Cianfrano v Director General, NSW Department of Commerce [2005] NSWADT 283

CITATION: Cianfrano v Director General, NSW Department of Commerce [2005] NSWADT 283 DIVISION: General Division APPLICANT PARTIES: Robert Cianfrano RESPONDENT Director-General, Department of Commerce FILE NUMBER: 053067 HEARING DATES: 6/06/2005 - 7/06/2005 SUBMISSIONS CLOSED: 06/07/2005 DATE OF DECISION: 12/05/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: Dismissal of application - frivolous vexatious misconceived or lacking in substance MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Cianfrano v NSW Department of Commerce [2004] NSWADT 134 CASES CITED: Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 Z v University of A and ors (No 9) [2005] NSWADT 25 APPLICANT REPRESENTATION: In person RESPONDENT M Allars of counsel instructed by G Mahoney, solicitor, Crown Solicitor's Office ORDERS: 1. Application for review dismissed; 2. Respondent's application for costs dismissed.

REASONS FOR DECISION 1 This decision deals with the second of two applications for review, heard together, as they concern related determinations of the respondent agency made under the Freedom of Information Act 1989 (FOI Act or the Act) (file numbers 043884 and 053067). 2 The agency has formally refused to process an access application lodged by the applicant on 6 January 2005, because the applicant has failed to pay the charge requested for processing the application (original decision, 14 January 2005; application for internal review, 17 January 2005; internal review decision, 7 February 2005). 3 Section 21 permits agencies to charge advance deposits. Such a determination is reviewable by the Tribunal: s 53(1) and (3)(a)(v). The charge levied was $135, being half of the estimated processing time, 9 hours at $30. The determination was affirmed on internal review. Ex A in these proceedings sets out the Department's record of dealings with this matter. 4 By application for review filed 25 February 2005 the applicant seeks review of the agency's determination as to charges. 5 The agency has applied for these proceedings to be summarily dismissed on the basis that they are frivolous or vexatious. The Administrative Decisions Tribunal Act 1997 (the Tribunal Act) empowers the Tribunal to 'dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance': s 73(5)(h). 6 The agency also applies for an award of costs under s 88, which provides relevantly: ' 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.' 7 The terms of the request lodged 6 January 2005 were to be provided with: 'All internal and administrative documentation and all communications concerning the services of Max Bowen [private address stated] and related terms of reference for the provision of services regarding the sale and transfer of the Flemington Markets site. The documents are to include the following, 1 All phone records, 2 All file notes, 3 All diary notes, 4 All fax transmission records, 5 All memos records, 6 All email records, 7 And all bits of paper, etc; The documents are also to include all internal administrative working documents and all factual and statistical administrative material in relation to the services of Max Bowen [private address stated] and related terms of reference for the provision of services regarding the sale and transfer of the Flemington Markets site. The documents are to include any other agents and or agencies etc. involved with the services of Max Bowen [private address stated] in regards to the transaction and the transfer of the site (Flemington Markets).' 8 The agency's contention is that the underlying access application, to which the advance deposit determination was the first response, is manifestly a duplication of a previous request. It is said that the documents relating to Max Bowen are merely a specific category of the request that is the subject of proceedings no. 043884. That request (the first request) was for: 'All documents of the Department of Commerce, NSW or Department of Public Works and Services and all other Agencies and or agents etc, in relation to all internal working documents and all factual and statistical material relating to, of the Land Know [sic] as Flemington Markets at time of Sale to a private company known as Sydney Markets Limited. This to include any preparation and finalization of the lease or assets and business interests of the Sydney Market Authority and the entity of Sydney Markets Limited.' 9 It can be seen that what is involved in responding to this objection is a comparison of the terms of the later request, and the terms of the earlier request. In this instance the first request is global in character, whereas the second request is specific to the role of a particular consultant. 10 On 23 November 2004 the applicant informed the agency that it was his intention to submit a request in relation to the services of Max Bowen and related terms of reference for provision of services regarding the sale and transfer of Flemington Markets site. By letter dated 24 December 2004 Mr Havenstein replied that the information he was seeking had been captured by a previous request made in September 2003 and finally determined in November 2004. Mr Havenstein refused to take any further action on the request. Against that background the applicant filed his access request of 6 January 2005, and the request was then dealt with, with the decision to require an advance deposit being made. 11 The history of the agency's dealing with the first request is found in Ex C in matter no 043384. The agency expended considerable effort and resources in dealing with that request (see its letter of 25 October 2004). I acknowledge that the charges levied by that letter were later revised downwards, but I regard the hours estimate in that letter as likely to be reflective of the amount of work involved in processing high level documentation of some complexity, the focus of that request. 