Coote v NSW Police Force [2008] NSWADT 220

CITATION: Coote v NSW Police Force [2008] NSWADT 220

DIVISION: General Division

APPLICANT Peter Coote PARTIES: RESPONDENT NSW Police Force

FILE NUMBER: 083018

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 18 July 2008

DATE OF DECISION: 11 August 2008

BEFORE: Pearson L - Judicial Member

MATTER FOR DECISION: Preliminary matter

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

Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 CASES CITED: Chu v Telstra Corporation Ltd [2005] FCA 1730 Cianfrano v Director-General, Department of Commerce (No 2) [2006] NSWADT 195

In person REPRESENTATION: R Saunders

ORDERS: Application for review dismissed.

REASONS FOR DECISION 1 On 19 June 2007 the applicant received copies of documents provided by the respondent in response to a request under the Freedom of Information Act 1989 (the FOI Act). One of the documents provided to the applicant was a report dated 28 February 2006 by Sergeant Weston, which included the statement "BACKGROUND: See attached file". On 16 November 2007 the applicant made a further request under the FOI Act for access to "this file and all its contents". There was no response from the respondent, and on 7 January 2008 the applicant requested review of a deemed refusal. 2 On 11 January 2008 the respondent notified the applicant of a determination to provide him with a copy of a fax from Senior Constable Fitzjohn dated 10 February 2006. On 22 January 2008 the applicant applied to the Tribunal for review, stating: This released document is not any part of the file I am seeking, the document referred to above is part of the correspondence in my endeavours to rejoin the NSW Police dated February 2006. The documents I have mentioned and referred to in the correspondence between Sergeant Weston and Recruitment Branch. The documents I request would be my personnel file and would contain letters, notes, emails or other forms of communication from members of the NSW Police and public, about the stature of myself while I served as a police officer, or may contain information after I had served. I request to see all documents contained in the file referred to in the report from Sergeant Weston being a crucial reference in rejection of my application to rejoin the NSW Police. 3 A planning meeting was held on 19 February 2008 during which the respondent's then representative indicated that further searches would be undertaken. The matter was remitted for reconsideration under s65(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). On 17 April 2008 the respondent notified the applicant that as a result of searches and inquiries undertaken in the Recruitment Branch the "attached file" referred to in Sergeant Weston's report was "only that of the faxed correspondence which was sent to Quakers Hill LAC on 10 February 206 requesting the supervisor reports be provided". 4 At a planning meeting on 1 May 2008 directions were made for filing and serving of witness statements. On 26 May 2008 the respondent's then representative advised the tribunal that in the course of his request for further searches and affidavits, he had ascertained that the Records Section of the Office of General Counsel held a file in which it appeared that documents sought by the applicant were located. The representative requested that the matter be remitted for further consideration. The matter was remitted again under s65 of the ADT Act, and on 12 June 2008 the respondent provided a further determination. That determination was not to vary the determination dated 11 January 2008. The respondent provided an affidavit sworn by Senior Constable Fitzjohn, setting out the standard practice for generation of files by the Recruitment Branch upon receipt of an application from a prospective employee, and referring to an application received from the applicant and information obtained in respect of the applicant, including reports by previous supervisors. In his affidavit Senior Sergeant Fitzjohn stated that the only document sent by him to the Quakers Hill Local Area Command was the one page document dated 10 February 2006. Copies of four documents were provided, including requests for personnel and medical files. The names and other information about persons other than the applicant in those documents were deleted. 5 At a planning meeting on 24 June 2008 the applicant stated that he accepted the deletion of material concerning other individuals, and maintained that there had to be more documents than had been provided. At that planning meeting directions were made for filing and serving of submissions as to the Tribunal's jurisdiction as a consequence of the decision of the Court of Appeal in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 (delivered on 19 June 2008). Submissions 6 The respondent submitted that the only issue to be argued before the Tribunal is the existence of further documents as asserted by the applicant and the adequacy of search undertaken by the respondent. The Court of Appeal in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 has held that a notification that an agency does not hold a document is not a determination for the purposes of s24 of the FOI Act, and thus is not a reviewable decision under s53 of the FOI Act. The respondent submitted that the Tribunal no longer has jurisdiction to hear this matter. 