Cianfrano v NSW Premier's Department [2007] NSWADT 211

CITATION: Cianfrano v NSW Premier's Department [2007] NSWADT 211

DIVISION: General Division

APPLICANT PARTIES: Robert Cianfrano RESPONDENT NSW Premier's Department

FILE NUMBER: 063400

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 27 June 2007

DATE OF DECISION: 13 September 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search

MATTER FOR DECISION: Jurisdiction

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

CASES CITED: BY v Director General, Attorney General's Department [2002] NSWADT 79 Cianfrano v Attorney General's Department of NSW [2007] NSWADT 205

APPLICANT In person REPRESENTATION: RESPONDENT J McDonnell, Solicitor

ORDERS: 1. The Tribunal orders that the Tribunal has no jurisdiction to hear and determine this application.; 2. No order for costs

REASONS FOR DECISION Background 1 On 9 May 2006 the Office of the Minister for Primary Industries ("OMPI") received an application under the Freedom of Information Act 1989 ("the FOI Act') seeking: "The written Ministerial order in section 5(3) and 8(2) of the Sydney Market Authority (Dissolution) Act 1997 No. 62" 2 On 19 September 2006 the OMPI agreed with the applicant to transfer the application to the NSW Premier's Department under section 20 of the FOI Act. By letters dated 9 October 2006 the OMPI transferred the application under section 20(4) of the FOI Act to the respondent and advised the applicant accordingly. 3 The documents relating to the Sydney Markets are held by the respondent in the Office of the Coordinator General. The respondent engaged a consultant to conduct a search and on 30 October 2006 the consultant reported that the respondent did not hold the relevant documents - only drafts of the documents were held. (The documents were subsequently located in offices of the Crown Solicitor and a copy was provided to the applicant.) By determination dated 8 November 2006, the Deputy Director- General determined that there were no documents that met the applicant's request and accordingly, the request was refused pursuant to section 28(1)(b) of the FOI Act. 4 On 10 November 2006 the applicant lodged an application with the Tribunal. In the application, the applicant identified the decision to be reviewed as the OMPI letter of 9 October 2006 transferring the application to the respondent. The applicant asserted that there was a deemed refusal by the respondent pursuant to section 20(4) of the FOI Act. 5 The respondent submits that the Tribunal has no jurisdiction to determine the application, as the application did not apply for an internal review of a determination. That issue is to be determined as a preliminary issue. Each of the parties has filed submissions on the jurisdiction point and it was agreed that the matter would be determined on the basis of those submissions. Applicable legislation 6 Section 20 of the FOI Act provides: 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 firstmentioned agency but is, to the knowledge of the firstmentioned agency, held by the other agency, or (ii) is held by the firstmentioned 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. (2) An agency that transfers an application to another agency shall, if it holds the document to which the application relates, forward a copy of the document to the other agency together with the application. (3) An agency that transfers an application to another agency shall forthwith cause notice of that fact to be given to the applicant. (4) Such a notice shall specify the day on which, and the agency to which, the application was transferred. (5) An agency is not required to include in a notice any matter that is of such a nature that its inclusion in the notice would cause the notice to be an exempt document. (6) An application that is transferred from one agency to another shall be taken to have been received by the other agency: (a) on the day on which it is transferred, or (b) 10 days after the day on which it was received by the agency to which it was originally made, whichever is the earlier. 7 Section 24 of the FOI Act provides: 24 Determination of applications (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) Nothing in subsection (2) prevents an agency from determining that access should be given to the document even though more than 21 days have elapsed after the application was received by the agency. Sections 64 and 65 apply to access given pursuant to such a determination in the same way as they apply to access given pursuant to any other determination under this Act. (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. 8 Section 88 of the ADT Act provides: 88 Costs (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. Submissions 9 The respondent submits that pursuant to section 20(6)(b) of the FOI Act, it is deemed to have received the FOI application on 19 May 2006. It says that this is the case notwithstanding that it did not actually receive the FOI application until 9 October 2006. Pursuant to section 24(2) the respondent is deemed to have determined the application by refusing it 21 days after the application was received. As the respondent gave no notice of determination to the applicant, the application for internal review had to be lodged within 49 days of 9 May 2006, that is, by 27 June 2006. No application for review was made while the deemed refusal determination was subject to a right of internal review. Thus, a review application to this Tribunal cannot be made. 10 The respondent submits that the effect of these provisions is that no review application can be made to the Tribunal because there was no application for internal review made under section 34 within 49 days after the application being received by the OMPI on 9 May 2006. 