McGuirk v University of New South Wales [2009] NSWADT 197

CITATION: McGuirk v University of New South Wales [2009] NSWADT 197

DIVISION: General Division

Applicant: Gerard Michael McGuirk PARTIES: Respondent: University of New South Wales

FILE NUMBER: 073282

HEARING DATES: on the papers

SUBMISSIONS CLOSED: 4 May 2009

DATE OF DECISION: 28 July 2009

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Access to documents – request for advance deposit – refusal to continue to deal with application as advanced deposit not paid

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Court Security Act 2005 Freedom of Information Act 1989

Drake v Minister for Immigration and Ethnic Affairs (1979) 2ALD 60 McGuirk v University of New South Wales [2008] NSWADT 159 CASES CITED: McGuirk v University of New South Wales [2008] NSWADT 302 McGuirk v University of New South Wales (GD) [2007] NSWADTAP 65 McGuirk v University of New South Wales [2007] NSWADT 270

Applicant Representative: In person REPRESENTATION: Respondent Representative: Mr P Singleton, barrister

ORDERS: The decision of the University is set aside under section 63(3)(d) of the ADT Act and Mr McGuirk's FOI application of 17 June 2007 is remitted to the University to be dealt with in accordance with the FOI Act, the findings of the Tribunal in this decision and any other relevant matter.