7 In support of his written submissions the applicant provided an affidavit in which he identifies two incidents which occurred while he was a student police officer with the NSW Police from September 2003 to December 2003 and then a sworn officer to April 2004. In the first incident a supervisor stated that she was going to write a report, and the applicant states that while he did not see the report he "would take her word that she filed that report and it sits on my personnel file". The second incident included a conversation with Sergeant Weston, who referred to a report about the incident. The applicant refers to a further incident after he resigned from the NSW Police involving his daughter, as a result of which he made a formal complaint to the Police Integrity Commission. The applicant states that the compliant was passed back to Police internal affairs and he has never seen the result of the complaint, although there is a reference in one of the documents to the applicant holding a grievance towards an officer at Quakers Hill LAC. The applicant states that he has not been allowed to see the report or result of that complaint "but the Commission is quite clear about its existence". In his written submissions the applicant relies on the letter from the respondent's then representative on 26 May 2008 which includes the statement that a legal file had been retrieved and that it appeared that the documents sought by the applicant were contained therein. The applicant submits that the Court of Appeal decision does not apply in circumstances where the file has been located and no search is needed, and relies on the Federal Court decision in Chu v Telstra Corporation Ltd [2005] FCA 1730. Relevant legislation 8 The Tribunal's jurisdiction to review determinations under the FOI Act is conferred by s53 of the FOI Act, which provides, relevantly: 53 Right to make a review application (1)A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination. … (3) For the purposes of this section, a person is aggrieved by a determination: (a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document, or …and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections. 9 Section 53(1) refers to review of a determination made under s24 of the FOI Act. Section 24 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. (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. 10 Section 25(1) of the FOI Act sets out the circumstances in which an agency may refuse access to a document: 25 Refusal of access (1) An agency may refuse access to a document: (a) if it is an exempt document, or (a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions, or (b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or (b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency's policies and practices, or (c) if it is a document that is usually available for purchase, or (d) if it is a document that genuinely forms part of the library material held by the agency. (e) (Repealed) Consideration 11 The applicant's request was for access to the "file" referred to in a report sent on 28 February 2006 by Sergeant Weston to Senior Constable Fitzjohn in response to his request dated 10 February 2006. The applicant's case is that any "file" would consist of more than one document, and that in his case it should include at least the reports referred to in his affidavit dated 4 July 2008. The respondent's determination dated 12 June 2008 declined to vary the original decision dated 11 January 2008. That decision was to release in full the fax dated 10 February 2006. The respondent's case is that the only document included within the scope of the applicant's request for access is Senior Sergeant Fitzjohn's fax dated 10 February 2006, and that the applicant has been provided with a copy. 12 The progress of this matter before the delivery of the Court of Appeal decision in Administrative Decisions Tribunal v Director-General, Department of Commerce & Ors [2008] NSWCA 140 was based on the approach adopted by the Tribunal generally since the decision in Cianfrano v General-General, Department of Commerce (No 2) [2006] NSWADT 195. In that matter the applicant had contended that the agency's reply to his access application did not identify all documents relevant to his request. O'Connor DCJ, President of the Tribunal, dismissed the respondent's objection to the Tribunal's jurisdiction to hear and determine the question of an agency's sufficiency of search in respect of an FOI application, and set out the approach to be adopted where an applicant contends that an agency has not fully responded to a request for access: [65] Raising of a section 24(2) question: In my view if an applicant contends that there has been a failure to locate relevant documents the Tribunal must decide whether the applicant is raising a s 24(2) question. The situation that arose in Burton underlines the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. The Tribunal may have to ascertain whether there has been a possible failure by the agency to address all documents in its possession. Such a failure can properly be characterised as a refusal of the kind referred to in s 24(2); and is reviewable. [66] Were the agency's submissions in the present case to be accepted, the Tribunal would be deprived of any capacity to go behind a mere statement