CITATION: Hall v Independent Commission Against Corruption [2008] NSWADT 271 DIVISION: General Division APPLICANT Ian Milton Hall PARTIES: RESPONDENT The Independent Commission Against Corruption FILE NUMBER: 083095 HEARING DATES: On the papers SUBMISSIONS CLOSED: 16 May 2008 DATE OF DECISION: 3 October 2008 BEFORE: Higgins S - Judicial Member CATCHWORDS: Access to documents - right of review MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Independent Commission Against Corruption (Operations Review Committee) Act 2006 Independent Commission Against Corruption Act 1988 Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 CASES CITED: McGuirk v Commissioner of Police, New South Wales Police [2008] NSWADT 72 McGuirk v NSW Ombudsman [2007] NSWADT 269 APPLICANT In person REPRESENTATION: RESPONDENT R Waldron, solicitor to the Commission ORDERS: On or before 10 October 2008 the Respondent to provide the Tribunal, on a confidential basis, with a copy of the report to the ORC as referred to in this decision. Introduction 1 On 14 March 2008, Mr Hall made an application seeking review of a decision by the Independent Commission Against Corruption ('the ICAC') in regard to a request he had made, pursuant to the Freedom of Information Act 1989 ('the FOI Act'), for access to documents. In that request Mr Hall sought access to the following document: 'The ICAC report and recommendations to the ORC upon which that Committee made judgment concerning my allegations of corruption against the ombudsman, Bruce Barbour, Senior Investigator Dominic Riordan and solicitor Nedwich – ICAC reference E04/1024.' 2 The document requested by Mr Hall is referred to as 'the report to the ORC' in this decision. 3 By consent this application is being determined on the papers filed by the parties. In this regard 3 letters were filed by Mr Hall on 17 and 14 April 2008 and 29 May 2008. In these letters Mr Hall set out his reasons why he sought access to the report to the ORC and why it should be provided to him. 4 The ICAC filed documents on 9 April and 16 May 2008. This material included Mr Hall's original FOI application dated 27 July 2006, the ICAC's response to this application dated 16 August 2006, Mr Hall's request for a review dated 5 January 2008, the Commission's response to this request dated 10 January 2008, a statement by Mr Roy Waldron executive director of the legal division of the ICAC dated 16 May 2008 and written submissions including a copy of the judgment in the decision of Simpson J in Independent Commission against Corruption v McGuirk [2007] NSWSC 147 ('ICAC v McGuirk'). Background 5 The report to the ORC came into existence as a result of a thirteen-page letter of complaint that Mr Hall made to the 'ICAC Assessment Officer' on 14 April 2004. In that complaint, Mr Hall made allegations of corrupt conduct by the Ombudsman, Mr Bruce Barbour, the Senior Investigating Officer of the office of the Ombudsman, Mr Dominic Riordan and Mr R Nedwich, solicitor who had been acting on behalf of the Local Council in which Mr Hall lives ('the Council'). It would appear that Mr Hall had been involved in a dispute with the Council in regard to its acquisition of land and some "additional roadwork's". Mr Hall made complaints to the Ombudsman in regard to the conduct of the Council. These were dealt with by the Ombudsman and Mr Hall has remained dissatisfied with the manner in which the Ombudsman dealt with his complaints and the manner in which these complaints were reported on by the Ombudsman to State Parliament. 6 On 19 August 2004, the ICAC Assessments Officer wrote to Mr Hall in response to his complaint. In that response the Assessments Officer said that the allegations Mr Hall had made against Mr Barbour and Mr Riordan were not supported by the information he had provided. He concluded by saying that Mr Hall's complaint had been reported to the 'ICAC's Operations Review Committee' and the Committee had supported a recommendation to the Commissioner that the matter would not be investigated. This recommendation the Assessment Officer said had been accepted by the Commissioner and accordingly the ICAC would not be pursuing the matter further. 7 On 27 July 2006, Mr Hall made a 'fresh FOI Application', which is the FOI request the subject of this application. In the letter that accompanied his request, Mr Hall questioned whether the specific allegations in his complaint had in fact been reported to the ORC. He made this assertion on the basis that the Assessment Officer had failed to make any reference, in the response, to the specific allegations in his complaint. Mr Hall went on to assert that he, as a complainant, 'should and must be fully informed in detail of why ICAC has not sustained an allegation.' As this had not been done he sought access to the ICAC's report and recommendations to the ORC. 8 On 16 August 2006, Mr Roy Waldron, solicitor to the Commission, wrote to Mr Hall advising him that the report to the ORC fell within ICAC's complaint handling and investigation function and that by reason of sections 9 and Schedule 2 of the FOI Act the provisions of that Act did not apply to this document. He went on to say that if the FOI Act did apply then the documents would be 'exempt' under that Act. 9 Almost 18 months later, on 5 January 2008, Mr Hall sought a review of this decision of Mr Waldron. In this request for review Mr Hall said that he had been advised that the basis on which the ICAC had refused him access to the report to the ORC was not applicable. He asserted that the refusal was based on the document being an 'internal