LZ v Office of the Protective Commissioner [2009] NSWADT 169

CITATION: LZ v Office of the Protective Commissioner [2009] NSWADT 169

DIVISION: General Division

APPLICANT LZ PARTIES: RESPONDENT Office of the Protective Commissioner

FILE NUMBER: 083255

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 28 November 2008

DATE OF DECISION: 30 June 2009

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Access to documents - adequacy of searchJurisdiction - reviewable decision

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

Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce [2008] NSWCA 140 CASES CITED: LZ v Office of the Protective Commissioner [2008] NSWADT 22 LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50

APPLICANT In person REPRESENTATION: RESPONDENT C Phang, solicitor

ORDERS: The matter is to be listed for further directions

REASONS FOR DECISION 1 The background to this matter is detailed in my decision in LZ v Office of the Protective Commissioner [2008] NSWADT 22. In summary, this application for review relates to a series of requests for access to documents made by the applicant to the respondent pursuant to the Freedom of Information Act 1989 (the FOI Act), covering the period 28 January 2004 to 10 August 2006. The applicant is a protected person whose financial affairs are under the management of the respondent. The documents requested relate to a range of concerns which the applicant has with the handling by the respondent agency, as her representative, of a personal injuries case in which she was the plaintiff, and the management of her property more generally. 2 The application for review was lodged with the Tribunal on 11 January 2007. The form of the review application is described at paragraphs 8 and 9 of the determination of the Appeal Panel in LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50. I identified 17 administrative events involving requests by the applicant for access to documents relating to the management of her affairs by the respondent. As discussed in my reasons in LZ v Office of the Protective Commissioner [2008] NSWADT 22, I concluded that some of those requests and determinations (identified as events 5 to 12) had been the subject of a review by the NSW Ombudsman, the outcome of which was notified to the applicant by letter dated 31 October 2006. I identified a further two events (1 and 16) in relation to which the applicant had requested internal review of a determination made by the respondent. There were a further two events (4 and 13) in relation to which I concluded that the applicant had not requested internal review. I determined that the application for review had been lodged outside the 60 day period prescribed in s54 of the FOI Act, and that there was no power to extend that time, and concluded that there was no jurisdiction to determine the application for review. 3 The applicant appealed to the Appeal Panel. The Appeal Panel determined that the general power to extend time for the making of an application for review conferred by s57 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) applies to applications for review made in respect of decisions under the FOI Act, and that the applicant's first ground of appeal succeeded: LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50 at [60]. The Appeal Panel considered that the applicant's submission concerning the date on which she received notification of the Ombudsman's' review was a good one, and that my calculations as to the date of notification should be reconsidered. The Appeal Panel noted: 63 As noted in our discussion of the question of whether in fact the Application was late, we are minded to remit the matter. It will be necessary in calculating the time period for the Tribunal to identify precisely the previous application which is the subject of the Application for Review, and make its calculations against that starting point, allowing for any suspension of time if a connected complaint was under investigation by the Ombudsman. 64 We note that the conclusion expressed in the Ombudsman's letter dated 31 October 2006 may present a new difficulty. If the only matter left in issue in respect of the access application upon which the Application for review is said to be founded is sufficiency of search, then the tribunal has no jurisdiction to deal with that matter: see Administrative Decisions Tribunal Appeal Panel v Director General Department of Commerce & Ors [2008] NSWCA 140. 65 If it is finally determined that there has been an infraction of the time requirement, the Tribunal is, for the reasons we have given, not precluded from considering an application to extend time. The question then will be whether the applicant has a reasonable explanation for the delay in making the application. In our view, this matter should be approached with some circumspection. The FOI filing period is already a generous one (60 days), as compared with the usual period in the Tribunal (28 days). 4 The Appeal Panel remitted the matter for determination having regard to its reasons. 