by the agency that it does not hold any further documents. [67] An applicant is entitled to put such a statement in issue on the basis contemplated by s 24(2). To interpret the Act otherwise would result in a perversity. An agency could issue a token determination relating to some only of the documents identified by the request, and remain silent as to the other documents. Section 28(1)(b) is only concerned with the situation where documents are, as a matter of fact, not held by the agency. [68] I think it clear that the function of s 24(2) in the scheme of the Act is to ensure that an agency fully determines an application, and for such a refusal to be subject to the scrutiny of both internal and external review. [69] An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence. 13 The respondent in that matter appealed to the Appeal Panel, which referred under s118 of the ADT Act the following question for the opinion of the Court of Appeal: Is a notification under s28(1)(b) of the FOI Act 1989 that an agency does not hold a document a determination that the Administrative Decisions Tribunal has jurisdiction to review? 14 The answer provided by the Court of Appeal was as follows: (a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the Freedom of Information Act 1989; (b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24; (c) the jurisdiction of the Tribunal conferred by s 53 of the Freedom of Information Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to ss 17 and 18 of the Freedom of Information Act. 15 Beazley JA held that a statement by an agency that a document does not exist, or that it does not have a document, cannot be construed as a refusal to give access to a document. Her Honour held (at [61]): Section 25 complements s 24. Section 24 governs an agency's responsibility and obligations under the FOI Act after it has received an application. The right to access is a statutorily conferred right and an agency's obligations relating to granting access and the circumstances in which it may refuse access are also statutorily prescribed. Leaving aside the situation where an agency fails to determine an application within 21 days, giving rise to a deemed refusal: s 24(2); an agency is statutorily required to make a determination in relation to the application. There are, relevantly for present purposes, only two available determinations that may be made: to grant access or to refuse access. A determination to refuse access may be made on one or more of the bases specified in s 25. The section, properly construed, does not permit other circumstances to be taken into account. 16 Beazley JA set out the ambit of the review jurisdiction conferred by s53 of the FOI Act in the following terms: [68] … Section 53 provides for the review of a determination . The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in s53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a "determination within the meaning of s24(1). 17 Beazley JA concluded (at [76]) that there is nothing in the FOI Act that confers jurisdiction on the Tribunal to conduct a review of, or enquiry into, the sufficiency of an agency's search for documents. 18 Basten JA held (at [108]): …However, consistently with the scope and objects of the legislation and the expressed intention that the FOI Act shall be applied so as to further those objects and so as to facilitate and encourage the disclosure of information (s 5(3)), s 25 should be seen as an exclusive statement of grounds on which access may be refused. 19 Beazley and Basten JJA, with whom Giles JA agreed, noted that the failure of an agency to consider or adequately consider an application could be the subject of a complaint to the Ombudsman. 20 In the course of his reasons, Basten JA noted that the Commonwealth Freedom of Information Act 1982 is drafted differently. In particular, s24A of the Commonwealth Act specifically confers power on an agency to refuse a request for access to a document if all reasonable steps have been taken to find the document, and the agency is satisfied that the document is in the agency's possession but cannot be found, or does not exist. A decision to refuse access on that basis is reviewable by the Commonwealth Administrative Appeals Tribunal under s55(1)(a), as "a decision refusing to grant access to a document in accordance with a request". 21 The Court of Appeal decision is of course binding on the Tribunal, and is clear. The Tribunal has no jurisdiction to go behind an agency's determination that it has provided access to all the documents it holds that fall within the terms of a request for access. The applicant's reliance on the Federal Court decision in Chu v Telstra Corporation Ltd [2005] FCA 1730 is misplaced, given the differences in drafting between the Commonwealth Act and the New South Wales FOI Act. In this matter the applicant requested access to the "file" referred to in Sergeant Weston's report dated 28 February 2006. The respondent has provided access to what it says is the only document that falls within the scope of that request, namely Senior Sergeant Fitzjohn's fax dated 10 February 2006. The applicant's contention that there must be more documents is not a determination reviewable under s53. In the absence of jurisdiction, the appropriate course is to dismiss the application. ORDER Application for review dismissed.