working document' which is included in the category of 'exempt' documents in Schedule 1 of the FOI Act and for which an agency can refuse access to a document requested: see section 25(1)(a) and clause 9 of Schedule 1 of the FOI Act. 10 Mr Waldron responded to Mr Hall's request for review on 10 January 2008. In that response he advised Mr Hall that the Commission had not refused him access to the report to the ORC on the basis it was an 'internal working document'. He went on to reiterate that by reason of section 9 and Schedule 2 of the FOI Act that Act did not apply to the report as requested by Mr Hall. Issues 11 There are essentially only two issues in this application. These are: (a) whether the document for which Mr Hall has sought access is a document which comes within the corruption prevention, complaint handling, investigating and reporting functions of the ICAC; and (b) if it does what powers, if any, does the Tribunal have to review any decision the ICAC may have made in regard to Mr Hall's request for access to that document. 12 The first issue is a question of fact having regard to the functions of the ICAC as set out in the provisions of the Independent Commission Against Corruption Act 1989 ('the ICAC Act'). As explained below the Tribunal is not able to finally determine this question without being provided with a copy of the report to the ORC, which should be provided to the Tribunal on a confidential basis before any final orders are made. 13 In regard to the second issue, this is a matter of construction of the relevant provisions of the FOI Act and the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). It is convenient to deal with this issue first as it prescribes the Tribunal's jurisdiction insofar as it relates to the report to the OCR if it does in fact fall within the description of documents of an agency to which section 9 and Schedule 2 of the FOI Act applies. The Tribunal's jurisdiction in regard to a document of an agency falling within the description of section 9 and schedule 2 of the FOI Act 14 Under section 38(1) of the ADT Act the Tribunal is given jurisdiction to hear and determine applications for review of a 'reviewable decision' of an administrator that is made under an 'enactment' (i.e. an Act other than the ADT Act: see section 5 of the ADT Act), and that 'enactment' provides for the review of that decision. 15 Section 53(1) of the FOI Act is such a provision in that it expressly provides that the Tribunal has jurisdiction to review decisions made by an administrator under the FOI Act. However, that right is only extended to 'determinations' that are made by an agency under section 24 or 43 of the FOI Act. Section 24 concerns a determination made by an agency in regard to an application for access by a person under section 17 of that Act. Section 43 concerns a determination of an agency in regard to an application under section 40 for the amendment of an agency's records. These provisions are found in Part 3 and Part 4 respectively of the FOI Act. 16 In the decision of ICAC v McGuirk, Simpson J, at [9] to [12] gave the following a brief outline of the legislative scheme set out in the FOI Act in so far as it relates to a request for access. It is convenient to repeat some of these paragraphs: '9 The objects of the FOI Act are set out explicitly in section 5(1), as being to extend, so far as possible, the availability of government information to the public, and to ensure the accuracy of that information. Section 5(2) specifies the means by which those objects are to be achieved, recognising the need for some restriction, by reason of the needs of proper administration. 10. Perhaps the heart of the FOI Act is contained in section 16, which is in Part 3 thereof, and which confers on individuals a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. ('Agency' is defined in s. 6 in such a way as to include ICAC.) Section 17 sets out the requirements of an application. Subsequent provisions in Part 3 deal with the mechanics of dealing with applications. Not surprisingly, other provisions in the FOI Act limit the extent of the operation of section 16, which is, it can be seen, in very broad terms. 11. By section 24(1) an agency is obliged to consider an application for access to a document, and to determine and (inter alia) whether access is to be given or refused. Section 25 sets out the circumstances in which an agency may refuse access. Relevantly to the present appeal, these circumstances include that the document is 'an exempt document'. Exempt documents are identified in Schedule 1, but, more particularly for present purposes, (by section 6) include documents containing matter relating to functions in relation to which a body or office (which includes ICAC) is, by virtue of section 9 (see below), exempt from the operation of the Act. ... section 9 of and Schedule 2 of the FOI Act exempt ICAC from the operations of the FOI Act in relation to such of its functions as are specified or described in Schedule 2. ' 17 Section 9 of the FOI Act provides as follows: ' 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.' 18 As mentioned by Simpson J, the ICAC is an agency for the purpose of the FOI Act: see section 6(1) and 9). It is also a body listed in Schedule 2 of that Act it is exempt from the operation of the Act in so far as its 'corruption prevention, complaint handling, investigative and report functions' are concerned. 19 In regard to the proper construction of section 9 of the FOI Act, at [19] Simpson J said the following: '19. … [What] section 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 section 9 documents, the FOI Act has no further application to that body or office. That includes section 24.' 