5 The matter was listed for directions on 23 October 2008. On that occasion I made directions that the respondent file and serve written submissions by 7 November 2008 as to the decisions under review, the effect of the Ombudsman's investigation, and whether the application for review was lodged out of time. I directed the applicant to file and serve submissions in reply by 28 November 2008, failing which her submissions of 15 November 2007 and her submissions in support of the appeal to the Appeal Panel would be treated as submissions in reply. I determined in accordance with s74 of the ADT Act that the matter could be adequately determined on the papers. 6 On 24 October 2008 the applicant requested leave for the issue of a summons requiring the respondent to produce documents identified in an attached chronology, and requested access to the Tribunal file to refresh her memory, so that she could make submissions in accordance with the Tribunal's directions. The majority of the documents requested were on the Tribunal file, and arrangements were made for the applicant to have access to that file. At the request of the Tribunal, the respondent provided copies of additional documents to the applicant by letter dated 4 November 2008. I refused leave to issue the summons. 7 The respondent filed and served its submissions on 4 November 2008. The applicant has not filed any further submissions, and in accordance with the directions made on 23 October 2008 I have had regard to her submissions of 15 November 2007 and her written submissions in support of the appeal to the Appeal Panel. Respondent's case 8 The respondent's submissions of 4 November 2008 are that the access applications that are the subject of the application for review are decisions in events 4, 5, 6, 7, 9, 10 and 12 as identified in its chronology filed on 8 March 2007. The respondent based this submission on its construction of the terms in which the application for review was expressed, which it argues suggest that the applicant is seeking a review of those decisions to which access was denied to communication with Fay Parkinson, decisions concerning no access to the file of WH Parsons, and decisions concerning no access to the file of Craddock Murray Neumann. The respondent accepts my conclusion in paragraph 38 of the earlier reasons that the relevant time for considering whether an application for review in relation to events 5 to 12 is within time is the Ombudsman's letter dated 31 October 2006. In relation to event 4, the respondent relies on its previous submission that the internal review was notified to the applicant by letter dated 25 May 2005, and is out of time. In relation to events 5, 6, 7, 9, 10 and 12, the respondent submits that if it is correct that the applicant received the Ombudsman's letter dated 31 October 2006 on 15 November 2006, the application for review was lodged within time. The respondent submits that if the application for review was lodged out of time, that time should not be extended for the reasons given in its submissions of 8 March 2008. Those reasons were, in summary, that the applicant has not applied for an extension of time, and that if she had, there was no reasonable explanation for the delay in making the application, as based on her previous applications to the Tribunal the applicant is fully aware that there are time limits for the lodging of applications for review. Applicant's case 9 As noted above, the applicant has not filed submissions in response to the directions made on 23 October 2008 as to which of the applications are the subject of the application to the Tribunal. In her submissions filed on 15 November 2007 she provided a chronology that included most of the requests for access and responses identified in the respondent's chronology. Her submissions in support of her appeal to the Appeal Panel refer to a number of specific requests for access, and the course of her complaint to the Ombudsman and her correspondence with officers of the respondent. In the absence of any more specific submissions, it appears that the applicant is asserting that all the events identified in the chronology are the subject of her application to the Tribunal. In relation to some of those events, in her submissions to the Appeal Panel the applicant submits that she was unable to apply to the Tribunal for review until after she received the Ombudsman's letter. Documents have been stolen from her premises by her neighbour and she had to wait until she obtained copies from the Ombudsman's office which had been provided during the course of the investigation. 10 In her appeal to the Appeal Panel, the applicant submitted that the letter from the NSW Ombudsman dated 31 October 2006 had been posted on 10 November 2006, relying on the postmark on the envelope in which it was sent to her, and was received by her on 15 November 2006, and that accordingly her application for review lodged on 11 January 2007 was within the 60 days prescribed by s54 of the FOI Act. Consideration 11 I have reconsidered the 17 events summarised in paragraph 17 of my reasons in LZ v Office of the Protective Commissioner [2008] NSWADT 22. There is some merit in the respondent's submission that the task of identifying the access applications that are the subject of the application for review can be limited by a reading of the application to the Tribunal, and on this basis might not include the events identified as 1, 2, 3 or 11 in the chronology. However, as noted by the Appeal Panel at paragraph 12 of its reasons, "[t]he Application for Review was difficult to comprehend". The applicant has repeatedly stated that she has difficulty in locating relevant documents because of problems with her neighbour. In my view it would not be fair to restrict the scope of the application for review in the way contended for by the respondent. The issue is whether any, and if so, which, of the 17 events is a determination of a kind to which the Tribunal's jurisdiction attaches. 