Wagner -v- Museum of Contemporary Art Limited [1999] NSWADT 114

CITATION: Wagner -v- Museum of Contemporary Art Limited [1999] NSWADT 114

DIVISION: General

APPLICANT: John Wagner

RESPONDENT: Museum of Contemporary Art Limited

FILE NUMBER: 993167

HEARING DATES: 09/13/1999

SUBMISSIONS CLOSED: 09/13/1999

DATE OF DECISION: 13 September 1999

M B Smith - Judicial Member BEFORE:

PRIMARY LEGISLATION: Freedom of Information Act 1989

APPLICATION: Review of decision to refuse access to documents (or part thereof) -

MATTER FOR DECISION: Principal matter

Applicant: In person REPRESENTATION: Respondent: C E Adamson of counsel instructed by Eakin McCaffery Cox

1. The decision under review is affirmed, ORDERS: 2. The application for review is dismissed. 3. The respondent's application for costs is refused.

Ex-tempore 1 The above orders were made at the conclusion of the hearing of this matter. I gave oral reasons which, now slightly embellished, were as follows. 2 This is an application for review brought by Mr John Wagner and filed with the Tribunal on 22 July 1999. It refers to a decision made on 21 July 1999 as the decision which the applicant wishes to have reviewed. The decision refused an application under the Freedom of Information Act 1989 (NSW) ("the Act") for documents of the respondent. 3 Section 16 of the Act gives a right of access to agency documents. It provides: "16 Right of access to agencies' documents (1) A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act." 4 Section 17 sets out the requirements for taking advantage of this right. It provides: "17 Applications for access to agencies' documents An application for access to an agency's document: (a) shall be in writing, and (b) shall specify that it is made under this Act, and (c) shall be accompanied by such application fee as the agency may determine, and (d) shall contain such information as is reasonably necessary to enable the document to be identified, and (e) shall specify an address in Australia to which notices under this Act should be sent, and (f) shall be lodged at an office of the agency, and may request that access to the document be given in a particular form referred to in section 27." 5 From these provisions it is clear that the right of access arises only if there is in fact an "agency" which has received an application under s 17. "Agency" is a special term of art, that is, a legal word in the context of the Act, because it is specially defined in s 6. Unless an application is made to an "agency" as defined, then the person or body who receives it obviously has no obligation to do anything more than refuse it on the ground that they are not an agency. 6 The definition in s 6(1) is: "agency means a Government Department, public authority, local authority or public office, but does not include a body or office that is, by virtue of section 9, exempt from the operation of this Act in relation to all of its functions." 7 This refers to four entities which are themselves specially defined in s 6(1) as follows: " Government Department means a Department within the meaning of the Public Sector Management Act 1988, and includes an Administrative Office within the meaning of that Act. local authority means a council or county council within the meaning of the Local Government Act 1993. public authority means a body that is a public authority by virtue of section 7. public office means an office that is a public office by virtue of section 8." 8 In the present matter, Mr Wagner prepared a document which was headed "Request for Inspection Access of Non Personal Information under the Freedom of Information (General) Regulation 1995 and Freedom of Information Act 1989 Friday, 9 July 1999." It stated that it was: "SUBMITTED TO: Secretariat of the Museum of Contemporary Art Limited Attn: John Cox". There was then descriptions of Mr Cox, including his being "MCA company secretary" and "MCA company general counsel". 9 It is not disputed that this document was received by Mr Cox acting as an agent or officer of the Museum of Contemporary Act Limited. There is no doubt that Mr Wagner attempted to make an application under the Act, and that it concerned documents of the body which is the present respondent. 10 On 16 July 1999 Mr Cox, describing himself as "company secretary", responded to the document by advising the applicant that the respondent was "not a public authority within the meaning of the Act, it does not, therefore, fall within the purview of the subject legislation." He returned the application fee. 11 On 21 July it would appear that the applicant sought a review of that decision, which was responded to by Mr Cox on the same day. It is this letter which the applicant has identified as containing the decision he wishes to have reviewed by the Tribunal. 12 The letter said "As indicated to you earlier, your application for access to documents under the Freedom of Information Act (NSW) is invalid. The Museum of Contemporary Act Limited is not subject to the Act. It is obvious, therefore, that your request for review is also without any jurisdiction and will not be dealt with." 13 No issue has been taken as to whether this letter did or didn't constitute a decision on internal review of a decision under the Act. In view of my conclusion on the substantive question, this jurisdictional issue does not need to be addressed. However, I comment that it appears appropriate for such a determination in response to a request under the Act to be treated as a decision made under the Act which is subject to the review and appeal provisions. 14 The application for review therefore raises before me the question whether Mr Cox was correct in thinking that the respondent was not an "agency" within the meaning of the Act. During the hearing I took Mr Wagner to the definitions relevant to the four categories referred to in the definition of "agency", and endeavoured to obtain his identification of which of the sub-definitions he relied upon. However, he was unable to assist me, so that I shall need to address them separately. 15 In my opinion there is no conceivable argument that the respondent is a "government department" or a "local authority". As to whether it is a "public authority", it is necessary to turn to the provisions of s 7, which provide: "7 Public authorities (1) In this Act, a reference to a public authority is a reference to: (a) a body (whether incorporated or unincorporated) established for a public purpose by or under the provisions of a legislative instrument, other than: