CITATION: Cianfrano v NSW Ombudsman [2007] NSWADT 273 DIVISION: General Division APPLICANT Robert Cianfrano PARTIES: RESPONDENT NSW Ombudsman FILE NUMBER: 063323 HEARING DATES: On the papers SUBMISSIONS CLOSED: 2 July 2007 DATE OF DECISION: 23 November 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Freedom of Information Act - access to documents - operations of agencies MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Ombudsman Act 1974 Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 CASES CITED: Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111ICAC v McGuirk (2007) NSWSC 147 Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 Vincent Neary v State Rail Authority [1999] NSWADT 107 In person REPRESENTATION: M Adofaci, solicitor ORDERS: The application is dismissed for want of jurisdiction. REASONS FOR DECISION Background 1 The Applicant applied to the Office of the NSW Ombudsman ("the Ombudsman") for access to documents under the Freedom of Information Act 1989 ("the FOI Act"). He sought: Documents as to the Results of the ADT referral to the Ombudsman in, Vincent Neary v State Rail Authority [1999] NSWADT 107 on 15 June 1999. Any reports any findings etc from any other agency and or agent etc. the applicant seeks all internal working administrative documents in relation to any reports or finding of the Ombudsman and or any other agency, as per the referral of the ADT; at paragraph 8 Nonetheless at a directions hearing held on 15 June 1999 I formally referred the issue of the adequacy of the agency's search in response to item (2) of the request to the Ombudsman for investigation. The power of referral is conferred by s 39 of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act'). 2 The Ombudsman identified a number of documents ("the documents") as falling within the scope of the request but access to the documents was refused on the basis that they were documents relating to the exercise of the investigative, complaint handling and reporting functions ("exempt functions") of the Ombudsman. It was asserted that the Ombudsman is exempt from the operation of the FOI Act in relation to such documents by virtue of section 9 and Schedule 2 of the FOI Act. 3 The Applicant applied for an internal review of that determination under section 34 of the FOI Act. The determination was generally affirmed on review, however one document was released. The released document is a letter from the Ombudsman to Judge O'Connor of this Tribunal advising of the outcome of the investigation into the matter that he had referred ("the Neary matter"). 4 The Applicant applied to this Tribunal for external review of the Ombudsman's decision. The parties agreed to have the matter dealt with by the Tribunal on the papers. It was further agreed between the parties that in light of the decision of Simpson J in ICAC v McGuirk (2007) NSWSC 147 the issue for determination is whether the Ombudsman has properly categorised the documents as documents relating to the exempt functions set out in Schedule 2 of the FOI Act. Applicable Legislation 5 Section 24(1)(a) of the FOI Act provides for the determination of applications. Section 53(1) provides that a person who is aggrieved by a determination made under section 24 or 43 may apply to the Tribunal for a review of the determination. Section 53(3)(a)(i) provides that a person is aggrieved by a determination if the determination is to the effect that access to a document is refused. 6 Section 9 of the FOI Act provides: "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." 7 In so far as is relevant, schedule 2 of the FOI Act provides: "SCHEDULE 2 – Exempt bodies and offices (Section 9) … The office of Ombudsman — the complaint handling, investigative and reporting functions of that office." 8 Section 11 of the FOI Act relevantly provides: 11 Documents in certain agencies (1) A document that is held by: … (e) any other prescribed agency, but that has been created by an agency other than the agency that holds the document, shall be taken to be held by the other agency. … 9 Pursuant to clause 8 and schedule 5 of the Freedom of Information Regulation 2005 the Ombudsman is a prescribed agency for the purposes of section 11(1)(e) of the FOI Act. 10 Section 39 of the Tribunal Act provides: 39 Inter-relationship between Tribunal and Ombudsman (1) The President and the Ombudsman may enter into arrangements regarding any of the following: (a) matters that the Tribunal will refer to the Ombudsman where it considers that the matter can be the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 and that it would be more appropriate for the Ombudsman to deal with the matter, (b) matters that the Ombudsman will refer to the Tribunal where the Ombudsman considers that the matter can be the subject of an application for a review to the Tribunal and that it would be more appropriate for the Tribunal to deal with it, (c) matters that are the subject of an application to the Tribunal and that are also the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 , (d) the co-operative exercise of the respective functions of the Tribunal and Ombudsman. (2) The President and the Ombudsman are jointly to cause notice of any arrangements entered into under this section to be published in the Gazette as soon as is practicable after they are entered into. However, a failure to publish any such arrangements does not affect their validity. (3) The Tribunal and the Ombudsman are empowered to exercise their functions in conformity with any relevant arrangements entered into under this