CITATION: Waite v Director General, Attorney General's Department [2004] NSWADT 109 DIVISION: General Division APPLICANT PARTIES: Peter Andrew Waite RESPONDENT Director General, Attorney General's Department FILE NUMBER: 033269 HEARING DATES: On the papers SUBMISSIONS CLOSED: 02/19/2004 DATE OF DECISION: 06/04/2004 BEFORE: Higgins S - Judicial Member APPLICATION: Jurisdiction MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT M Dakin, agent ORDERS: 1. The Tribunal has no jurisdiction to hear and determine Mr Waite's application for external review; 2. The NSW Privacy file provided by the Director-General on a confidential basis be returned forthwith. REASONS FOR DECISION BACKGROUND 1 On 29 September 2003, the Applicant, Mr Waite, filed an application seeking review of a decision of the Director-General of the Attorney General's Department (Director-General) to refuse him access to documents he had requested pursuant to the Freedom of Information Act 1989. The basis of the refusal was s.9 of the Freedom of Information Act 1989 in that the documents for which Mr Waite sought access were documents held by the Office of the Privacy Commissioner and they were held as part of the Commissioner's complaint handling, investigative and reporting functions. 2 The matter first came before the Tribunal on 4 November 2003 at a planning meeting. Prior to that meeting Mr Waite had filed additional material with the Tribunal. That material related to this application by Mr Waite and another application by Mr Waite for external review of a decision of Hornsby Shire Council (ADT file no. 033181). In that material Mr Waite requested that the Tribunal directs Hornsby Council and the Attorney General's Department to release certain documents to him. This list of documents included correspondence between Privacy NSW and Hornsby Shire Council. At this meeting Mr Waite agreed to clarify his request in so far as it related to the decision of the delegate of the Attorney-General's Department. 3 A further planning meeting was convened on 26 November 2003. At this planning meeting, Mr Dakin, on behalf of the Director-General, filed a letter dated 24 November 2003, from Julie Baker, Assistant Director-General, to Mr Waite. In that letter, Ms Baker again advised Mr Waite that Director-General remained of the view that the Tribunal had no jurisdiction to review his application for review under the Freedom of Information Act 1989. 4 On 16 December 2003, Mr Waite filed submissions in support of his application. Attached to the submission were copies of the following documents: § A letter, dated 17 November 2003, from Mr Waite to the Acting Privacy Commissioner; § a transcription of item 26 on the agenda of a meeting of Hornsby Shire Council, on 14 July 1999; § a letter, dated 12 April 2003, from Councillor Orr to Mr Waite; § a letter, dated 18 December 2003, from Mr Waite to Councillor Muirhead; § a copy of a circular, dated 18 July 2002, from the Department of Local Government to Councils concerning unauthorised use of Council resources; § a letter from the Director-General of the Department of Local Government, dated 30 April 2003, to Mr Waite concerning Mr Waite's request for an internal review of the Department's determination of his recent application for access to documents under the Freedom of Information Act, 1989; § a letter from Mr Waite, dated 25 June 2003, to the General Manager, Hornsby Shire Council; § a letter from Mr Waite, dated 21 October 2003, to the General Manager, Hornsby Shire Council; and § a copy of Mr Waite's submissions, dated 12 December 2003, in support of his application for review of the determination of the Hornsby Shire Council in respect of several requests by him for access to documents pursuant to the Freedom of Information Act 1989. 5 On 16 February 2004, at a directions hearing, the parties agreed to the matter being dealt with on the papers. At this hearing Mr Waite filed an additional submission, which referred to his application for external review of the decision of Hornsby Council (ADT file no. 033181) and another application he had made for external review concerning a determination by the Director General of the Department of Local Government (ADT file nos. 033136). Attached to this submission were the following documents: § a document entitled "Hornsby Council's $26 million 'hole'" written by Mr Waite and dated 14 February 2004; § several copies of a letter, dated 11 August 2003, from David Begg Associates to the General Manager, Hornsby Council concerning usage of councillor mobile phone; § a further copy of the Department of Local Government circular on unauthorised use of Council resources with