McGuirk v University of New South Wales [2006] NSWADT 81

Set aside by Appeal :

CITATION: McGuirk v University of New South Wales [2006] NSWADT 81

DIVISION: General Division

APPLICANT PARTIES: Gerard Michael McGuirk RESPONDENT University of New South Wales

FILE NUMBER: 053268

HEARING DATES: 16/11/05

SUBMISSIONS CLOSED: 12/19/2005

DATE OF DECISION: 03/20/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: access to documents - advance deposit and fees and charges - Freedom of Information Act - access to documents - advance deposit and fees and charges

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1989

CASES CITED: R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439 Thompson v Randwick Municipal Council (1950) 81 CLR 87; 50 SR (NSW) 248 HCA

APPLICANT In person REPRESENTATION: RESPONDENT P Singleton, barrister

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 Mr McGuirk has applied to the University of New South Wales for access to certain documents under the Freedom of Information Act 1989 ("the FOI Act"). His application was in the following form: 1. Copy of the letter of transmission from the St James Ethics Centre to UNSW of December 2004 for the copy of the St James Ethics Centre report submitted to the Chancellor in December 2004. 2. Copies of all minutes of the UNSW Council and of the UNSW Chancellor's committee relating to the commissioning of the St James Ethics Centre to prepare a report on the handling by UNSW management and related matters of the allegations made against Professor Bruce Hall by Dr Clara He, Dr Juchuan Chen, Ms Hong Ha and Dr Mark Penny. 3. Copy of the position descriptions/statement of duties for the positions occupied by the following senior officers of UNSW as at January 2002: Professor Bruce Hall Professor Bruce Dowton 4. Copy of the position descriptions/statement of duties for the positions occupied by the following senior officers of UNSW as at January 2003: Professor Bruce Hall Professor Stephen Deane Professor Bruce Dowton Note: If the position descriptions for the positions held by Professors Hall and Dowton did not change between January 2002 and January 2003, clearly one copy of the relevant position descriptions will serve to satisfy the requests under 3 and 4 above. 5. Copies of any instructions to the UNSW library, and in particular the UNSW library Archive Services, in regard to prohibitions on the photocopying of the Hall documents. 6. Copies of any instructions to the UNSW webmaster or other persons responsible for the management and maintenance of the UNSW website in regard to disabling the print functionality on the "pdf" files of the Hall documents which were posted on the UNSW website. 2 The University's Freedom of Information Officer advised Mr McGuirk that the scope and number of documents to be considered in relation to his application were such that the costs to the University in dealing with the application would exceed the amount of his $30 application fee and that the University required the payment of an advance deposit in accordance with section 21 of the FOI Act. She indicated that the sum required was $510 and set out the basis on which the deposit amount was calculated. 3 Mr McGuirk responded that he considered these charges to be excessive, and he also asserted that the University was attempting to avoid its obligations under the FOI Act and was using the provisions of section 21 to subvert the fundamental purpose of the Act. He also indicated his intention to exercise his rights of appeal, and his view that the total cost to the University which would result from his exercising those rights would be many times the total of the advance deposits requested by the University. He did not pay the advance deposit as requested and the University subsequently decided to refuse to continue to deal with the application. 4 Mr McGuirk sought an internal review of the determination to refuse to continue to deal with his application. That application was successful to the extent that the reviewer reduced the amount of the advance deposit required to $382.50. Mr McGuirk did not pay the advance deposit within the specified time period of 14 days and the University subsequently decided to refuse to continue to deal with the application. 5 Mr McGuirk filed an application with the Tribunal for an external review of the determination by the University to refuse to continue to deal with his application unless he paid an advance deposit of $382.50. In his application he asserted that the University had improperly used the power to request an advance deposit to subvert the intent of the FOI Act. 6 The University denies Mr McGuirk's assertions and contends that the deposit sought is a conservative estimate of the cost of determining Mr McGuirk's application. 7 Pursuant to section 61 of the FOI Act, the burden of establishing that the determination is justified lies on the University. The University asserts that it is entitled to request an advanced deposit by virtue of section 21 of the FOI Act. That section relevantly states: "21 Agencies may require advance deposits (1) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advance deposit, as the agency may determine." 