Appeal Panel - Internal CITATION: GA v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 38 APPELLANT PARTIES: GA RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 049047 HEARING DATES: 17/02/2005 SUBMISSIONS CLOSED: 02/17/2005 DATE OF DECISION: 07/21/2005 GA v Commissioner of Police, New South Wales Police [2004] NSWADT 254 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Mapperson K - Non Judicial Member CATCHWORDS: jurisdiction - jurisdiction - lack of internal review - effect of MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 043330 DATE OF DECISION UNDER APPEAL: 11/05/2004 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 GA v Commissioner of Police, NSW Police [2004] NSWADT 254 Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Woodside & anor -v- Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 Enfield City Council v Development Assessment Commission (1994) 82 LGERA 439 CASES CITED: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 R v Blakely; ex p Assocn of Architects, Engineers, Surveyors & Draughtsmen of Australia (1950) 82 CLR 54 JD v Director General, NSW Department of Health [2004] NSWADT 7 Y v Director-General, Department of Education and Training [2001] NSWADT 149 BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 APPLICANT REPRESENTATION: In person RESPONDENT D Shepherd, solicitor ORDERS: 1. The Tribunal's decision that it is without jurisdiction is set aside; 2. The application for review of conduct is remitted to the Tribunal for determination in accordance with the Directions contained in para [32]. REASONS FOR DECISION 1 On 7 October 2004 the appellant, GA, lodged an application with the Tribunal, purporting to be an application for the review of the conduct of a public sector agency (the NSW Police Service) made pursuant to s 55 of the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The respondent, the Commissioner of Police, moved for summary dismissal of the application on the ground that it had not satisfied a mandatory pre-condition to jurisdiction, namely that there had been no competent application for internal review by GA. GA's position was that he had filed a competent application for internal review on 9 September 2004, and the Commissioner had wrongly refused to treat it as such, by letter dated 10 September 2004. The Tribunal found for the Commissioner and dismissed the application as an essential pre-condition to its jurisdiction – the making of an application for internal review (see s 55(1)) – had not been fulfilled: see GA v Commissioner of Police, NSW Police [2004] NSWADT 254 (5 November 2004). 2 The provisions of immediate significance to the Tribunal's ruling are ss 52, 53 and 55 which provide, relevantly: ' 52 Application of Part (1) This Part applies to the following conduct: (a) the contravention by a public sector agency of an information protection principle that applies to the agency, (b) the contravention by a public sector agency of a privacy code of practice that applies to the agency, (c) the disclosure by a public sector agency of personal information kept in a public register. (2) A reference in this Part to conduct includes a reference to alleged conduct.' '53 Internal review by public sector agencies (1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. (2) The review is to be undertaken by the public sector agency concerned. (3) An application for such a review must: (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, and (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and (e) comply with such other requirements as may be prescribed by the regulations. (4) … (5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by: (a) the applicant, and (b) the Privacy Commissioner. (6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned. (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following: (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. (7A) … (8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of: (a) the findings of the review (and the reasons for those findings), and (b) the action proposed to be taken by the agency (and the reasons for taking that action), and (c) the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal.' '55 Review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with: (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.' 3 GA has been a persistent applicant, under both the Freedom of Information Act 1989 and the Privacy Act, to two agencies – the Police Service and the Department of Education and Training. The applications have usually had as their origins events affecting GA's children and the girlfriend of one of them. Several of these applications have been the subject of proceedings in the Tribunal. As reflected in the remarks that passed between GA and Mr Shepherd from the Police Service, who appeared for the Commissioner at the hearing of the appeal, the relationship between the parties is one marked by acrimony and hostility on both sides. 