Set aside by Appeal : CITATION: Cianfrano v Audit Office of New South Wales [2008] NSWADT 183 DIVISION: General Division APPLICANT Robert Cianfrano PARTIES: RESPONDENT Audit Office of New South Wales FILE NUMBER: 073351 HEARING DATES: 3 June 2008 SUBMISSIONS CLOSED: 3 June 2008 DATE OF DECISION: 24 June 2008 BEFORE: Handley R - Deputy President CATCHWORDS: Access to documents – jurisdiction - adequacy of search MATTER FOR DECISION: Preliminary matter Freedom of Information Act 1989 LEGISLATION CITED : Public Finance and Audit Act 1983 Interpretation Act 1987 Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 CASES CITED: Independent Commission Against Corruption v McGuirk [2007] NSWSC 147 Re Adams & the Tax Agents' Board (1976) 12 ALR 239 Cianfrano v Director General, Department of Commerce and anor [2006] NSWADT 195 APPLICANT C Saggers, agent REPRESENTATION: RESPONDENT R Bhalla, solicitor ORDERS: 1. The Tribunal has jurisdiction to determine whether documents sought by Mr Cianfrano are subject to the exemption claimed by the Respondent pursuant to section 9 and Schedule 2 of the Freedom of Information Act 1989 2. The Tribunal has no jurisdiction to determine the adequacy of the Respondent's search for documents raised by Mr Cianfrano. REASONS FOR DECISION 1 This matter involves an application by Robert Cianfrano for the review of a decision of the Audit Office of New South Wales ('the Respondent') made under the Freedom of Information Act 1989 ('the FOI Act') to refuse access to documents sought by Mr Cianfrano. Background 2 By letter dated 11 September 2007, Mr Cianfrano applied to the Respondent for access to five categories of documents: (1) "All documents and or other material relied upon by the Auditor-General's office and or personnel and or agents etc, going to the supporting and instructing documents going to the Ministerial Holding Corporation etc and or any other government instrumentalities etc. This is in relation to Auditor-General's Report to Parliament 2001 Volume one page 189 Crown Property Portfolio." (2) All documents and other material relied upon or relating to page 665 of the same report. (3) All documents and other material relied upon or relating to the Auditor-General's Report to the NSW Parliament for the year 2002, volume six, page 521, Crown Property Portfolio. (4) Documents and/or other material relied upon by the Auditor-General's office and agents and/or personnel relating to the supporting documents such as Orders and/or Statutory Instruments as to the overriding specified legislative provisions of the Sydney Market Authority Dissolution Act 1997. (5) All documents and/or other material relied upon by the Auditor-General's office and agents and/or personnel relating to the supporting documents such as any Orders and/or Statutory Instruments. 3 On 27 September 2007, AT Whitfield, the Deputy Auditor-General, determined that documents falling into the first three categories were exempt pursuant to section 9 and Schedule 2 of the FOI Act . With regard to categories (4) and (5), Mr Whitfield said: "I have carried out a thorough examination of our working paper files in relation to the Crown Property Portfolio for the years 2000, 2001, and 2002. I can find no documents held by our Office that is the subject of paragraphs 4 and 5 of your FOI application. In accordance with section 28(1)(b) of the FOI Act I therefore determine that our Office holds no documents that are the subject of subject of paragraphs 4 and 5 of your FOI application." 4 By letter dated 12 October 2007, Mr Cianfrano sought an internal review of this decision. On 31 October 2007, the Auditor-General confirmed the decision. On 27 November 2007, Mr Cianfrano filed an application for a review of the internal review decision by the Tribunal. 5 I conducted Planning Meetings with the parties on 12 February and 5 March 2008. On the latter occasion, I gave directions for the filing of submissions and evidence on two preliminary issues: first, whether the first three categories of documents sought are exempt pursuant to section 9 and Schedule 2 of the FOI Act so that the Tribunal is without jurisdiction; and, second, as to credible material in relation to the adequacy of the search made for documents falling into categories (4) and (5). A hearing on these preliminary issues was held on 3 June 2008. 