8 Section 22 of the FOI Act states: 22 Agencies may refuse to continue to deal with applications if advance deposit not paid (3) An agency may refuse to continue dealing with an application if: (a) it has requested payment of an advance deposit in relation to the application, and (b) payment of the deposit has not been made within the period of time specified in the request. (4) If an agency refuses to continue dealing with an application under subsection (3): (a) it shall refund to the applicant such part of the advance deposits paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application, and (b) it may retain the remainder of those deposits. (5) An agency that refuses to continue to deal with an application under this section must forthwith cause written notice of that fact to be given to the applicant. (6) A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly. 9 The University relies on the evidence of Mr Michael Milne, an Executive Officer to the University's Deputy Vice-Chancellor (Academic) and Registrar. Mr Milne provided two statements in which he set out the approach that the University would need to undertake to determine Mr McGuirk's application. He stated that he considers that the estimated time of 12 3/4 hours is a conservative statement of the time that would be needed to determine the application, having regard to the size of the FOI application and the relatively intensive nature of the process of document evaluation. He also expressed the view that in practice, the process will take longer than estimated because an administrator cannot work for that amount of time continuously exclusively on this matter. He concluded that he considers that the request for an advance deposit is reasonable having regard to the diversion of resources that it imposes. 10 Mr Singleton submits that in the absence of any evidence to contradict that given by Mr Milne, the evidence should be accepted. He concedes that in determining this matter the Tribunal is required to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. Section 64 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") requires that the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. 11 It is common ground that the FOI Procedure Manual Third Edition 1994 published by the NSW Premier's Department ("the FOI Procedure Manual") was in force at the time the reviewable decision was made. In relation to its use it states: "How to use the Manual The Manual aims to assist agency and Ministerial staff in their interpretation of the Act and to take them through the steps for handling FOI requests and related matters including appeals. Although users will need to refer to the Act itself, the manual is designed so that there is no need to constantly refer to the Act. The word [policy] in a heading, at the end of a sentence or a paragraph is used to denote a practice or procedure, determined by the, NSW Premier's Department, which is to be observed by agencies. Agencies may wish to supplement certain sections of the Manual to cover particular situations or issues which arise frequently in their agency e.g. the Department of School Education may wish to refer specifically to procedures for pupil records. This is acceptable so long as the extra information complies with the Act and does not contradict procedures in the Manual." 12 In regard to advance deposits the FOI Procedure Manual states at 2.14.6: "2.14.6. Advance deposits Advance deposits of amounts up to but not exceeding the estimated total cost of processing an application may be required. The Act allows the agency or Minister to nominate the amount of any such deposit. It is expected, however, that advance deposits will be used only with large scale requests involving significant charges. [policy] The time between the request for an advance deposit and the receipt of the money is not counted in the processing time limits for instance, the 21 days to handle an application for access to records. If the applicant does not pay a requested advance deposit, the agency or Minister can refuse to deal further with the application. Such a refusal is subject to a right of review and appeal by the applicant." 13 Mr Singleton submits that the FOI Procedure Manual can be interpreted as policy for the purposes of section 64 of the ADT Act but that it is to be seen as a guideline and is not binding. He contends that it cannot be binding, as it would be inconsistent with the FO1 Act. In any event, he says that Mr McGuirk's application should be seen as a large scale request. Even if it is not seen to be a large scale request, Mr Singleton submits that it is appropriate to require an advance deposit. He says that the present application is part of a series of applications that Mr McGuirk has made and that these have required an enormous amount of work on the part of the University. The University relies on the evidence of Mr Milne as supporting this submission. He further submits that the public interest requires that the University recoup as much of this expenditure as it can and that this outweighs any public interest in accessing these documents. He says that Mr McGuirk must satisfy the evidentiary onus of showing that there is a public interest in accessing these documents and he has not done so. 14 Mr McGuirk contends that the default position for applications for access to documents held by agencies made under the FO1 Act is that there is a legally enforceable right to such documents. He asserts that section 21 confers a discretion on the University and that discretions conferred by statutes on public officials must be exercised for proper purposes and in good faith: Thompson v Randwick Municipal Council (1950) 81 CLR 87; 50 SR (NSW) 248 HCA and R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439. 15 He says that the amount of the deposit that was requested is unreasonable. In exercising its discretion, the University is required to take into account not only the FOI Act but also the relevant policies and guidelines. These relevant policies and guidelines include the FOI Procedure Manual and the FOI Policies and Guidelines published by the NSW Ombudsman. 16 The Freedom of Information (Fees and Charges) Order 1989 sets out the fees and charges to be applied to all FOI applications. No fees and charges other than those set out in the Order may be levied for FOI applications. Paragraph 2.14 of the FOI Procedure Manual refers to the charging of a fee at the rate of $30 per hour subject to a 50% reduction for financial hardship and public interest reasons. 