REASONS FOR DECISION Introduction 1 The applicant, Gerard Michael McGuirk ('Mr McGuirk'), has sought review of a decision of the respondent, the University of New South Wales ('the University'), in regard to his request for access to specified documents pursuant to the Freedom of Information Act 1989 ('the FOI Act'). 2 On or about 15 June 2007, Mr McGuirk made an application to the University seeking access to the following documents: 'All correspondence between the UNSW (and/or current and/or former officers of the UNSW) and the Office of the Ombudsman held on the file which was created by the UNSW in 2003 following the receipt of formal notice from the Ombudsman that he had determined to conduct an inquiry into complaint handling at the UNSW.' 3 On 4 July 2007, the University wrote to Mr McGuirk requesting that he pay an advance deposit of $750.00 by 18 July 2007. This request was made pursuant to section 21 of the FOI Act and the amount of advance deposit requested was the amount the University's FOI Officer, Deborah Gibson ('Ms Gibson'), had estimated to be involved in dealing with Mr McGuirk's application. 4 On 20 July 2007, Ms Gibson wrote to Mr McGuirk and advised him that the University had determined, pursuant to section 22 of the FOI Act, to refuse to deal with his FOI application as, Mr McGuirk failed to pay the amount requested, within the time requested. Mr McGuirk made an application for internal review of this decision under section 34 of the FOI Act as he was entitled to do. On 4 September 2007, the University Executive Officer, Mr Michael Milne ('Mr Milne'), completed the internal review and affirmed the decision that had been made by Ms Gibson. It is this decision that is the subject of review in this application. History of this application 5 When this application first came before the Tribunal, the University raised a jurisdictional issue. A similar issue was raised in regard to 3 other applications for review of decisions by the University under the FOI Act that Mr McGuirk had lodged with the Tribunal. By consent, this jurisdictional issue was dealt with as a preliminary issue and it was determined on the papers following the filing and serving of submissions by the parties. 6 This preliminary issue was determined on 2 June 2008: see McGuirk v University of New South Wales [2008] NSWADT 159. In that decision I found that the Tribunal did have jurisdiction to hear and determine Mr McGuirk's application in so far as it related to the decision of Mr Milne: see at [51]. As Mr McGuirk's application for review had not sought review of this decision, an order was made giving him leave to amend his application so as to seek review of this decision. On 4 June 2008, Mr McGuirk lodged such an amended application. 7 On 19 June 2008, directions were made, by consent, for the University and Mr McGuirk to file and serve evidence and submissions, including evidence and submissions in reply. Further directions were made, by consent, on 14 October 2008, including a direction that the matter be listed for hearing on 18 November 2008. It was listed for hearing together with two other applications for review that Mr McGuirk had made. 8 On 18 November 2008, Mr McGuirk made an application that I recuse myself from hearing and determining the three matters listed for hearing that day. A similar application had previously been made by Mr McGuirk in regard to the other two review applications listed for hearing that day (i.e. file number 083002 and 083009). These earlier interlocutory applications by Mr McGuirk were determined by me on 11 November 2008: see McGuirk v University of New South Wales [2008] NSWADT 302. During the course of argument on 18 November 2008, Mr McGuirk informed me that he had lodged an appeal from my decision that day. 9 I nevertheless dealt with Mr McGuirk's interlocutory application as a preliminary issue that day. After hearing from the parties, I refused Mr McGuirk's application that I recuse myself from hearing and determining this application and the other two applications listed that day. I also gave brief oral reasons for my decision. 10 As the hearing time had been primarily taken up with the interlocutory application it was not possible to deal with the substantive issues in the applications listed for hearing that day. However, I did raise with the parties my inclination that, on the basis of the material that had been filed, this application appeared to be suitable for determination on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). Mr McGuirk objected to this course. The basis of his objection was that he wished to challenge the affidavit evidence of Ms Gibson. As he had not previously raised this issue in the material he had filed, I made a direction that Mr McGuirk file and serve a list of the objections he had to the evidence contained in the affidavit of Ms Gibson. The application was also set down for further hearing on 19 December 2008. 11 Mr McGuirk filed lengthy submissions on 5 December 2008. These included his objections to the affidavit evidence of Ms Gibson. 12 Prior to the 19 December 2008 directions hearing, Mr McGuirk informed the Tribunal that he was unable to participate in this hearing. At the time he was the subject of an exclusion order under the Court Security Act 2005, which prohibited him from attending the premises of the Tribunal. He was however, informed that he could appear by telephone but he advised the Registry that he was unable to do so. In light of this I made orders on the basis of the papers and these were communicated, in writing, to the parties by the Registrar. 13 Further directions were made on the papers on 26 February and 19 March 2009 and the parties were informed of these in writing by the Registrar. 14 On 18 March 2009, the Appeal Panel hearing the appeal lodged by Mr McGuirk in regard to my decision of 11 November 2008 (see paragraph 8 above), made an order staying the further conduct of the review applications the subject of the appeal. The order remains in effect until the Appeal Panel determines the appeal. As the issues raised by Mr McGuirk in this review application are similar to or the same as those he had raised in those applications that are before the Appeal Panel, I formed the view that it was inappropriate for me to also deal further with this review application pending the determination of the appeal. The parties were advised of this by the Registrar. 