6 On 19 June 2008, the New South Wales Court of Appeal published its decision in Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140. In this decision, which binds the Tribunal, the Court determined that the Tribunal has no jurisdiction to review the adequacy of a respondent's search for documents. The decision is explained below. First Issue - Jurisdiction 7 Section 9 of the FOI Act states: 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 Included in the list of exempt bodies and offices in Schedule 2 is "The office of Auditor-General - investigative, audit and report functions". (1) The Respondent's Submissions 9 The Respondent relied on written submissions filed on 2 May and 28 May 2008, and Mr Bhalla made further oral submissions at the hearing. The Respondent stated that the Audit Office of New South Wales is constituted by section 33A of the Public Finance and Audit Act 1983 ('the PFA Act') and, pursuant to section 33B(1), is effectively a vehicle for the employment of staff necessary for the Auditor-General to perform his/her functions. The first three categories of documents sought by Mr Cianfrano relate to the Auditor-General's reports to Parliament for the years 2001 and 2002. Section 27B(3)(d) of the PFA Act provides that a function of the Auditor-General is "to report to Parliament as required or authorised by law". The Respondent submits that this function is covered by the words "report functions" in Schedule 2 of the FOI Act. 10 The Respondent referred to the decision of Simpson J in Independent Commission Against Corruption v McGuirk [2007] NSWSC 147 ('ICAC v McGuirk') (currently under appeal to the New South Wales Court of Appeal), where, at paragraphs 19 – 20, Her Honour discussed the operation of section 9: "19. ... What s 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 s 9 documents, the FOI Act has no further application to that body or office. 20. I was initially concerned that such a conclusion might mean that a ruling that the documents sought were s 9/Schedule 2 documents was unreviewable. But that is not the case. As I read s 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." 11 The Respondent noted that Her Honour's comment that it would be open to an applicant to challenge a section 9/Schedule 2 determination in the Tribunal is obiter , and submitted that a better view stems from the Tribunal's power to determine its own jurisdiction: Re Adams & the Tax Agents' Board (1976) 12 ALR 239 (per Brennan J at 242). The Respondent submits, that in the circumstances of this case, it is plain from the language of the initial request that the documents sought are exempt by reason of the operation of section 9 since they relate to the Respondent's reporting functions. Thus, the Tribunal is without jurisdiction. 12 With regard to Mr Saggers' oral submissions on the section 9/Schedule 2 exemption issue, Mr Bhalla noted the word 'report' is not defined in the FOI Act. He submitted that the word should be interpreted according to its ordinary meaning. There is no need to refer to extrinsic material. The secrecy provisions in the PFA Act relate specifically to functions under that Act and protect documents upon which reports may be founded. Mr Bhalla noted that the Second Reading Speech quoted by Mr Saggers referred to narrowing the exemption so that it only applies to operational functions and not to administrative functions. (2) The Applicant's Submissions 13 Mr Cianfrano filed written submissions on 3 April 2008, and Mr Saggers made oral submissions on his behalf at the hearing. In his written submissions, there being no definition of "report functions" (Schedule 2) in the FOI Act, Mr Cianfrano relied upon section 38(2)(d) of the PFA Act, which excludes from the secrecy provisions set out therein "a report or communication authorised or required to be made by or under this Act or the prescribed requirements". Mr Cianfrano submitted that the documents sought in categories (1) to (3) fall into this description. 14 Mr Saggers referred to the Second Reading Speech on the FOI (Amendment) Bill on 6 May 1992 (Hansard, Executive Council, pages 3635-3636) by the Hon EP Pickering, who said: "the blanket exemption which now exists in relation to the ICAC, the Director of Public Prosecutions, the Ombudsman and the Auditor-General will be removed and be replaced by a more limited exemption. In future, those bodies will only be exempt in respect of their operational and not their administrative functions." (3) Discussion 15 The first three categories of documents sought by Mr Cianfrano appear to be, essentially, background documents relating to two specific pages of the Auditor-General's Report to Parliament for 2001 and one specific page of the Auditor-General's Report to Parliament for 2002. 16 The Schedule 2 exemption for the office of the Auditor-General includes 'report functions'. I note that pursuant to section 27B of the PFA Act, the Auditor-General's functions include "(d) to report to Parliament as required or authorised by law". The question is, therefore, whether the background documents sought by Mr Cianfrano are covered by the exemption for the Auditor-General's 'report functions'. 17 I note Mr Cianfrano's submissions relating to the application of section 38(2)(d) of the PFA Act. In my view, reference to this provision does not assist in interpreting the phrase 'report functions' in the context of an Annual Report to Parliament. Clearly, such an Annual Report is not itself an exempt document, as schedule 38(2)(d) recognises. Rather, the question is whether the background documents fall into the category of exempt documents. 