20 This means that where an FOI request is made to a body listed in Schedule 2 (e.g. the ICAC) and the request relates to any of the function of that body as set out in Schedule 2 (e.g. in case of the ICAC, its 'corruption prevention, complaint handling, investigative or reporting functions'), then that body (e.g. the ICAC) is exempt from complying with the provisions in Part 3 and Part 4 of the FOI Act. That is, it is not required to deal with that request in accordance with Part 3 or Part 4 of the Act including making a determination under section 24 and 43. The consequence of this is that there can be no 'reviewable decision', as described in section 53(1) of the FOI Act, for the Tribunal to review. This was the issue for determination by Simpson J in ICAC v McGuirk. 21 In ICAC v McGuirk, Her Honour also referred to the document of an agency to which section 9 applies as being an 'exempt' document, by reason of section 6. At [20] Her Honour said that 'it would be open to the applicant [Mr McGuirk] to challenge' in the ADT, under section 53 of the FOI Act a determination that a document is a 'section 9/Schedule 2 document'. Her Honours comments were obiter as it was accepted that the document in question in that case was an 'exempt' document. 22 An 'exempt document' is defined in section 6(1) of the FOI Act to include 'a document that contains matter relating to functions in relation to which a body or office, by virtue of section 9, exempt from the operation of this Act.' 23 In my opinion, although the factual categorisation of the requested document may be the same, in determining whether the agency is exempt from the operation of the FOI Act and in determining whether the requested document is an 'exempt document' under the above definition, it is only the latter which falls within the provisions of section 53 of the FOI Act. 24 Determining whether an agency is exempt from the operation of the FOI Act is an issue that goes to the Tribunal's jurisdiction, as any decision made by an exempt agency in regard to an FOI request is not reviewable by the Tribunal. For this exemption to apply the starting point must be that the agency to whom the FOI request has been made is a body that is included in Schedule 2. 25 The next issue is the categorisation of the document requested. If the document, as a matter of fact, relates to any of the prescribed functions of the requested agency as set out in Schedule 2, then the agency is exempt from the operation of the FOI Act by reason of section 9. In these circumstances, the categorisation of the document as a section 9 and Schedule 2 document is a relevant fact going to the jurisdiction of the Tribunal (i.e. a jurisdictional fact): see McGuirk v NSW Ombudsman (No3) [2007] NSWADT 269. 26 If the requested document cannot be categorised as a section 9 and Schedule 2 document, then the requested agency will be bound by the provisions of Part 3 the FOI Act in regard to that document, even though it is a body listed in Schedule 2. 27 Furthermore, if the same FOI request is made to another agency which holds the same document, that agency will be bound by the provisions of Part 3 of the FOI Act and any determinations (including a failure to make a determination within the prescribed time) will be reviewable decision by the Tribunal under section 53 of that Act. In making its determination, however, this agency will be able to make a determination under section 25(1) to refuse access to the document on the basis that it is an 'exempt document': see McGuirk v Commissioner of Police, New South Wales Police [2008] NSWADT 72 and [45] and [46]. In these circumstances, the categorisation of the document as a section 9 and Schedule 2 document does not go to the jurisdiction of the Tribunal. 28 It is the former (i.e. a question going to the jurisdiction of the Tribunal) and not the latter which is in issue in this application. Is the report to the ORC a section 9 Schedule 2 document? 29 The ICAC Act makes provision for the establishment of the Independent Commissioner Against Corruption and sets out the powers and functions of the Commissioner. These include receiving allegations of corrupt conduct and determining whether these allegations should be investigated. The allegations are made either by means of a written complaint by any person pursuant to section 10 of the ICAC Act or as a result of a duty imposed on specified agencies to notify the Commission of all suspected corrupt conduct under section 11 of that Act. Where a complaint is made by a person under section 10 of the Act, the Commission may investigate the complaint or decide that the complaint need not be investigated: see section 10(2) of the ICAC Act. 30 At the time Mr Hall made his complaint of 14 April 2004, the ICAC Act, as it then applied, provided for an Operations Review Committee, whose functions were set out in section 59. These functions included advising the Commissioner whether the Commission should investigate a complaint made under the Act or to discontinue an investigation of such a complaint: see section 59(1)(a) of then ICAC Act. 31 Section 20(4) of the then ICAC Act also required the ICAC to consult the ORC before it decided to discontinue or 'not to commence' an investigation. 32 The Operations Review Committee ('the ORC') was made up of persons who were independent of the ICAC. The ORC ceased to exist on 26 May 2006 as a result of the provisions in the Independent Commission Against Corruption Amendment (Operations Review Committee) Act 2006. 