15 On 7 May 2009, this review application was again listed for directions following correspondence received from Mr McGuirk in early April 2009. It was listed together with other review applications that were not the subject of appeal. At this directions hearing, by consent, the parties agreed that this application was to be determined on the papers pursuant to section 76 of the ADT Act. The issues 16 The primary issue for determination in this matter is whether the decision of Mr Milne to refuse to deal with Mr McGuirk's application is the correct and preferred decision having regard to the applicable law and the relevant material; see section 63 of the ADT Act. 17 The issue, in my opinion, is essentially academic as the University subsequently dealt with a subsequent FOI application from Mr McGuirk for exactly the same documents. In doing so it did not request an advance deposit nor did it determine to charge him for the time spent in dealing with his application. 18 However, the University's approach to this application was for Mr Milne's decision to be set aside and the matter be remitted for further consideration by the University in accordance with directions to the effect that the University request an advance deposit of no more than $480 and that Mr McGuirk be given no less than 21 days within which to make this deposit. 19 Mr McGuirk's contention is that the University's handling of his FOI application and the decisions in regard to it were unreasonable and its officers (i.e. Ms Gibson) had failed to exercise in good faith their respective functions under the Act and that the Tribunal should bring these matters to the attention of the relevant Minister pursuant to section 58 of the FOI Act. He also pressed the Tribunal to order that the University grant him access the documents he had requested. The legislation 20 Section 16 of the FOI Act gives every person a legally enforceable right to be given access to an agency's documents in accordance with the Act. Section 17 of the FOI Act sets out what is required in making an application for access under the Act. One such requirement is the payment of an application fee as determined by the agency (see paragraph 17(c) of the FOI Act). This application fee is determined in accordance with the Premier's guidelines as set out in the Freedom of Information (Fees and Charges) Order 1989 ('the fees and charges guidelines'). Currently, the guidelines provide for a fee between $20 and $30. 21 Subsection 24(1) of the FOI Act requires the agency to consider an application for access to a document and determine whether; (a) to grant or refuse access to the document, (b) if access is to be granted whether a charge is payable by the FOI applicant in respect being given access, and (c) whether any charge is payable by the FOI applicant in respect to the agency having dealt with the application. Where an agency determines to impose a charge on the FOI applicant, the charges must accord with those set out in the fees and charges guidelines. Currently, the guidelines provide for a $30 per hour processing fee. However, where the FOI applicant is a natural person who is seeking access to documents concerning his/her personal affairs a processing charge does not apply for the first 20 hours. The guidelines also make provision for the reduction of fees and charges in particular circumstances: see section 6 of the guidelines. In this application the documents for which Mr McGuirk sought access did not relate to his personal affairs. Nor is there evidence of him seeking a reduction of fees or charges. 22 Where an agency makes a determination under subsection 24(1) of the FOI Act and the FOI applicant is dissatisfied with that decision, he/she has a right to seek internal review of that determination: see section 34 of the FOI Act. And if dissatisfied with the agency's determination on internal review, the FOI applicant can seek external review of the determination by the Ombudsman and the Tribunal: see sections 52 and 53 of the FOI Act. That is, a determination by an agency to impose a charge for dealing with an FOI application is reviewable by internal review within the agency and then by the Ombudsman and or the Tribunal. 23 Subsection 21(1) of the FOI Act gives an agency the discretion to determine to request that an FOI applicant pay an advance deposit towards the costs involved in the agency dealing with or processing the application. However, a request can only be made if the agency forms the view that dealing with the FOI application will exceed the application fee amount. If the agency does form this opinion, then it can only request an advance deposit amount, which does not exceed its estimate of the costs of dealing with the FOI application. Subsection 21(4) requires the agency to give the FOI applicant written notice of the request, which must set out the basis on which the amount of the deposit was calculated. 24 Subsection 21(5) of the FOI Act provides that 'the amount of an advance deposit requested by an agency in respect of an application shall be paid to the agency within such period of time as the agency may specify in the request.' 25 It is well accepted that a determination by an agency to request an advance deposit under section 21 of the FOI Act is not a decision that can be reviewed internally under section 34 or externally by the Tribunal under section 53: see McGuirk v University of New South Wales (GD) [2007] NSWADTAP 65 at [18]. Any advance deposit that is paid must however be taken into account after the agency has processed the FOI application and made its determination, including its determination as to the charge that is to be paid by the FOI applicant for dealing with the application or for granting access to the documents requested. As mentioned above, the determination in regard to the charge is a reviewable decision. 