4 The Tribunal's finding was based on an examination of the correspondence that passed between GA and the agency on 9 and 10 September 2004. As explained by the Tribunal in its reasons for decision, GA did not press his application for review in relation to paragraph 2 of his letter of 9 September 2004. He pressed for his application to be considered, as it related to paragraph 3 of the letter. We have italicised paragraph 3. The entire text of the correspondence follows. APPLICATION 'Dear Ms Hamilton, I request an internal review under Section 53 of the Privacy & Personal Information Protection Act 1998. I make this request on behalf of The [GA] Family. Namely, [five names given] including 'N' and myself. NSW Police has breached [N's] privacy. [N] did not become aware of this breach until 1 September 2004 when I received a copy of an entry dated 10 November 2000 (attached) from Page 15 of Constable Holdem's notebook. While investigating complaint CIS/01003479, NSW Police breached our privacy by providing a copy of the complaint report to Principal [name] of [name] High School. I do not limit the scope of this request in any way whatsoever. I did not become aware of this conduct until I received a copy of an internal review report on 6 May 2004 in response to a summons issued by the Administrative Decisions Tribunal on 14 April 2004. The report is dated 27 September 2002 and was prepared, along with attachments, by Ms Lois Diamond of the NSW Department of Education and Training. I also advise that under the PPIP Act the onus lies entirely upon you to identify and fully address all breaches associated with this conduct. I do not claim to exhaustively identify them here. (See collection decision handed down 11 June 2003 in GA & Ors v D.E.T. File 023250). Yours sincerely [GA]' REPLY 'Dear [GA], Please be advised that the attached application for Internal Review has been declined. Until such time as you specifically detail the personal information to which you claim is the subject of the internal review application, the NSW Police cannot conduct an investigation into this matter. In its present form the application for review is too broad. Please be advised that you will need to specify: 1. The personal information which you claim is the subject of the Internal Review 2. The circumstances surrounding the breach of the PPIP Act 3. To whom you claim each breach of the PPIP Act relates 4. Copies of any documents/investigations containing personal information that you allege were disclosed by the NSW Police and the persons (if known) who disclosed such documents 5. The date of the alleged breach of the PPIP Act Until such time as the application species [sic] sufficient particulars to enable an investigation to be conducted, your application is refused. I have forwarded a copy of this letter to Privacy NSW for their information. Should you require any further information I can be contacted on [phone number]. Yours faithfully, Marilyn Hamilton Co-ordinator – Privacy Unit' 5 In reaching its conclusion, the Tribunal said: '7 In my view, an applicant's entitlement to an internal review (and ultimately an external review) depends on that person identifying the conduct about which they are aggrieved in sufficient detail to allow the agency to determine whether it constitutes a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register. If the application does not identify the conduct with that level of particularity, then the agency should initially request further information from the applicant. If an applicant does not provide that information within a reasonable time, then the agency will be justified in declining to review the conduct. 8 GA identified the conduct about which he was aggrieved in the following way: While investigating complaint CIS/01003479, NSW Police breached our privacy by providing a copy of the complaint report to Principal (name deleted) at (name deleted) High School. I do not limit the scope of this request in any way whatsoever. 9 Scope of request unlimited . There are two components to this request: the identification of a transaction between a police officer and the Principal of a High School and a general statement that he is not limiting the scope of his request. Dealing firstly with the second component, it is not clear what GA meant by the assertion that he "does not limit the scope of this request in any way whatsoever". He could mean that he is aggrieved by other conduct that he has not identified. If that is the case, then he is not entitled to an internal review of that conduct because the conduct has not been sufficiently identified. Alternatively GA may have meant that he does not limit the ways in which the conduct which he has identified could be a breach of the PPIP Act. If that is what he meant, then the comment is irrelevant. He is not obliged to identify any specific breach of the PPIP Act. Whatever GA meant by this general statement, it does not trigger his entitlement to an internal review. 