11 The respondent further submits that the applicant should be ordered to pay the respondent's costs from 2 March 2007 when the documents sought by the applicant were provided to him. In support of its submission that "special circumstances" for the purposes of section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") exist it points to the fact that the applicant commenced proceedings without having sought internal review and that the applicant was provided with the documents he sought on 2 March 2007. The respondent says that commencing proceedings without having sought an internal review is a fundamental defect of which the applicant should have been aware. 12 The respondent points to correspondence in which it alerted the applicant to this defect and as early as 14 February 2007 put him on notice that it would seek costs. 13 The applicant does not dispute the chronology set out above. He says that the respondent failed to give an appropriate response to his application and that its determination was made outside the time period allowed by the FOI Act. He further says that the notice provided by the respondent failed to comply with the requirements of sections 28 and 45 of the FOI Act. 14 The applicant requests that the Tribunal direct the respondent to fulfil its obligations in accordance with the statutory requirements. Findings 15 I agree with the respondent's argument that the Tribunal has no jurisdiction in this matter. I set out my understanding of the laws on this issue in my recent decision in Cianfrano v Attorney General's Department of NSW [2007] NSWADT 205. I do not propose to repeat them here. 16 In my view the relevant provisions in the FOI Act are unambiguous. The Tribunal has no jurisdiction to conduct an external review under the FOI Act if the determination has been subject to a right of internal review under sections 34 or 47 but no application for such a review was made during the available time 17 There is a consistent line of authority in this Tribunal that supports this view. In BY v Director General, Attorney General's Department [2002] NSWADT 79 the Tribunal's President stated at [22] - [23] 22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. ... 23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, I consider that some discretion should be allowed to a Divisional Head sitting at first instance to revisit prior rulings, where the Divisional Head has doubts about the prior rulings or the questions involved are of great significance, such as ones raising important issues of power or jurisdiction. (Such a ruling may itself be appealed to the Appeal Panel. In that event, the Divisional Head, who would customarily preside, is ineligible. Where there is an appeal in relation to such a ruling, the Appeal Panel should, in my view, give consideration, if it regards the ruling as doubtful, to referring the controversial question to the Supreme Court for determination.) 18 The applicant has presented no new, significant argument to warrant revisiting this issue. Accordingly, it is my view that as the applicant failed to request an internal review of the respondent's decision, the Tribunal has no jurisdiction to hear and determine his application for review. 19 In Cianfrano v Attorney General's Department I also considered an application for costs brought by the Attorney General's Department and made comments in relation to the issue. I note that this matter was argued at a similar time as the Cianfrano v Attorney General's Department matter and therefore my comments are equally applicable to this matter. For similar reasons I do not agree that an order for costs is appropriate in this case. 20 The circumstances in this matter however are dissimilar because of the long period of delay between the time that the OMPI received the FOI request and the transfer of the request between the OMPI and the respondent. It is understandable that the applicant might have become frustrated at the failure of the OMPI to determine his request. This matter also differs from the Cianfrano v Attorney General's Department matter in that the applicant has been provided with a copy of the documents he sought and still persisted with his application. 21 The applicant's motivation in persisting with the application in the tribunal appears to be founded on the fact that the respondent determined that it did not hold the documents and did not provide a revised determination when they were subsequently located. The documents were located in the office of the Crown Solicitor and the Crown Solicitor has been instructed to act on behalf of the respondent. It is understandable that a non-lawyer may have difficulty in differentiating between documents held by the agency and documents held by the Crown Solicitor when the Crown Solicitor is the agency's solicitor. Nevertheless, I have difficulty in understanding why the applicant has requested that the matter be reviewed even though the documents have been released. DECISION 1. The Tribunal orders that the Tribunal has no jurisdiction to hear and determine this application. 2. No order for costs