12 In my view the determinations identified as events 1 (together with event 2), 5 (together with event 6), 9 (together with 10), 12, 14, and 16 (together with event 17) could arguably be construed as requests for access to documents followed by requests for an internal review. 13 Section 52 of the FOI Act provides that the conduct of a person or agency in relation to a determination made by the agency may be the subject of a complaint to the Ombudsman. Section 52(2) provides: The Ombudsman shall not investigate the conduct of any person or body in relation to a determination made by an agency under this Act: (a) while the determination is subject to a right of review under section 34 or 47, or (b) if the determination has been subject to a right of review under section 34 or 47 but no application for review of the determination was made while it was subject to that right, or (c) while any relevant proceedings are before the Tribunal under Division 2. 14 The right to apply to the Tribunal for review is conferred by s53 of the FOI Act in the following terms: 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. (2) A review application may not be made: (a) while the determination is subject to a right of review under section 34 or 47, or (b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or (c) while any relevant complaint is being investigated by the Ombudsman. (3) For the purposes of this section, a person is aggrieved by a determination: (a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36-if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document, or (ii) access to a document is to be given to the person subject to deferral, or (iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or (iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or (v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or 15 The time within which an application for review is to be lodged is provided in s54 of the FOI Act: 54 Time within which review applications to be made A review application is to be made: (a) except as provided by paragraph (b)-within 60 days after notice of the determination to which it relates is given to the access applicant, or (b) if a complaint is made to the Ombudsman in relation to the determination-within that period of 60 days and: (i) the Ombudsman refuses to investigate the conduct complained of or discontinues an investigation of that conduct within 60 days after the complainant is informed of that fact, or (ii) the Ombudsman completes an investigation of the conduct complained of within 60 days after the results of the investigation are reported to the complainant. 16 In my earlier reasons, I discussed at paragraphs 35 and 36 deficiencies in compliance by the respondent with the formal requirements for notification of determinations made under the FOI Act and the conduct of internal reviews under the FOI Act. These concerns, and my conclusions as to the consequences that followed, were not the subject of consideration by the Appeal Panel. In relation to event 1, I remain of the view I expressed in paragraph 39 in my earlier reasons that whether the response dated 1 March 2004 is regarded as an effective determination, or there was a deemed refusal, the applicant requested (by her letter of 18 March 2004) internal review; no formal internal review determination was made within 14 days and by virtue of s34(6) there was a deemed refusal. If this determination is included in the application for review, the application was lodged nearly three years after the deemed refusal. The same reasoning applies to event 16, in which case the application for review was lodged nearly five months after the deemed refusal. 17 Section 57 of the ADT Act, as in force at the time the application for review was lodged, provided: 57 Late applications to Tribunal (1) Despite section 55 (1) (d), the Tribunal may, on application in writing by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made). 18 Section 57 was amended with effect from 1 January 2009 and now reads: 57 Late applications to Tribunal (1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (1A) An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, "late application" means an application not made within the period or time referred to in section 55 (1) (d). 19 The significant part of the amendment to s57 is to expressly confer power on the Tribunal to dispense with a requirement that an application to extend the time for the making of an application for review must be in writing. The central requirement that the Tribunal form an opinion as to whether the person has provided a reasonable explanation for the delay in making the application remains. The respondent submits that the applicant has not provided a reasonable explanation for the delay, given her previous dealings and thus her awareness of the applicable time limits. However, the applicant has contended throughout her correspondence with the respondent, and with the tribunal (including in the application for review), that she believes that documents have been taken from her premises by her neighbour. 