10 Providing a copy of the complaint report to the Principal. In relation to the first component of GA's request [in paragraph 3], NSW Police were apparently not able to review that conduct until they knew the identity of the person who provided the report and the date on which the report was provided. That is why they asked GA to provide those particulars in their letter of 10 September. GA did not respond to that letter as he believes his application was wrongly declined. We [sic] find on the basis of the content of the correspondence, that NSW Police were unable to identify the conduct in sufficient detail to allow it to determine whether it constitutes a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register. Since GA has not identified the conduct about which he is aggrieved in sufficient detail to allow the agency to determine whether there has been a breach of the PPIP Act, he is not entitled to an internal review of that conduct. The agency has requested further particulars but GA has not provided any further information. In those circumstances, the first pre-condition to the Tribunal's jurisdiction (that GA has made an application for internal review under s 53) has not been met.' 6 Question of Law . The right of appeal is confined to questions of law, unless the Appeal Panel gives leave for the appeal to extend to the merits: Administrative Decisions Tribunal Act 1997 , ss 112, 113. Appeal Panels of the Tribunal have consistently held that the discretion to extend to the merits should ordinarily not be exercised if the appellant fails to demonstrate a material error of law warranting interference with the decision under appeal. 7 For the Commissioner, Mr Shepherd submitted that no question of law was raised by the proceedings as the findings that the Tribunal made in reaching the above conclusion were ones of fact; and findings of fact can not give rise to the questions of law. 8 Ordinarily findings of fact do not give rise to questions of law. Challenges to the fact-finding process based on how the trier of fact evaluates the evidence, where there is evidence that might support the finding made, are not reviewable on a question of law basis: see, e.g. Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 at 155 per Glass JA; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ. A Finding of fact will be reversible on error of law grounds if there is no logically probative evidence to support it; and a finding will be reversible if the reasons for decision do not deal adequately with critical evidence which, had it been accepted, would have rendered the finding uncertain or unlikely. (See generally, Woodside & anor -v- Director General, Department of Community Services (CSD) [2000] NSWADTAP 8.) 9 Here however the issue is whether the Tribunal correctly declined to exercise its jurisdiction. It is clear, we consider, that the Tribunal saw itself as being involved in a fact-finding inquiry going to jurisdiction. The issue of whether a fact is a jurisdictional fact, and therefore the kind of factual finding which can be examined in an error of law appeal, has been the subject of a number of rulings in recent years. See for example Enfield City Council v Development Assessment Commission (1994) 82 LGERA 439; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707. See also R v Blakely; ex p Assocn of Architects, Engineers, Surveyors & Draughtsmen of Australia (1950) 82 CLR 54 at 90-91 per Fullagar J. In determining whether a fact is a jurisdictional fact: 'The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional.' ( Woolworths per Spigelman CJ at NSWLR 710.) 10 The making of a competent application for review is an essential preliminary to the Tribunal exercising jurisdiction. The application can only be competent if the applicant has previously made a valid application for internal review. The respondent can properly object to jurisdiction on the basis that there has not been an application for internal review. Accordingly, when examining the circumstances relating to the making of the application for internal review, the Tribunal is engaged in the exercise of ascertaining its jurisdiction. Its conclusion of fact on that matter is jurisdictional; and therefore reviewable in an error of law appeal. Assessment 11 We do not disagree with the general approach adopted by the Tribunal. We accept that circumstances could arise where there is so little by way of substance in a communication that purports to be an application for internal review that an agency could properly decline the application. We also accept that there may be cases where an application for external review by the Tribunal is premature, and without jurisdiction, because the processes required by s 53 have not been completed. 12 However we do not agree with the Tribunal's assessment in this instance. We are not satisfied that in this case paragraph 3 of GA's letter was so non-particularised that he failed to identify 'conduct' subject to the Privacy Act. GA identified an event of concern by reference to a police record, gave an accurate internal index number and also referred to a document created by the Department of Education that relates to the event. The Police Service had a letter from a correspondent with whom they were more than familiar referring to a general set of circumstances well known to have occurred, circumstances that had involved him to some degree, and with references to official documents. 13 The Tribunal did not refer in its reasons to the last part of paragraph 3, where GA refers to how he became aware of the conduct in issue. It was, he said, as a result of material furnished in response to a summons obtained by him in connection with one of his other cases in the Tribunal. He says: 'I did not become aware of this conduct until I received a copy of an internal review report on 6 May 2004 in response to a summons issued by the Administrative Decisions Tribunal on 14 April 2004. The report is dated 27 September 2002 and was prepared, along with attachments, by Ms Lois Diamond of the NSW Department of Education and Training.' 