI Act, the matter should be remitted to the Ombudsman for further determination, as permitted by Part 3 Division 3 of the Administrative Decisions Tribunal Act 1997. Mr McGuirk's Case 23 Mr McGuirk contends that the Tribunal has jurisdiction to review the determinations made by the Ombudsman of the applications, and is obliged at law to do so. He points to Esber v The Commonwealth of Australia and Another [1992] HCA 20; (1992) 174 CLR 430 as supporting that submission. 24 Mr McGuirk does not concede that the Supreme Court decision in ICAC v McGuirk is directly applicable in this matter. He contends that Simpson J did not have the full benefit of his submissions before making her decisions and he indicated that he proposes to appeal the decision. He submits that nevertheless the Tribunal has jurisdiction to review the Ombudsman's categorisation of the documents as falling within Schedule 2 of the FOI Act. 25 He submits that at issue is the scope of the authority conferred or imposed on the Tribunal in respect of decisions taken by the Ombudsman in the exercise of the obligations or discretions conferred or imposed by the FOI Act. He says that further issues that arise for consideration by the Tribunal include: the correct interpretation of the words "in relation to" in section 9 of the FOI Act the correct interpretation of the words "from the operation of" in section 9 of the FOI Act the scope of the "complaint handling, investigative and reporting functions' of the Ombudsman's office" the extent to which the Ombudsman is subject to the provisions of the FOI Act in respect of matters for which he is not exempt. 26 He says that the Tribunal must ascertain whether the documents are reasonably categorised as falling within the scope of the Schedule 2 provision. 27 Mr McGuirk submits that there is no requirement that the Tribunal follow the approach adopted by the President in Raethel and DF. He says that they are not binding authorities but merely the President's opinion. He asserts that the correct approach is to consider the various authorities that consider the expression "relating to" and to interpret the expression in the context of beneficial legislation. He submits that section 5 of the FOI Act provides guidance with respect to the approach to be taken to interpretation of the Act and that it should be given a construction which facilitates disclosure. 28 Mr McGuirk contends that the Ombudsman is attempting to use the provisions of that FOI Act to cover up failures within his office in conflict with the fundamental purpose for the enactment of Freedom of Information legislation. He says that the Ombudsman's challenge to the jurisdiction of the Tribunal amounts to an attempt to deny to him a substantive right conferred on him by the NSW Parliament. He argues that it is to be inferred by the Tribunal that the Ombudsman is the subject of 'regulatory capture'. 29 Mr McGuirk submits that the Tribunal clearly has jurisdiction to review the determinations. He says that the Tribunal should determine this question, and the matters should then be relisted for further directions. Findings 30 I agree with the Ombudsman that the views expressed by Simpson J in ICAC v McGuirk are equally applicable to the proper construction and effect of Section 9 of the FOI Act in regard to the Ombudsman. In ICAC v McGuirk Simpson J considered the issue of the proper construction and effect of section 9 of the FOI Act. Schedule 2 of the FOI Act provides that ICAC is exempt from the operation of the FOI Act in relation to its corruption prevention, complaint handling, investigative and report functions. Her Honour said at paragraphs [17] to [21]: "17 The Appeal Panel then held: "section 9 is a general provision which exempts ICAC from the operation of the FOI Act in relation to certain functions. However, because ICAC is an 'agencies' it is subject to every provision in the FOI Act that relates to agency. Section 24 is one of those provisions. The use of the word 'shall' in section 24 indicates that an agency is under a duty to make a determination after considering an application for access to a document. ICAC has received an application for access to the Madgwick Report. As an agency, it must determine whether access to that document is to be given or refused. One ground of refusal is that it is an exempt document. Exempt documents include a document that contains matter relating to function in relation to which ICAC is, by virtue of section 9, exempt from the operation of this Act." (emphasis added) 18 The Appeal Panel therefore held that, as all requirements of section 53 of the FOI Act had been fulfilled, the ADT had jurisdiction to review ICAC's determination, and the ADT erred in deciding to the contrary, and made the orders to which I have referred above. 19 If the Appeal Panel were correct then any body, office or agency that received a section 17 application would be obliged, even where it determined that the document(s) in question were of the kind specified in Schedule 2, nevertheless to consider and determine the application under section 24. That is not in my opinion, consistent with the terms of section 9. What section 9 does is (in relation to the functions specified in Schedule 2) exempt the body or office from "the operation of [the FOI] Act". That is, once the documents are categorised as section 9 documents, the FOI Act has no further application to that body or office. That includes section 24. 20 I was initially concerned that such a conclusion might mean that a ruling that the documents sought were section 9 Schedule 2 documents was unreviewable. But that is not the case. As I read section 53, it would be open to the applicant to challenge that determination in the ADT. But here Mr McGuirk accepted that the document was of the relevant character. 21 Accordingly, ICAC was exempt from the operation of section 24. It was not, therefore, open to the ADT Appeal Panel to direct ACAC to consider and determine the application. It had no jurisdiction to make that order. It is therefore necessary to set aside the orders of the Appeal Panel, and reinstate the order of the ADT (General Division)." 31 In my view, the correct approach is to first ascertain whether the documents in question are of the kind specified in Schedule 2 to the FOI Act i.e. does each of the documents relate to 'the complaint handling, investigative and reporting functions of that office.' 32 It is apparent from various authorities that have considered the expression "relating to" and similar expressions that these phrases that the words are of the widest import: See for example Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111. 33 In my view, the expression "exempt from the operation of the Act" in section 9 of the FOI Act should be given its ordinary meaning. If a document is correctly categorised as falling within the scope of Schedule 2, the agency does not need to make a determination under section 24. Similarly, it is not required to give a notice of determination under section 28 the FOI Act. However, if the agency has wrongly categorised a document and it in fact relates to the agency's non-exempt functions, then the agency is not exempt from the FOI Act in respect of that particular document. In that situation, the agency's failure to make a determination under section 24 would constitute a deemed refusal under section 24(2) of the FOI Act. That deemed refusal could be the subject of both internal and external review. 34 The Ombudsman Act 1974 makes provision for the complaint handling, investigative and reporting functions of the Ombudsman's office. In my view whether or not a document relates to those functions will be a question of fact to be determined in relation to each document by reference to the circumstances in which it was created or received by the agency. 35 I have examined each of the documents that were provided to the Tribunal on a confidential basis. I am satisfied that each of the conflict of interest notifications which are within the scope of paragraph 2 of the 053250 application request relates to the Ombudsman's complaint handling, investigative or reporting functions. 36 I am also satisfied that each of the documents that have been identified as within the scope of Part 2 of the 063028 application request relates to the Ombudsman's complaint handling, investigative or reporting functions. 37 Accordingly I am satisfied that the Ombudsman does not need to make a determination under section 24 in relation to those documents. 38 For the reasons set out in Edelsten I agree with the Ombudsman's submission that documents that are dated after the date of receipt of the McGuirk's request are outside the scope of the request. On the evidence before me I am satisfied that the Ombudsman does not hold any other documents that fall within the scope of either the 053250 application or the 063028 application. 39 It follows that the Tribunal has no jurisdiction to hear and determine either of Mr McGuirk's applications. 40 As I have indicated above, the matter is to be relisted for further directions in order to determine the future conduct of the matters. Order The matters are listed for further direction on Friday 23 November 2007 at 11am.