26 Where an FOI applicant does not pay the requested advance deposit, within the time requested by the agency, the agency is given a discretion to make a determination under subsection 22(1) of the FOI Act to refuse to continue to deal with the FOI application. A determination under this subsection is reviewable internally and also externally: see subsection 22(6) of the FOI Act. 27 As mentioned above, this application arises from the decision of Ms Gibson, pursuant to subsection 22(1), to refuse to continue to deal with Mr McGuirk's FOI application. On internal review Mr Milne affirmed this decision. There is no dispute that Mr McGuirk was given the requisite under section 21 of the FOI Act and that this notice set out the basis on which the advance deposit amount had been calculated. 28 It is not disputed that the onus is on the University to establish that its determination to refuse to continue to deal with Mr McGuirk's FOI application is justified: see section 61 of the FOI Act. The evidence 29 The only evidence relied on by the University in support of its determination is the affidavit of Ms Gibson, sworn on 20 August 2008. It was Mr McGuirk's contention that the majority of the matters contained in Ms Gibson's affidavit were irrelevant. In my opinion, this is not correct. Ms Gibson's evidence about the two subsequent FOI applications by Mr McGuirk and the manner in which they were dealt with by the University are directly relevant as they involve the same documents and similar issues. It is necessary to deal with the evidence in regard to these two subsequent FOI applications. 30 In response to the second FOI application (made on 25 October 2007), Ms Gibson re-iterated her earlier determination and requested that Mr McGuirk pay the advance deposit. To the extent this second FOI application of Mr McGuirk sought access to other documents, Ms Gibson dealt with this aspect of the application and made a determination under subsection 24(1) of the FOI Act in regard to them. Her determination in regard to these other documents did not involve a charge for the time spent in dealing with this aspect of the second FOI application. Mr McGuirk sought internal review of this determination and then sought external review by the Tribunal. I note that this application is file no 083009 and is one of the applications that were stayed by the Appeal Panel in March 2009 (see paragraph 14 above). 31 In regard to the documents that are the subject of this application and which for which access had also been included in his second FOI application, Ms Gibson determined to 'extended' the date by which Mr McGuirk was to pay the earlier requested advance deposit amount of $750. When Mr McGuirk did not pay the advance deposit within the time requested (it is noted that this date was further extended), on 2 January 2008, Ms Gibson determined not to continue to deal with this part of his second FOI application pursuant to section 22 of the FOI Act. 32 On 24 January 2008, Mr McGuirk made his third FOI application. This application was in exactly the same terms as the documents the subject of this application. No additional documents were requested. In her letter of response, dated 18 February 2008, having noted that the same documents had been the subject of his earlier requests, Ms Gibson said that while she had begun processing his application 'the costs of the application will substantially exceed the $30 application fee' and that 'it is likely that there will be charges for access to the documents.' 33 Ms Gibson said that it took her 30 hours to process this third FOI application. She identified 104 documents falling within the terms of the request and she determined, on 1 May 2008, to grant Mr McGuirk access to 8 documents in full and 1 document in part. She determined to refuse Mr McGuirk access to the remaining 95 documents on the grounds that they were exempt under clause 6, 10, 13 and/or 20(1)(d) of Schedule 2 of the FOI Act. However, Ms Gibson's determination did not include a charge for the time it had taken her to deal with this third FOI application. 34 For the purpose of this application, Ms Gibson said that having now dealt with Mr McGuirk's third FOI application it would not take her as long to deal with his initial FOI application (i.e. the FOI application the subject of this review application). Her revised estimate was that it would only take her 16 hours and not 25 hours as previously estimated. Consequently, the advance deposit amount was reduced from $750 to $480. 35 On 20 October 2008, Mr McGuirk had filed lengthy submissions on the 'evidence' and other matters. The content of the submissions centred on alleged conduct of the University generally and Tribunal's obligations under section 73 of the ADT Act and section 58 of the FOI Act in regard to that conduct. The allegations were not new nor was the inappropriateness of the tone in which they were made. They did not deal with the evidence of Ms Gibson. To the extent they did not deal with the issues relevant to this application it is also unnecessary for me to deal with them any further in these reasons for decision. Consideration 36 I have previously considered factors relevant to the exercise of the discretion vested in an agency (and the Tribunal on review) in determining to refuse to deal with an FOI application under section 22 of the FOI Act: see McGuirk v University of New South Wales [2007] NSWADT 270 at [73] to [75]. It is unnecessary to repeat these as the University's submission is to the effect that Mr Milne's decision is not the correct and preferred decision and should be set aside and remitted in accordance with section 63(3)(d) of the ADT Act. 37 It is well established that in its external review jurisdiction, the Tribunal makes its determination on the basis of the material that in now before it and not on the basis of the material that was before the decision maker, whose decision is the subject of review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2ALD 60 at 77. 