20 Whether or not this is a reasonable explanation for the delay, and whether or not it would be appropriate to read the application for review as constituting a request in writing to extend the time, in my view no purpose would be served by extending the time for lodging an application for review of the determinations in events 1 and 16. As noted by the Appeal Panel in paragraph 64 of its reasons, the Tribunal's jurisdiction does not extend to a consideration of whether an agency has conducted sufficient searches and retrieved all the documents it in fact holds in responding to a request for access. The Tribunal has no jurisdiction to go behind an agency's determination that it has provided access to all the documents it holds that fall within the terms of a request for access: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140. The determination in event 1 was to provide the applicant with supervised access to all the documents held by the respondent, while that in event 16 was to provide access to some documents and advise that other documents had already been provided or not located. The Tribunal would have no jurisdiction to review these determinations. 21 The respondent's determinations in events 3, 13, 15 and 15 were to provide copies of all the documents it held falling within the terms of the request. This means that regardless of whether or not these events are access applications that are the subject of the application for review, the Tribunal has no jurisdiction to review these determinations. 22 Events 5 to 12 were the subject of the investigation by the Ombudsman. Based on the respondent's chronology and the documents provided to the Tribunal, the internal review determination of 30 May 2006, which is listed separately as event 14, was included in the matters reviewed by the Ombudsman. 23 The applicant has provided a copy of the envelope in which she states she received notification of the outcome of the Ombudsman's investigation. While the letter was dated 31 October 2006, the postmark on the envelope is dated 10 November 2006. Section 60 of the FOI Act provides that a notice may be given by means of a letter posted to the person, in which case it is taken to have been given to the person by the end of the fifth day after the letter was posted. Section 76 of the Interpretation Act 1987 deems service by post to have been effected, "unless evidence sufficient to raise doubt is adduced to the contrary", on the fourth working day after the letter was posted. Accepting, in the absence of evidence to the contrary, that the letter was posted on 10 November 2006, it does not appear to make a difference whether s60 of the FOI Act or s76 of the Interpretation Act apply. The time within which to lodge the application for review would run from either 15 or 16 November 2006, which is less than 60 days before the application for review was lodged on 11 January 2007. 24 For the reasons provided above, in my view events 5 (together with event 6), 9 (together with 10), and 12 could reasonably be construed as requests for access to documents followed by requests for an internal review. The application for review of these determinations was lodged within the 60 days prescribed by s54. With one exception, the respondent's determinations in all of these matters was to provide copies of documents it held that fell within the terms of the requests, and to advise where it was of the view that it did not hold any other documents falling within the terms of the requests. As previously discussed, the Tribunal has no jurisdiction to hear and determine an application for review where the respondent states that it has provided access to all the documents it holds that fall within the terms of the request for access. 25 The exception is a reference in the letter of 5 October 2005 (event 6) to a refusal to provide access to records of communications between the respondent and Ms Fay Parkinson without Ms Parkinson's authority. The Ombudsman's letter of 31 October 2006 refers to the claim that such documents are exempt under clause 6(1) of Schedule 1 to the FOI Act as their release "would involve the unreasonable disclosure of information concerning the personal affairs of a person (whether living or deceased)", and is consistent with the position taken by the respondent in its letter of 9 May 2006 forwarding documents to the Ombudsman in response to the notification of the complaint lodged by the applicant. Details of this correspondence are provided in this letter. 26 In conclusion, the Tribunal has jurisdiction to review the respondent's determination not to provide access to correspondence between Ms Parkinson and the respondent, as notified in its determination dated 5 October 2005. The matter should be listed for directions for determination of the substantive issues. Orders 27 The matter is to be listed for further directions.