White v NSW Department of Education and Training (GD) [2009] NSWADTAP 73

Appeal Panel - Internal

CITATION: White v NSW Department of Education and Training (GD) [2009] NSWADTAP 73

APPELLANT Christine White PARTIES: RESPONDENT NSW Department of Education and Training

FILE NUMBER: 099042

HEARING DATES: 13 November 2009

SUBMISSIONS CLOSED: 13 November 2009

DATE OF DECISION: 4 December 2009

BEFORE: O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non-Judicial Member

CATCHWORDS: Freedom of Information – Agency response consistent with existence of documents – Before Tribunal claims no documents exist – Tribunal declines jurisdiction – Appeal allowed – agency assertion lacked credibility – no notice under s 28(1)(b) – access application remitted to agency – Freedom of Information Act 1989, ss 24, 25, 28

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

CASES CITED: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140

APPELLANT In person REPRESENTATION:

RESPONDENT P Cribb, solicitor

ORDERS: 1. Appeal allowed. 2. The application for review is remitted to the Department pursuant to s 65 of the Administrative Decisions Tribunal Act 1997, on the terms and in accordance with the directions at para [29] of these reasons.

REASONS FOR DECISION 1 The appellant has been the moving party in a number of cases that have come to the Tribunal. They all derive from concerns that she has had over the operations of a selective-entrance high school (the School). 2 In this case, the matter under notice is the Department's response to one of her many applications made under the Freedom of Information Act 1989. 3 The application was made using the Department's form for this purpose, completed as follows (italicised element in handwriting): ' I request access to document(s) concerning Financial information relating to income received for Centenary pavers and Centenary walkway (see attached) '. 4 The attachment provides an explanation of the background to the request, and refers to concerns that she had over the School's administration of this fund-raising activity. 5 She was dissatisfied with the Department's response to the request, and applied to the Tribunal for review. The Tribunal ruled, in effect, that it was without jurisdiction. She now appeals. The appeal relates to an alleged error of law. 6 The Tribunal accepted the Department's submissions that the application for review sought to put in issue the adequacy of its search for the documents the subject of the request. The Tribunal ruled that it was therefore without jurisdiction, following the decision of the Court of Appeal in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140. Tribunal's Reasons 7 The Tribunal described the Department's case in this way: 'The Respondent's case 10 The DET filed and served an affidavit by Mr Cribb annexing documents related to the request and written submissions. 11 The DET contends that in response to the Applicant's request, the FOI Manager wrote to the Principal requesting that the Principal provide a document that sets out the information sought. The Principal provided information to the FOI Manager in response to that request. The DET provided the information to the Applicant in the Internal Review determination. 12 The DET submits that this matter concerns the adequacy of searches undertaken by the DET in relation to the Applicant's request. It submits that it made appropriate enquiries in relation to the information sought by the Applicant. It further submits that the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 (the Commerce case ) is authority for the proposition that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to the FOI Act. 13 Accordingly, the DET submits that the Tribunal does not have jurisdiction to deal with this application.' 8 The Tribunal's conclusion was: '19 I have considered the material before me, and it is clear to me that the initial approach taken by the DET's FOI officer was reasonable. He contacted the Principal who was the most senior officer at the School. It is reasonable to expect that the Principal would have had access to the financial information that the Applicant was seeking. However, for reasons that have not been explained, the material that the Principal provided to the DET's FOI officer was either inaccurate or incomplete. That information was given to the Applicant.' Administrative History of Processing of the Access Application 9 The request was made on 30 July 2007. The material shows that the responsible officer, Mr Cribb, had concerns over the contents of the attachment to the FOI request form. In it the appellant gave an explanation for why she was seeking the information. She made various assertions as to the way the fundraising initiative had been presented. She asked that her request be actioned without making her identity known to the School authorities. 10 Mr Cribb responded to her by putting certain views as to the nature of the fundraising initiative. He indicated that he did not think it proper to ask the School to assist him in processing the request without identifying the requester. He invited her to withdraw the application. There followed an exchange of emails. Mr Cribb agreed not to pass on her identity to the School. 11 Mr Cribb asked the School to supply him with a document that 'sets out the information sought', which he divided into eight possible sub-headings. He copied the email to Mrs White for information. She responded by questioning whether it was appropriate to rely solely on information provided by the principal. She said 'I request that financial information regarding these school expenses be obtained from the Registrar of the school, who is responsible for keeping financial records, with supporting documentation from OASIS records and receipts'. She then referred to internal business codes of the school which she believed would, if interrogated, reveal the information. 12 Mr Cribb replied (30 August 2007) that he saw this as expanding the request, and raising it to the point where the Department might require an advance deposit before continuing to process the application. 13 By 11 September 2007, the time limit for processing her original request had passed. Mrs White completed and lodged the Department's form dealing with an application for internal review, stating that she had been refused access. She was therefore proceeding on the basis that she had suffered a deemed refusal. She also referred in the form to the refusal to give her a 50% reduction in fees and charges. 