38 The orders proposed by the University may, in the ordinary course of events, be permissible under section 63(3)(d) of the ADT Act. However, in the circumstances of this application they are arguably unreasonable as it will in effect enable the University to make another request for an advance deposit to deal with an FOI application made by Mr McGuirk that it has already dealt with and for which it had decided not to request an advance deposit or to impose a charge for dealing with the application. 39 At the same time, having in essence had his FOI application determined by reason of his subsequent FOI application (i.e. the third application) it is equally arguable that it is unreasonable for Mr McGuirk to require the University to now deal with his earlier FOI application. This is especially so where there does not appear to have been any change in circumstances since the University made its determination in regard to the third FOI application by McGuirk. As indicated above, if he was dissatisfied with the determination of the University he had a right of internal review and also external review in regard to that determination. There is no material before the Tribunal if he did exercise that right. 40 The FOI Act is silent on repeat FOI applications by applicants to the same agency for access to the same category of documents. This does not mean that an agency is prevented from rejecting a subsequent FOI application by the same applicant for the same document on the grounds of an abuse of process. Each application must of course be considered in light of its particular circumstances. In this case, the University did deal with Mr McGuirk's subsequent application. 41 In this review application, Mr McGuirk's submissions are primarily focused on the conduct of Ms Gibson. That conduct Mr McGuirk contended amounted to a failure by her to deal with his FOI application in accordance with her obligations under the FOI Act. He acknowledged the right of the University, through Ms Gibson, to request an advance deposit under section 21 of the Act. He correctly identified this as a statutory power which must be exercised for proper purposes and in good faith. He quoted at length a number of decisions as to what constitutes good faith. He went on to contend that Ms Gibson's decision to request an advance deposit and then to decide not to deal with his FOI application were not made in good faith. He said that the costs incurred by the University as a result of her decisions were far greater than any benefit the University would or might have received by him having paid the advance deposit. In my opinion, the submission is illogical and primarily self-serving. There is no evidence to suggest that Ms Gibson's initial request for an advance deposit was manifestly unreasonable and that she had acted unlawfully. Although one may question the utility of her decision and her subsequent decisions, it does not follow that they were not made in good faith or that they were unlawful. 42 Mr McGuirk also submitted that Ms Gibson did not make her decisions for proper purposes. Again, he cited at length a number of authorities on the issue of 'proper purposes'. These are uncontroversial. However, they do not provide any support for the following statement by Mr McGuirk: 60 However, it is a matter of common public knowledge (of which this Tribunal can take 'judicial notice') that many of the documents to which access is sought under the FOI Act are documents which the relevant agency would rather wish not to be released, because those documents may (and/or do) reveal maladministration (or worse) within the agency concerned.' 43 General statements of such a sweeping nature are of no assistance to the Tribunal. 44 Nor do I accept Mr McGuirk's assertion that Ms Gibson's decisions and evidence were made with the intention to divert the Tribunal from its obligations to determine the correct and preferred decision. Nor do I find that Ms Gibson has failed to comply with the obligations 'conferred or imposed' on her under the FOI Act when dealing with Mr McGuirk's FOI application. This does not mean that the Tribunal finds that her decisions were necessarily correct or incorrect. Her decisions are not the subject of review in this application. 45 I do not propose to deal with the other matters in Mr McGuirk's submissions as many have no relevance to the matters in issue in this application. Conclusions 46 The decision that is the subject of review in this application is that of Mr Milne. It was a decision under section 22 of the FOI Act to refuse to deal with Mr McGuirk's FOI application of 15 June 2007 as he had failed to pay the requested advance deposit. The University, on whom the onus rests, has submitted that the decision is not the correct and preferred decision and should be set aside under section 63(3)(d) of the ADT Act. 47 On the basis of the material before the Tribunal I agree with that submission. However, for the reasons I have stated I do not agree that it is appropriate for the Tribunal to make further directions or recommendations in the form submitted by the University. Accordingly, it will remain a matter for the University to decide, in accordance with its obligations under the FOI Act as to how it will progress Mr McGuirk's FOI application of 15 June 2007 in light of what has occurred since then. Any decision that is made and which is reviewable can then also be dealt with in accordance with the provisions of the FOI Act. 48 At this stage, having determined to set aside the decision the subject of review, I do not believe the Tribunal has any jurisdiction to deal with Mr McGuirk's FOI application any further. It certainly does not have jurisdiction, as contended by Mr McGuirk, to order the University to grant him access to the documents the University determined to refuse him access to in its determination of his third FOI application. 49 On the basis of my findings about the conduct of Ms Gibson in dealing with Mr McGuirk's FOI request it is unnecessary for me to consider any further Mr McGuirk's submissions in so far as they relate to section 58 of the FOI Act. Orders The decision of the University is set aside under section 63(3)(d) of the ADT Act and Mr McGuirk's FOI application of 17 June 2007 is remitted to the University to be dealt with in accordance with the FOI Act, the findings of the Tribunal in this decision and any other relevant matter.