section. (4) An application may be made to the Tribunal for a review of a reviewable decision whether or not a complaint has been made to the Ombudsman in relation to the decision. (5) Without limiting subsection (3): (a) the Ombudsman may (despite anything in the Ombudsman Act 1974) decline, discontinue or defer a complaint made under that Act to give effect to an arrangement entered into under this section, and (b) the Ombudsman may (despite any provision of the Ombudsman Act 1974 but in conformity with this Act) disclose any information to the Tribunal duly obtained by the Ombudsman in relation to any matter referred to the Tribunal to give effect to an arrangement entered into under this section, and (c) the Tribunal may dismiss, adjourn or stay proceedings for an application for the review of a reviewable decision to give effect to an arrangement entered into under this section, and (d) the Ombudsman may entertain any complaint under the Ombudsman Act 1974 , or the Tribunal may entertain any application for a review of a reviewable decision, duly made by a person on the basis of a referral under arrangements entered into under this section. The Ombudsman's case 11 The Ombudsman relies upon two affidavits of its Manager Legal, Ms Monique Adofaci. The documents are those documents that are in the possession of the Ombudsman that are not deemed by section 11 to be held by another agency. The documents are annexed to one of Ms Adofaci's affidavits, and were tendered on a confidential basis. 12 The Ombudsman submits that the Tribunal has jurisdiction in this matter to determine whether the documents are properly categorised as relating to the Ombudsman's exempt functions. The Ombudsman further submits that on the evidence before it, the Tribunal it could be satisfied that the documents were properly categorised as documents arising out of the exercise of the Ombudsman's exempt functions. It is apparent from the documents released to the applicant that the Ombudsman commenced an investigation into the conduct of the State Rail Authority. It is submitted that the investigation was pursuant to the investigative powers set out in the Ombudsman Act 1974, and that the documents were created in relation to that investigation. 13 The Ombudsman submits that the effect of section 9 and schedule 2 of the FOI Act is to exempt the complaint handling, investigative and reporting functions of the Ombudsman from the operation of the FOI Act. If the Tribunal is satisfied, as a matter of fact, that each of the documents falls within the Ombudsman's exempt functions, the Tribunal has no further jurisdiction to hear the application in respect of that document. 14 It is submitted that this approach is consistent with the Tribunal's decision in Waites v Director General, Attorney General's Department [2004] NSWADT 109 and in ICAC v McGuirk. 15 In Raethel v Direct General Department of Education and Training [1999] NSWADT 108, the President considered the scope of the exemption of the respondent under Schedule 2 to the FOI Act in respect of "functions relating to the storing of, reporting on or analysis of information with respect to the ranking or assessment of students who have completed the Higher School Certificate for entrance into tertiary institutions". In considering section 9 in the context of determining that the respondent was an exempt agency in respect of an application for certain Universities Admission Index data, the President noted at paragraph 33: 33 The expression "functions relating to" these matters is a broad one. "Functions" can not be reasonably read down in the way suggested by Mr Lancaster to mean only those functions of storage and analysis that relate to listing student scores by schools. Other types of analysis of the information are covered. 16 The President again considered the scope of the exemption in Schedule 2 to the FOI Act - in respect of the prosecuting functions of the office of the Director of Public Prosecutions ("the DPP") - in DF v Director General Attorney General's Department [2002] NSWADT 164. In respect of a document or a routine kind prepared by a Crown Prosecutor for the DPP in accordance with office practice where a particular type of outcome occurs in a criminal trial, the President was satisfied that the advice was reasonably connected with the conduct of prosecuting functions of the DPP. The President noted at paragraph 25: 25 The `functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal). … 17 The Ombudsman submits that these decisions support a broad approach to considering the exemptions in Schedule 2 of the FOI Act, and that matters connected with the Ombudsman's exempt functions would include matters connected with complaint handling, investigative and reporting functions of the Ombudsman. 18 Accordingly, the Ombudsman submits that the Tribunal has no jurisdiction to hear the application if satisfied as a matter of fact that the requested information has been correctly categorised. However, the Ombudsman submits that if the Tribunal is not of the view that the relevant documents come within section 9 and Schedule 2 of the FOI Act, the matter should be remitted to the Ombudsman for further determination, as permitted by Part 3 Division 3 of the Tribunal Act. The Applicant's case 19 The applicant contends that his application was couched in such a way as to avoid falling within the ambit of section 9 and schedule 2 of the FOI Act. Therefore, he argues, as no documents that go to the Ombudsman's exempt functions are being requested, the scope of the exemption in Schedule 2 to the FOI Act is not at issue here. 20 The applicant says that the documents that are the subject of the FOI application are documents created under section 39 of the Tribunal Act. He submits that to instigate the procedure pursuant to section 39 there has to be official documents of a factual nature provided by the Tribunal Registrar to the Ombudsman. Such a document would establish the basis on which the matter was to be considered by the Ombudsman. He further submits that there will be documents from the Ombudsman accepting or rejecting the formal request under section 39. 