14 In our view, though somewhat cryptic, there is ample information given to identify that, at the least, conduct involving the disclosure of information has been put in issue, and the detail is retrievable from specifically identified official documents in the possession of the Police Service. 15 As the Tribunal indicated in its reasons at para [5], there should be no insistence that the applicant identify the precise Information Protection Principle(s) put in issue. Sometimes the agency will have to make its own judgment after scrutiny of the factual circumstances placed under notice as to what IPPs might be relevant. (See, further, JD v Director General, NSW Department of Health [2004] NSWADT 7 at [37]-[39].) In this instance, as already noted, there is no express reference to what Information Protection Principle is under notice, but, it is clear that GA is referring to an event of disclosure in the first sentence of paragraph 3 of his letter. This reference at least on its face brings into play the provisions in the Act dealing with disclosure of personal information. The principal provision is s 18. The opening words of s 18(1) provide: '(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless …'. That provision contains only some of the exceptions to the prohibition. There are many other exceptions and exclusions found in the Act or in instruments made under the Act. These need to be taken into account before one can reach a settled view on whether s 18(1) has been contravened. 16 All that was required of the Police Service at this stage was to obtain the official documents, look at them and see what conduct was revealed by them that involved the handling of GA's personal information (and as the application was originally constructed his family members' personal information). At that point a further communication may well have occurred seeking to ascertain more precisely what it was that GA complained of (for example unlawful collection, unlawful disclosure, breach of security or something else). 17 We can not agree with the Tribunal that the Police Service was right to reject the letter dated 9 September 2004 in the way that it did. In our view it follows therefore that GA satisfies the first requirement of s 55(1), i.e. he is 'a person who has made an application for internal review under section 53'. 18 The second requirement for an application for external review is that either the requirement in para (a) or para (b) of s 55(1) be satisfied. Here the applicant was not challenging 'findings' – there were none; and, instead, sought to bring his application for external review within the category of a challenge to 'the action taken by the public sector agency in relation to the application' (para (b)). The Tribunal found that that provision did not apply to the present circumstances: '12 The second pre-condition for the Tribunal to have jurisdiction is that GA must be dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application. GA says that the "action taken" in this case was to decline his application for review and that as he is dissatisfied with that action, the Tribunal has jurisdiction to externally review the conduct which was the subject of his application. That submission is contrary to the findings of President O'Connor in Y v Director-General, Department of Education and Training [2001] NSWADT 149. In that case, the Tribunal held that the word "action" in s 55(1)(b) refers to action taken by the agency after investigating the conduct and making findings. In BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 Judicial Member Britton emphasised the fact that the "action taken by the public sector agency" is action taken "in relation to the application". In her view action taken in relation to the application could include action other than action taken following an internal review. 13 I am persuaded by President O'Connor's interpretation of s 55(1)(b) in Y v Director-General, Department of Education and Training [2001] NSWADT 149 and the reasons for his conclusion. Under s 53 the initial responsibility for reviewing conduct lies with the agency. It is only if the person is dissatisfied with the internal review that he or she is entitled to make an application to the Tribunal for what can be regarded as an "external" review. In those circumstances, the second pre-condition to the Tribunal's jurisdiction (that GA was dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application) has not been met and the Tribunal does not have jurisdiction.' 19 The Tribunal's interpretation creates difficulties in a case like the present one, where the agency, because it believed it did not have a competent application, conducted no investigation, made no findings and therefore never reached the point of considering whether to take action in relation to the findings. 