handwritten comments on it; § a further copy of page 2 of the letter, dated 30 April 2003, from the Director-General of the Department of Local Government to Mr Waite; § a copy of a letter, dated 16 February 2004, from Mr Waite to the General Manager, Hornsby Shire Council regarding misuse of Council's mobile phone; § a copy of the written submissions of Hornsby Shire Council in respect of Mr Waite's application for external review of the determination of Hornsby Shire Council (ADT file no. 033181); § a copy of Mr Waite's submissions, dated 12 December 2003, in respect of the abovementioned external review application; § a document, dated 11 December 2003, from Mr Waite to Mr Ray Hadley concerning conduct by Councillor Steve Russell; § a paper by the General Manager of Hornsby Shire Council entitled "Practical difficulties with ethics"; § a letter dated, 23 June 2003, from Clive Troy and Peter Waite to the Deputy Mayor, Hornsby Shire Council; § a letter, dated 3 February 2004, from the General Manager, Hornsby Shire Council to Mr Waite concerning the usage of Council mobile phone by Councillor Pringle; § a letter, dated 5 February 2004, from Mr Waite to the General Manager, Hornsby Shire Council responding to the abovementioned letter; § a letter, dated 16 December 2003, from Mr Waite to Mr Dakin, FOI officer of the Attorney-General's Department, concerning a decision of the Privacy Commission that the release of tape recordings made at Council meetings were not to be released; § a letter, dated 21 January 2004, from Abbott Tout Solicitors to the General Manager, Hornsby Shire Council concerning reforms to Land & Environment Court Practice and Procedure; § Practice Direction No. 22 of the Land & Environment Court of NSW, dated 2 February 2004, concerning expert witnesses; § confirmation of minutes of planning meeting no. 22/03 held on 17 December 2003; and § some other miscellaneous material. 6 On 19 February 2004, the Director-General filed, on a confidential basis, a copy of the NSW Privacy Complaint file no C00-214, which is the file relating to Mr Waite's request for access to documents under the Freedom of Information Act 1989. The Department had previously filed, on 30 October 2003, Mr Waite's original request for access to documents to Privacy NSW, dated 18 July 2003. Mr Waite's FOI application 7 Mr Waite's original application to Privacy NSW for access to documents requested the following: "Information held by Privacy NSW that substantiates Privacy NSW's letter of 2 July 2003. Please see attached letter and documents". 8 From the documents attached to Mr Waite's FOI application, it would appear that he had previously lodged a complaint with Privacy NSW alleging that Hornsby Shire Council had engaged in conduct that breached his privacy contrary to the Privacy and Personal Information Protection Act 1998. As a result of that complaint, on 2 July 2002, Privacy NSW advised Mr Waite of the outcome of their investigation into his complaint. 9 On 18 August 2003, a delegate of the Director-General determined Mr Waite's application. In the delegate's notice of determination the delegate stated the following: "It should be noted that the Office of the Privacy Commissioner, pursuant to Schedule 2 of the Act, is exempt from the Act in respect of documents that relate to the complaint handling, investigative and reporting functions of that office. Prima facie, the documents sought by the Applicant are exempt by virtue of this provision. However in accordance with the overall spirit of the legislation, Ms Johnson conducted an extensive search for documents falling within the ambit of the request. Utilising electronic retrieval systems and physical paper searches, no documents supplied by Hornsby Council could be located. In accordance with Section 28(1)(b) of the Act, the Applicant is hereby advised that no documents are held by this Agency falling within the ambit of the request". 10 As mentioned above, the delegate determined to release two documents to Mr Waite. The first document was a file note, dated 21 May 2002, written by John Rome. The second document was an eight page memorandum dated, 29 May 2002, from Mr Rome to Ms Anna Johnson. This document contained a handwritten response from Ms Anna Johnson dated 30 May 2002. These documents were released with some minor deletions. 