21 The applicant submits that section 39(2) of the Tribunal Act requires that on acceptance by the Ombudsman there will be a notice published in the Gazette and that there will be a published result to finalize the Tribunal's referral. 22 The applicant contends that the documents creating and formalizing a referral under section 39 of the Tribunal Act are not documents relating to the Ombudsman's complaint handling, investigative and reporting functions and therefore should be released. 23 In support of his submission the applicant refers to the decision of Deputy President Hennessy in Bennett v Vice Chancellor, University of New England [2000] NSWADT 8. He submits that clause 9(1) will not apply if a document can be characterised as consisting merely of factual material. A document that does contain a person's views, which are incidental to the substance of the documents that are primarily factual, can consist of merely factual material. He also refers to the decision of Judicial Member Smith in Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 as supporting the argument that deliberations that have been recorded in the course of a decision making function of an agency may be an internal working document. The action of deliberating involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. Findings 24 In ICAC v McGuirk Simpson J considered the issue of the proper construction and effect of section 9 of the FOI Act. Schedule 2 of the FOI Act provides that ICAC is exempt from the operation of the FOI Act in relation to its corruption prevention, complaint handling, investigative and report functions. I agree with the Ombudsman that the views expressed by Simpson J in ICAC v McGuirk are equally applicable to the proper construction and effect of section 9 of the FOI Act in regard to the Ombudsman. 25 In my view, the correct approach is to first ascertain whether the documents in question are of the kind specified in Schedule 2 to the FOI Act i.e. does each of the documents relate to 'the complaint handling, investigative and reporting functions of that office.' 26 It is apparent from various authorities that have considered the expression "relating to" and similar expressions that these phrases that the words are of the widest import: See for example Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111. 27 The applicant has submitted that his FOI request was framed in such a way as to only apply to documents that are outside the ambit of section 9 and schedule 2 of the FOI Act. While I accept that he may have intended that to be the case, I do not think that the request not that narrow. In my view the Ombudsman has correctly interpreted the request as encompassing documents to include those that came into existence as part of its investigation into the conduct of the State Rail Authority. In my view this is the objective intention to be given to the words 'as to the Results of the ADT referral to the Ombudsman'. This expression seems to me to be wider than a request for documents creating and formalizing a referral under section 39 of the Tribunal Act. 28 I also do not agree with the applicant's interpretation of section 39 of the Tribunal Act or his interpretation of the obligations imposed by that section. I do not agree that the section requires the publication of a notice in the Gazette on acceptance of a referral by the Ombudsman or that there will be a published result to finalize the Tribunal's referral. Section 39 provides for the Tribunal's President and the Ombudsman to enter into arrangements for the Tribunal to refer matters to the Ombudsman and for notice of any arrangements entered into under the section to be published in the Gazette. It does not require publication of the arrangements in relation to specific referrals. 29 I do not consider that the decisions in either Bennett or Tunchon have any application to this matter. Those cases did not consider the provisions of the FOI Act that are under consideration in this matter. 30 As indicated above, the Ombudsman has identified a number of documents as falling within the scope of the FOI request. On the evidence before me I am satisfied as to the adequacy of the search undertaken by the Ombudsman to identify the relevant documents. I am satisfied that the Ombudsman does not hold any other documents that fall within the scope of the FOI request. 31 A copy of each of the documents has been provided to the Tribunal on a confidential basis. I have examined each of the documents and I am satisfied that they all relate to the Ombudsman's complaint handling, investigative or reporting functions. Accordingly I am satisfied that the Ombudsman does not need to make a determination under section 24 in relation to those documents. 32 It follows that the Tribunal has no jurisdiction to hear and determine the application. It must therefore be dismissed. Order The application is dismissed for want of jurisdiction. 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.