14 On 13 September 2007 the Principal responded to the FOI unit. He said that the exercise (of compiling the information) would take a 'huge amount of time'. He then gave bloc information in the summary form that had been requested by Mr Cribb. 15 The Department issued a notice of determination dated 28 September 2007. It did not state whether or not there were documents responsive to the request. The determination provided the appellant with a summary list of the amounts of various categories of expenditure (three) followed by a total, and then of the amounts of income (two categories) followed by a total. 16 The determination went on to impose a charge: 'Your application took in excess of 10 hours to deal with. Having regard to the applicable hourly rate of $30 and the amounts … already paid by you … I determine that a further amount of $230 is payable by you. Please forward the payment to the A/Manager Freedom of Information at the address below.' 17 The letter concluded: 'If you are dissatisfied with this determination, you have the external review rights set out in Part 5 of the Act which are summarised at page 293 of The NSW FOI Manual (copy attached).' The Submissions at Hearing 18 In its submissions to the Tribunal under the heading 'Main Issues', the Department submitted that the appellant's request that the information be derived not just from the Principal's records but from the OASIS records and the business codes was an improper expansion of the request. The Department submitted that it had dealt appropriately with the request. It also submitted, as previously noted, that on the basis of the Commerce case the jurisdiction of the Tribunal does not extend to review of the adequacy of searches. Assessment 19 In its original form, this was an access application of a mundane kind. The applicant was simply seeking documents that provided information as to a fundraising exercise. It is difficult to see, in principle, what exemptions could be raised in relation to such a request. The documents identifying donors might raise privacy concerns. 20 Mr Cribb was, as we see it, initially trying to process the request in a way that gave the applicant the result she was looking for by having a fresh document created that gave the information in a summary form. It may be that Mr Cribb was trying to deal with the application in the manner contemplated by s 23 of the FOI Act. Section 23 provides: ' 23 Information stored in computer systems etc If: (a) it appears to an agency that an application relates to information of a kind that is not contained in a written document held by the agency, and (b) the agency could create a written document containing information of that kind by the use of equipment that is usually available to it for retrieving or collating stored information, the agency shall deal with the application as if it were an application for a written document so created and shall be taken to hold such a document.' 21 Nothing to this effect was said in the underlying material. 22 In our view this was not a case to which the Commerce case principle applied. There the agency gave a formal notification under s 28(1)(b) of the FOI Act. Section 28(1), as a whole, provides: ' 28 Notices of determination (1) An agency shall cause written notice to be given to the applicant: (a) of its determination of his or her application, or (b) if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document.' 23 The Court of Appeal upheld the agency's submission that a s 28(1)(b) decision did not engage the review jurisdiction of the Tribunal. The review jurisdiction is only engaged by a written notice of determination of the kind contemplated by s 28(1)(a), which fails to grant full access on one of the grounds enumerated in s 53(3) of the Act. 24 In this case there is no evidence to suggest that at the time the request was being processed that s 28(1)(b) was being invoked. Nor, in our view, did the Department provide any evidence in support of the assertion that its ultimate decision was on the ground that no documents could be found. 25 Consequently, in our view, there was no factual foundation established before the Tribunal for the finding implicit in its conclusion. 26 Furthermore, the agency's submissions raising the Commerce case seek, in our view, to justify what was a failure to make a determination on a basis that is incongruous. It defies belief that there would be no source documents responsive to this application. The fact that the Principal produced a document that contained detailed information itself infers that there were source documents. 27 The real issues between the Department and the applicant at this point appear to have been usual ones that often bedevil the FOI process – scale of the request, whether the applicant would accept a limited provision of documents and whether a summary document of the kind actually produced will suffice. If the case was being dealt with on a s 23 basis this should have been made clear. 28 In our view the Commerce case is not to be read as requiring the Tribunal to decline jurisdiction simply on the basis of an assertion by an agency in submissions that it has no documents responsive to a request. Something more is required – at the least, the making of an official statement in the formal response to the request to that effect that is credible, or, preferably, the formal giving of a s 28(1)(b) notice. 29 In our view, the application for review before the Tribunal must be remitted to the Department under s 65 for reconsideration on the following terms: (a) the request the subject of the application for review is the original request (b) the original request was not processed in the time prescribed (c) there was a deemed refusal of the documents sought by the original request (d) the determination on internal review was not in a form that clearly identified the statutory basis upon which it relied. 30 The Department should either make a determination pursuant to s 28(1)(a) or give a notice pursuant to s 28(1)(b). The Department should report back to the Tribunal within 28 days advising of its response. 31 If there is a determination that includes a reviewable decision, and the applicant presses her application for review, the Tribunal is to exercise jurisdiction.