20 In Y's case the issue before the Tribunal was different in character to the one that now presents itself in light of our finding that the application for internal review was competent. Y's case involved an attempt by an applicant to bring her case within s 55(1)(b) when in the Tribunal's opinion the application for internal review had been out of time, and was therefore not competent. Y tried through her application for external review to challenge an agency decision to refuse to exercise the discretion it clearly had under the Act to receive an application for internal review out of time (being more than 6 months after the applicant first became aware of the conduct put in issue). In light of its finding that the present application was incompetent, it is understandable that the Tribunal applied the view expressed by the President in Y. 21 In BQ, Britton JM, after expressing doubt that the words in s 55(1)(b) were limited to action taken upon the findings of a review, observed: '34 The respondent contends that it is clear that the power conferred on the Tribunal by s 55(1)(b) in respect of action taken by an agency does not relate to procedural matters concerning "the conduct of the review" but rather its scope is limited to the agency's response to its findings, namely the orders. If the construction advanced by the Commissioner in Y v Department of Education and Training were to prevail, argues the respondent, the Tribunal would effectively be deprived of power to review the consequences of the agency's review. In addition if this interpretation were correct it would be open to the Tribunal to review all aspects of the agency's procedure in respect of internal reviews. 35 I am not entirely convinced that the words "in relation to the application" should be restricted in meaning, as submitted by the respondent, exclusively to the remedies or orders made following an internal review. While, as noted by the President there exists in Part 5 an apparent distinction between the words "action" and "findings", the words, "in relation to the application" appear to me to be capable of broad interpretation and may embrace other action taken by the agency in relation to the application, not just the orders made as consequence of findings. 36 However s 55 makes clear that to trigger a review by the Tribunal it is first necessary to establish that a person …has made an application for internal review under s 53. Section 53(3) prescribes certain conditions in respect of internal applications. Here these conditions have not been met in full. Even if the words "in relation to an application" are not intended to be given the narrow meaning suggested by the respondent, in the absence of a competent application for an internal review this application must fail irrespective of what steps the respondent took in respect of the purported application. 37 The discretion conferred on the agency by s 53(3) is broad. The legislation provides no guidance as to what factors if any are to be taken into account by the agency in the exercise of this discretion. Relevantly the Privacy Act contains no equivalent to s 55(2)(b) of the Tribunal Act, which expressly grants the Tribunal power to review an internal application made out of time. I agree with the conclusion of the President in Y v Department of Education and Training [at 73] that "where it is found, or there is no dispute, that the application for internal review is out of time, the agency has, I consider, a discretion to refuse to accept the application which is not amenable to reconsideration by the Tribunal." 38 As the application made by the applicant on 24 July 2001 cannot be re-cast as an application for review of the agency's decision not to accept a late application, the applicant cannot be considered to be "a person who has made an application for internal review under s 53" and accordingly the Tribunal does not have jurisdiction to determine this application.' 22 As noted, the present case presents a different situation to that under notice in BQ and Y , in that there is (on our view) a competent application for internal review. If inaction in these circumstances can not be challenged by way of an application for external review, there is a lacuna in the law. We doubt whether the Parliament intended such a result. 23 There is one clear indication in s 53 that this was not the intention of the Parliament to preclude a citizen from applying for review by the Tribunal if the agency failed to deal with an application for internal review. Sub-section (6) deals with an uncompleted review. It provides: '(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.' 24 The scheme of the legislation does not clearly deal with the situation of a wrongly declined application. It would be a perverse outcome, in policy terms, if an agency could simply declare an application not to be an application, make no findings and thereby preclude the complainant from accessing the mechanism of external review given by s 55(1). If the words in s 55(1)(b) are construed as strictly as occurred in Y , then s 55(1)(b) could only be invoked in cases where the application had been accepted, and a review had proceeded to a finding. 25 The view expressed by Britton JM, involving the possibility of a more generous approach to the meaning to be given to the words 'action … in relation to an application', have value when applied to circumstances like the present. By taking a more flexible approach to the meaning of the terms 'action … in relation to the application' it allows for the possibility that the present kind of case could be entertained under s 55(1)(b). 26 We are inclined to modify the approach expressed in Y to allow for that possibility. But we would go no further. (The present Panel includes the President (who constituted the Tribunal in Y) as presiding member. 