18 In my view, it is clear from Simpson J's judgment in ICAC v McGuirk, at paragraph 20, that she recognised that section 53 of the FOI Act permits an applicant to challenge in the Tribunal a respondent's categorisation of documents as being of a particular character so that they attract an exemption. While strictly speaking her comments are obiter because, in that case, Mr McGuirk had accepted that the document in question was of a particular character, in my view, her reading of the application of section 53 was correct and in accordance with the objects of the FOI Act. 19 The phrase 'report functions' is not defined in the FOI Act. I agree with the Respondent that it is the ordinary meaning of such a phrase that should first be considered, which, in this context, is that of the function of providing an account or statement (see, for example, the definition of 'report' in The Concise Oxford Dictionary and The Macquarie Concise Dictionary). Performing such a function necessarily entails the preparation or gathering together of relevant background documents to enable the writing of the report. In my view, it is reasonable to interpret the phrase 'report functions' as including such documents. 20 However, when interpreting the provisions of a statute, the application of judicial presumptions should be considered where relevant. In this instance, the application of the judicial presumption noscitur a sociis – that the meaning of a word is to be derived from its context, suggests that the meaning of the word 'report' in the phrase "investigative, audit and report functions" should be qualified by its use in the context of the investigative and audit functions of the office of the Auditor-General. A reading of the PFA Act indicates that those functions include investigating and auditing the financial position of, for example, statutory bodies and Departments, and then reporting to the head of the statutory body or Department, or to the responsible Minister, the Treasurer or Premier, on the outcome of the investigation and audit. 21 The Auditor-General also has an obligation to present an Annual Report to Parliament: section 52A PFA Act. Clearly, information in such an Annual Report would refer to the performance of the functions of the office, including investigative, audit and report functions. But, in my view, it is not the Annual Report that is specifically the focus of the exemption since this report is a public document. Rather it is the more specific reports that follows from the investigative and audit functions of the office, which may, of course, be background documents to a reference to particular activity in the Annual Report. 22 Mr Saggers referred to the Second Reading Speech on the FOI (Amendment) Bill on 6 May 1992. Reference to this document, being extrinsic material, would be for the purpose of confirming the ordinary meaning of a provision or determining its meaning if, for example, the meaning of the provision is ambiguous or obscure: Interpretation Act 1987, section 34(1). I have said that I agree with the Respondent that it is the ordinary meaning of the phrase that should first be considered, which, in this context, is that of the function of providing an account or statement. However, a closer examination of the context in which the phrase is used suggests an ambiguity in so far as the Annual Report to Parliament is a public document. 23 I note that the distinction drawn between operational and administrative functions in the Second Reading Speech and the Minister's statement that "the blanket exemption" will only apply in respect of operational and not administrative functions. In the case of the office of Auditor-General, this indicates that it is documents concerning the investigative, audit and report operational functions which are intended to be the subject of the exemption, together with, in my view, relevant background documents. 24 As I have stated above, it will be for the Tribunal to determine whether, in any particular case, the documents sought fall within the Schedule 2 exemption claimed by the respondent. 25 In conclusion, in my view, the Tribunal has jurisdiction to determine whether particular documents sought by Mr Cianfrano in respect of which the Respondent claims a Schedule 2 exemption should be so categorised as relating to the Respondent's 'report functions'. Second Issue - Adequacy of search The Parties' Submissions 26 In these proceedings, Mr Cianfrano questioned the adequacy of the Respondent's search for documents made pursuant to his FOI application. In particular, Mr Saggers contended that the Deputy Auditor-General, Mr Whitfield, should provide a sworn affidavit along the lines of the statement in his decision dated 27 September 2007, quoted at paragraph 3, above, stating that he had carried out a thorough search and could find no documents falling within categories (4) and (5) of the documents sought. 