11 On 23 August 2003, Mr Waite made an application for internal review of the abovementioned determination by the Director General's delegate. Attached to the application for internal review was a 3 page letter from Mr Waite. In that letter, Mr Waite raised 19 matters, which he alleged arose from the response he had received from NSW Privacy in respect of his complaint about the conduct of Hornsby Council. It was his contention that these matters were incorrect and he sought substantiation of the matters or to have them corrected. In his list of matters, Mr Waite requested a copy of two documents. The first document was 'a copy of Cr Cardamatis' letter to Privacy NSW'. The other document was 'a copy of Mr Ball's letter of September 22 referred to in Privacy NSW's letter of 2 October'. 12 On 25 September 2003, the Director-General completed an internal review and determined to affirm the original decision. In the internal review determination the Director-General stated the following: I am satisfied that the documents sought by the applicant fall within the complaint handling, investigating and reporting function of the Office. It is arguable that the exemption under the Act removes any obligation for this Agency to conduct either the initial determination or this internal review. However, in accordance with the overall spirit of the Freedom of information Act, the determination and review process has been applied by this agency to allow the applicant to argue that the exemption did not apply. The applicant has not provided such an argument and for the reasons outlined above I will not alter the decision made by [name]. RELEVANT LAW 13 The legislation relevant to this application is the Freedom of Information Act 1989 ("FOI Act") and the Administrative Decisions Tribunal Act 1997 ("ADT Act"). FOI Act 14 Part 3 of the FOI Act makes provision for access to documents held by government agencies. Section 16 in that Part gives every person a legally enforceable right to be given access to an agency's documents in accordance with the Act. Where a person makes application to an agency for access to documents that is required to determine whether access to the document is to be given or refused (s.24 FOI Act). Access can only be refused on specified grounds (s.25 FOI Act) and after the agency has made its determination, s.28 of the FOI Act requires the agency to cause written notice of its determination to be given to the applicant. 15 If the applicant is dissatisfied with the determination of the agency, the applicant is able to seek an internal review of that determination (s.34 FOI Act). Subsection 34(4) of that Act provides that an application for internal review is to be dealt with in accordance with Part 3 of the FOI Act as if it were an application under s.17. This means that after the agency has made a determination in respect of the internal review (s. 43 FOI Act), the agency is required to cause notice of its internal review determination to be forwarded to the applicant. 16 Section 53 of the FOI Act provides that where an applicant is 'aggrieved' by an internal review determination by an agency, the applicant has a right of external review to the Tribunal. That section, so far as is relevant, provides as follows: 53 Right to make a review application (1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination. 17 However, not all agencies are subject to the operation of the FOI Act. In this regard section 9 of the FOI Act provides as follows: 9 Certain bodies etc exempt from operation of the 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. 18 Schedule 2 of the FOI Act includes a reference to the office of the Privacy Commissioner. That reference is as follows: The office of Privacy Commissioner – the complaint handling, investigative and reporting functions of that office ADT Act 19 Section 38 of the ADT Act sets out the circumstances in which the Tribunal is conferred with jurisdiction to review a reviewable decision. That section provides, so far as is relevant, as follows: " 38 Conferral of jurisdiction to review reviewable decision (1) The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decisions (or class of decisions) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other function of the administrator identified by the enactment. 20 Section 5 of the ADT Act defines the term "enactment" to mean, in relation to a reviewable decision, an Act or a statutory rule other than the ADT Act or the statutory rules made under the ADT Act. REASONS AND DECISION 21 As demonstrated in the material filed by Mr Waite in support of this application for external review, Mr Waite has had a long ongoing dispute with Hornsby Council, in particular its General Manager and certain Councillors or former Councillors of the Council. However, as explained to Mr Waite during planning meetings and directions hearings, the Tribunal's jurisdiction is limited to reviewing decisions of the Director-General of the Attorney-General's Department in respect of his request for access to specified documents held by NSW Privacy. This means that a large percentage of the documents filed by Mr Waite are not relevant to this application. No criticism is levelled at Mr Waite who has not been legally represented. 