27 We do not interpret s 55(1)(b) to allow the possibility that any action taken by an agency in relation to a competent application could be put before the Tribunal by way of an application for external review. This would mean that applicants could try, for example, to have reviewed the process of investigation, as it is occurring; and any other agency 'action' or 'inaction' that they might decide to light upon. 28 In light of this conclusion it is not necessary to consider the Commissioner's application for the costs of the appeal. Nor is it, we think, helpful to some sensible progress being achieved in this matter for us to go on to consider the comments addressed by the Tribunal to GA in relation to vexatious conduct at para [15] of its reasons. In so far as they depend on a view of his conduct in this matter, we agree that it would have been more constructive if GA had sought to respond to the Police Service's requests than proceed to the Tribunal; but it is also clear that the relationship between the parties is a fractured one. 29 We raised with the parties, in the event that we upheld the appeal, what steps we should then take. GA submitted that we should go on and determine the merits of the application. Ordinarily Appeal Panels do not move to determine the merits where it remains more practical and convenient to remit the merits for determination. That is our view in this instance. 30 The Appeal Panel did raise with the parties the question of whether the remitter should be to the Tribunal or possibly back to the respondent. GA, whose reasons were only fortified, we consider, by some of the remarks made by Mr Shepherd in these proceedings, was opposed to giving the matter back to the Police. In our view, and we make these remarks partly in light of statements and submissions made by Mr Shepherd in the hearing before us and comments made by GA, there is a degree of animosity present in the relationship between GA and the Police which is impeding resolution of the issues he has raised. 31 In GA's view the Police Service has been persistently unresponsive to the various applications that he has made, both at agency level and before the Tribunal. Some acknowledgement of that view is found in an earlier decision of the Tribunal involving these parties: reported at [2004] NSWADT 35, a Freedom of Information Act case. The Tribunal said there: ' Report to the Minister 96 The Applicant requested that the Tribunal report the conduct of the Agency to the responsible Minister under s 58 of the FOI Act. Section 58 provides: 58 Tribunal may report improper conduct If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency. 97 The Agency has been extremely tardy in complying with the time limits imposed by the Act and the Tribunal. Furthermore, in some cases it has given conflicting and inadequate reasons for refusing to give the Applicant access to certain documents. While I appreciate that applications under the FOI Act can involve a considerable amount of time and effort on the part of an agency, compliance is not discretionary. If an Agency wishes to rely on an exemption, then it should only do so when it has relevant and persuasive evidence to support its claim. The Applicant and this Tribunal have expended a great deal of time and effort in examining the Agency's claims for exemption. In several instances the basis for the Agency's claim for exemption was extremely weak. While the Agency's handling of this matter was below the standard that the public is entitled to expect, I am not satisfied that any officer failed to exercise his or her functions in good faith and consequently I do not intend to report the conduct of the Agency to the responsible Minister. 32 We are of the view that some opportunity should be afforded to the Police to deal with the application subject to strict directions and under the supervision of the Tribunal. The matter will be remitted to the Tribunal with the following directions. The application for internal review is to be processed on the following basis: 1. The application is confined to paragraph 3 of the letter of 9 September 2004, the personal information in issue being that concerning GA only; and the sentence saying "I do not limit the scope of this request" can be ignored (hereinafter referred to as 'revised paragraph 3'). GA is to provide a reply to the letter of 10 September 2004 in relation to the questions asked as they relate to revised paragraph 3 within 7 days of the date of the publication of this decision. 2. Regardless of its view of the adequacy or otherwise of GA's reply, the respondent through the Privacy Co-ordinator is to undertake a review and make a final report to GA and the Tribunal in relation to the matters raised by GA within 30 days. 3. GA's application for review is to be relisted for directions before the Tribunal within 10 days of the expiry of the 37 day period referred to in Directions 2 and 3. 4. The application for review is to be listed for hearing within 30 days of the date of the directions hearing. 33 Directions of this kind would not ordinarily be made by the Appeal Panel. But in our view a position has been reached where strong directions are required in order to progress this matter. Order 1. The Tribunal's decision that it is without jurisdiction is set aside. 2. The application for review of conduct is remitted to the Tribunal for determination in accordance with the Directions contained in para [32]. 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.