33 In his statement Mr Waldron set out the manner in which a section 10 complaint was dealt with by the Commission at the relevant time. He explained that all complaints and notifications were initially handled by the Commission's Assessment Section. All section 10 complaints were then referred to the Commission's Assessment Panel, which in 2004 comprised the Commission's Deputy Commissioner and the Executive Directors of the Strategic Operations (now Investigations Division), Legal Division and Corruption Prevention, Education and Research Division and the Manager of the Assessment Section. The Assessment Panel would analyse each complaint as to whether it should or should not be investigated by the Commission or whether some other action such as referral to another agency should be considered. After this assessment, the Assessment Section would prepare a written report for consideration by the ORC. The ORC would consider that report and then advise on how the matter should proceed. 34 Mr Waldron who was not a member of the Assessment Panel or a member of the Assessment Section at the relevant time, attached to his statement a copy of Mr Hall's complaint of 14 April 2004 and ICAC's response to that complaint dated 19 August 2004. He said that from his examination of this material and the Commission's records, Mr Hall's complaint was dealt with as a section 10 complaint and that a report was prepared for the ORC. A copy of that report was not provided to the Tribunal, even on a confidential basis. 35 Mr Waldron said that in August 2004, the ORC considered the report and recommended to the Commissioner that the matter not be investigated. This advice he said was accepted by the Commissioner. 36 In the letters filed by Mr Hall, he reiterates that he is seeking access to the report to the ORC as he is not satisfied that the Commission fairly put each and every one of his allegations of corruption to the ORC so that they could be given proper consideration. He asserts that he had produced ample evidence to sustain his complaints and he asserts the ICAC's failure to put these matters fully to the ORC was a breach of the ICAC's Code of Conduct. It is on this basis, he asserts the legal arguments and evidence submitted by the ICAC in this application should be rejected by the Tribunal and a decision should be made to grant him access to the document sought. 37 Mr Hall also contended that the ICAC having failed to pursue his allegations did not engage in 'corruption prevention'. He asserted that his letter was not a 'complaint' coming within the terms of section 10 and for this reason, together with the manner in which the ICAC handled his allegations meant that the report to the ORC was not a document that fell within the ICAC's complaint handling and investigation functions. 38 Whether the ICAC has or has not adequately responded to Mr Hall's complaint of 14 April 2004 is not a matter over which the Tribunal has any jurisdiction. The Tribunal's jurisdiction is limited to the decision made by the ICAC in regard to Mr Hall's FOI application of 27 July 2006. 39 While the decision of Mr Waldron, as evidence in his letter of 10 January 2008, is not couched in exactly the same terms of section 9 of the FOI Act, it is in my opinion evident from the terms of the letter that Mr Waldron had decided, as he did earlier, that: (a) the report to the ORC as requested by Mr Hall was a document that related to the ICAC's 'corruption prevention, complaint handling, investigative or reporting' functions; and (b) by reason of section 9 and Schedule 2 of the FOI Act, the ICAC was exempt from dealing with Mr Hall's FOI request. 40 In my opinion, Mr Hall's letter of 14 April 2004 can only be regarded as a complaint falling within section 10 of the ICAC Act. It is in writing and addressed to the ICAC Assessment Officer. It is a complaint about government officials in that it is alleged that these officials had acted corruptly. 41 As mentioned above, complaint handling is an ICAC function that is expressly included in Schedule 2 of the FOI Act. In my opinion, Mr Hall's letter of complaint is of itself a document falling within section 9 and Schedule 2 of the Act. Any documents created by the ICAC in response to that letter would generally also form part of this 'complaint handling' function. It may of course also fall into the 'investigative' function of the ICAC. 42 This is the nature of the evidence of Mr Waldron, who has said that the report to the ORC came into existence as a result of Mr Hall's complaint. Although I do not doubt the evidence of Mr Waldron, in my opinion, for completeness, a copy of the report should be viewed by the Tribunal before any final orders are made, particularly as Mr Hall has not accepted that it is a report falling within the Schedule 2 functions. I note that provision of documents of this nature are usually provided to the Tribunal on a confidential basis: see McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269 at [35]. 43 I would however, indicate that subject to viewing the report, I am in general agreement with the ICAC that the Tribunal has no jurisdiction to review the 10 January 2008 decision of the ICAC that is the subject of this application. If this is correct then the application will be dismissed. Orders On or before 10 October 2008 the Respondent to provide the Tribunal, on a confidential basis, with a copy of the report to the ORC as referred to in this decision. 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.