22 It is not disputed that the office of NSW Privacy forms part of the Attorney-General's Department. 23 In my opinion, the matters in issue in this application are relatively simple. The first issue is whether Mr Waite's FOI request came within the terms of s. 9 of the FOI Act and as a result the Director-General was not required to comply with the provisions in Part 3 of the Act. This issue requires the Tribunal to make a finding of fact as to whether the documents sought by Mr Waite were documents relating to the 'complaint handling, investigative and reporting functions' of the office of the Privacy Commissioner. In my opinion, having examined the file of the office of NSW Privacy, which was provided to the Tribunal on a confidential basis, I am satisfied that Mr Waite's FOI application does come within these terms. That is, the documents sought by Mr Waite clearly relate to the complaint handling functions of NSW Privacy. 24 Accordingly, the Director-General is exempt from the operation of the FOI Act in respect of the documents for which Mr Waite has sought access. 25 The next issue is whether the Director-General has in any event treated Mr Waite's request pursuant to Part 3 of the FOI Act and made determinations that are reviewable by the Tribunal. 26 Having regard to the terms of the original determination of the Director-General's delegate, where she expressly stated that she was acting in accordance with s. 28(1)(b) of the FOI Act, in my opinion, she dealt with Mr Waite's request pursuant to Part 3 of the FOI Act. Furthermore, Mr Waite was informed that he had a right to request an internal review, a right that he subsequently exercised. However, she also stated that NSW Privacy was exempt from the operation of the FOI Act and that "in the spirit" of the FOI Act, Ms Johnson of NSW Privacy had conducted a search to ascertain whether there were any documents that came within the terms of his request. As mentioned above, no such documents were found. 27 Accordingly, at most, the Director-General has voluntarily dealt with Mr Waite's FOI application as if the provisions in Part 3 applied. In my opinion, this is not sufficient to give the Tribunal jurisdiction to review the original determination of the delegate or the internal review determination of the Director-General. 28 Section 38(1) of the ADT Act clearly provides that the Tribunal only has jurisdiction to review an administrative decision where the legislation under which that decision was made expressly gives the Tribunal jurisdiction to do so. In the case of decisions made under the FOI Act, Parliament has only given the Tribunal jurisdiction to review determinations that are made pursuant to ss. 24 or 43 of the FOI Act. On the other hand, Parliament has not given the Tribunal jurisdiction to review a decision by an agency that it is exempt from the operation of the FOI Act by reason of s 9 of that Act. Accordingly, where an agency is able to establish, as a matter of fact, that it is exempt from the operation of the FOI Act, the Tribunal has no jurisdiction to hear and determine an external review application of an FOI applicant whose request for access to documents comes within s. 9 of the FOI Act. 29 The fact that an agency, which is exempt by virtue of s. 9 of the FOI Act, voluntarily or mistakenly responds to an FOI application pursuant to Part 3 of that Act, cannot give the Tribunal jurisdiction where Parliament has clearly expressed a contrary intention. 30 In this application, the Director-General sought to assist Mr Waite. Again that assistance cannot operate to vest jurisdiction on the Tribunal where Parliament has not given the Tribunal jurisdiction. 31 For the reasons stated above, in my opinion the Tribunal has no jurisdiction to hear and determine this application, by Mr Waite, for external review. 32 In the event I am incorrect as to the proper construction of the relevant provisions of the FOI Act and the ADT Act, I have carefully examined the documents contained in the file provided by the Director-General on a confidential basis, and I am of the opinion that the Director General's decision is the correct and preferred decision. 33 The Tribunal orders: 1. The Tribunal has no jurisdiction to hear and determine Mr Waite's application for external review. 2. The NSW Privacy file provided by the Director-General on a confidential basis be returned forthwith. 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.