12 The applicant's view is that is he is doing no more than pursuing the public interest. In my view the request now lodged is a sub-set of the first request even though it is particularised in a way not found in the first request. 13 I accept Mr Havenstein's statement as recorded in the letter. I had the opportunity during the course of the planning meetings and in the proceedings conducted as part of the same hearing that dealt with these proceedings, of hearing evidence and submissions from Havenstein. In my view, his assessment can be accepted as reliable. 14 In my view the agency has made out its case for having the proceedings summarily dismissed. The request now made is a sub-set of the previous request. In my view where an agency actions a global request of a magnitude like the present first request, it is entitled to be protected against further requests that are sub-sets of that request. 15 Clearly there is a possibility in dealing with a global request of magnitude that an applicant will not find identified in the documents produced a particular stream or sub-set of material that he or she is chasing. The applicant's reply is that he is entitled to 're-FOI'. As I understood that submission, he is saying that he is at liberty to make the same request as often as he likes. More specifically, he says that he is entitled to 'pin-point'. I understand that to mean lodging a more specific and detailed request going to matters covered by the global request. He also places some significance on the fact that the new request has been made two years later (more precisely 16 months later). 16 The legislation depends, for its sensible operation, on a degree of co-operation and interchange between the parties. Section 19(1) encourages agencies to assist applicants if their application does not contain enough information to enable documents affected to be identified. In my view it is a corollary of this proposition that applicants should indicate at an early juncture if some aspect of the response does not, in their view, reflect their request. In this instance, if the applicant had concerns about the adequacy of the disclosure of material relating to Mr Bowen's services, he should have raised that concern in response to the original determination of the first request. 17 I accept that there will be cases where a request that is in similar or the same terms to a previous request nonetheless is not the same request. Time will have moved on, and the terms of the request may capture documents that did not exist at the time of the original request. To that extent it is a fresh request. 18 This situation is not unlike in my view the position that arose in Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 (set aside on procedural fairness grounds by the Appeal Panel). In that case the agency asserted from the outset that it had fully responded to the access request, and there was no negative decision of the kind that attracts the Tribunal's jurisdiction. There I said: '39 If a citizen continues to press an application in circumstances where it is reasonable to conclude that the applicant had enough understanding of the Act as to be likely to appreciate that the application was an empty one, then some sanction should be administered by the Tribunal. In the Tribunal's opinion, this applicant has engaged in distorted logic in an attempt to demonstrate that the REVS system, in particular, is some kind of repository of 'personal affairs' information or, more broadly, 'personal information'. The proposition is, in the Tribunal's view, simply unsustainable; and the Tribunal believes that the applicant is of sufficient sophistication to appreciate that.' 19 In this instance, I am satisfied that the request was no more than a refinement of an aspect of an earlier request to which substantial attention and resources had been devoted by the agency. The request involves a similar problem to that mentioned in Miriani: the applicant should, in my view, have accepted that the substance of the second request had been fully addressed by the agency in its reply to the first request, and there was nothing to add. 20 Though the agency did subsequently proceed to action the request, it remains entitled to raise its concern now that the matter has reached the Tribunal. 21 As to the question of costs, the ruling just made in my view provides a 'special circumstance' of the kind contemplated by s 88(1). I accept that the agency has been put to some additional expense in responding to the request before the Tribunal, at this point in relation to the preliminary matter of an advance deposit. This is not the kind of case where it might be said that the applicant 'did not fully grasp the complexities of many of the legal issues in the proceedings': Z v University of A and ors (No 9) [2005] NSWADT 25 (17 February 2005) at [17]. This applicant is, in my view, an applicant of sophistication in FOI matters. 22 However, I am of the view that no order should be made. My primary reason is that the applicant received no warning of that application. He was on notice from the planning meeting held on 5 April 2005 that the agency's view was that it had already responded to the request; and that this objection would be raised. There was no mention at that time of a possible application for costs. This matter was listed along with the major matter, matter no 043884, in the one hearing. While there was some additional legal effort needed to deal with this matter, it was minor in the overall scale of the two day hearing. Order 1. Application for review dismissed. 2. Respondent's application for costs dismissed.