27 The parties made submissions concerning the effect of the decision of the President of the Tribunal, O'Connor DCJ, in Cianfrano v Director General, Department of Commerce and anor [2006] NSWADT 195. In his decision, at paragraph 69, the President said that where an applicant questions the adequacy of the search conducted by a respondent, the applicant must put some credible material or submissions before the Tribunal which persuades the Tribunal that there is an arguable case that the agency has failed to conduct an adequate search. 28 Mr Saggers submitted that the burden of proof borne by the agency pursuant to section 61 of the FOI Act in justifying a determination, requires an affidavit where the agency makes a determination under section 28(1)(b) that the agency does not hold the documents sought in the application. He referred to the FOI Procedure Manual 1989 which, pursuant to the now repealed section 55, stated that generally the officer who made the determination under review should be called to give evidence in support of the agency's case. 29 Mr Saggers contended that in this case, pursuant to section 61, it would be appropriate for Mr Whifield to provide a simple sworn affidavit along the lines of the statement in his decision dated 27 September 2007, quoted at paragraph 3, above. Ordinarily, this would not require any additional expense. It would then be open to the applicant to decide where to take their application next, for example, to the Ombudsman or ICAC who, unlike the Tribunal, have investigative powers. Thus, the first step is for the agency to provide evidence to justify its section 28(1)(b) determination. It is only when an applicant challenges this, that the applicant should be required to provide some credible evidence to suggest that the search was inadequate. 30 Mr Bhalla submitted that the Tribunal only has jurisdiction under section 53(1) of the FOI Act to review determinations made under section 24 (determination of application for access to documents) or section 43 (determination of application for access to records). It does not have jurisdiction to review a notice given to the applicant pursuant to section 28(1)(b) that the agency does not hold the documents sought. Thus, section 61 does not apply. Section 61 refers to the burden of proof borne by the agency in "any proceedings concerning a determination made under this Act". (2) Discussion 31 As stated above, since the hearing in this matter, the NSW Court of Appeal has published its decision in Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140. In this decision, the Court considered the following question referred to it by the Appeal Panel of the Tribunal: "Is a notification under s 28(1)(b) of the Freedom of Information Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review?" 32 Essentially, the Court determined that the Tribunal has no jurisdiction to review such a decision. The Court summarised its decision as follows: "1. The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the FOI Act. 2. The formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24: [58], [59], [68], [103], [135]. Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (not followed); Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 (not followed); Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443 (not followed). There is nothing in the express words of the FOI Act to that effect, nor can such words be implied in accordance with the principles of statutory construction: [62]-[65], [68], [105]. Jones v Wrotham Park Settled Estates [1980] AC 74; [1974] 1 All ER 286 (considered); Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (considered); Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 (referred to). 3. The jurisdiction of the Tribunal conferred by s 53 of the FOI 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 FOI Act: [68], [69], [71], [76], [133], [135]. Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (not followed); Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 (not followed); Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443 (not followed). 4. Where a party alleges the insufficiency of an agency's search, the appropriate channel of review is provided for in Pt 5 of the FOI Act in Div 1, " Review by the Ombudsman ", or by bringing an application for prerogative relief: [32]-[35], [65], [76], [78], [106], [107], [134]." 33 The Court's determination on this issue is binding on the Tribunal. Thus, the Tribunal has no jurisdiction to consider the adequacy of the Respondent's search for documents in response to Mr Cianfrano's FOI application. 34 I note that a further Planning Meeting with the parties will now be required to determine the future progress of this matter. Orders 1. The Tribunal has jurisdiction to determine whether documents sought by Mr Cianfrano are subject to the exemption claimed by the Respondent pursuant to section 9 and Schedule 2 of the Freedom of Information Act 1989 2. The Tribunal has no jurisdiction to determine the adequacy of the Respondent's search for documents raised by Mr Cianfrano. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.