17 Mr McGuirk contends that his FOI application was not a "large scale request involving significant charges" in the terms of the FOI Procedure Manual, and the University's requests for such deposits in this case was in breach of a policy laid down by the NSW Premier's Department. However, he submits that even if this argument is not accepted, there are strong public interest reasons why the fee should be reduced. Mr McGuirk contends that it is in the public interest for the University's conduct to be made known to the people of the State of New South Wales. He provided a separate argument in relation to each document to support this submission. In essence, the arguments presented are that there is a public interest in what he refers to as the 'Bruce Hall affair' and in the context of this matter, in analysing the conduct of the University in preventing access to documents relating to that issue by prohibiting the photocopying or printing of documents, the conduct of the University in relation to its dealings with the St James Ethics Centre, and an 'apparent conflict' between statements made by Mr Neil Morris and Professor Hume. 18 Mr McGuirk further asserts that it is not open to an agency to use advance deposits for the purposes of frustrating the objects of the FOI Act. He referred to section 5(3) of the FOI Act which states: (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. 19 He says that of the University has acted in clear breach of this provision. Section 21 of the FOI Act provides a discretion and that must be exercised in a manner that facilitates the disclosure of information at 'the lowest reasonable cost'. He says that in order to do so at the lowest reasonable cost the University must consider the cost to the wider community in defending an application to the Tribunal. It must consider the utility of doing so and the overall cost to the public. Finding: 20 In determining this matter the Tribunal is required to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. 21 I agree that the FOI Procedure Manual is a policy that must be taken into account pursuant to section 64 of the ADT Act, however I also agree with Mr Singleton's submission that it is a guideline. It cannot be seen to remove any discretion that an agency has under section 21 of the FOI Act. 22 The evidence given by Mr Milne sets out what the University considers to be relevant matters to be considered in exercising that discretion. Mr Milne's evidence is not contradicted and is relevant to these proceedings. This evidence clearly establishes that Mr McGuirk's application is one that requires a significant amount of work on the part of the University. It also shows that it is likely that the total cost to the University would exceed the amount that it is permitted to charge. I agree with Mr Singleton's submission that in the absence of evidence to contradict it I should accept the evidence given by Mr Milne in regard to the likely cost to the University of determining Mr McGuirk's application. 23 I am satisfied that it is therefore necessary to consider whether there are any reasons that would prevent the University seeking an advance deposit. I am not persuaded that there is a basis on which the University should be prevented from recovering some of the cost that it is likely to incur should the application be determined. On the evidence before me I am satisfied that the University was justified in requesting an advance deposit. 24 Mr McGuirk has argued that the amount of any advance deposit requested should be reduced in accordance with paragraph 2.14 of the FOI Procedure Manual. He contends that there are public interest reasons that would warrant a 50% reduction in the charge. 25 The term "public interest" is not defined in the FOI Act. However, the term has been considered in numerous decisions in this Tribunal and other forums. To my knowledge the term has not been considered for the purposes of whether a reduction in a charge should apply. The "public interest" is an inherently broad concept, most often used as a balance against private or individual interest. In my view, for Mr McGuirk to succeed in his argument that the public interest justifies a reduction in the charge in this matter there must be a public interest in the release of the particular documents that are the subject of the application. This is to be distinguished from a broader public interest in the proper administration of public institutions. 26 In this matter the documents that Mr McGuirk has requested do not of themselves have that quality. Any public interest that might attach to them would necessarily be a consequence of inferences that might or might not be able to be drawn from them. I do not agree with Mr McGuirk's contention that any general public interest in the University's conduct being made known to the people of the State of New South Wales is sufficient for this purpose. That being the case, I am not satisfied that the 50% reduction in the charge is warranted. 27 I note that Mr McGuirk has also asserted that the University is attempting to use a request for payment of an advance deposit for the purposes of frustrating the objects of the FOI Act. On the evidence before me I am not satisfied that this is the case. I do not agree that section 5(3) of the FOI Act requires a consideration of the ultimate cost that might result from a determination even if an applicant indicates that they intend to seek external review if the determination is unfavourable to them. In my view such a consideration would be irrelevant to the determination to be made. It could not be used as a basis for determining that the amount of any advance deposit should be increased and similarly could not be used as a basis for determining that the amount of any advance deposit should be decreased. 28 I also disagree with Mr McGuirk's assertion that the University cannot take account of other applications that he has made under the FOI Act. In my view this is clearly a relevant consideration in determining how to exercise the discretion given under section 21 of the FOI Act. 29 It follows, in my view, that University is entitled to request the payment of an advance deposit and that the amount sought is not excessive. Accordingly, the determination by the University to refuse to continue to deal with Mr McGuirk's application unless he paid an advance deposit was the correct and preferable decision and therefore it should be affirmed. Orders: The decision under review is affirmed.