Appeal Panel - Internal CITATION: McGuirk v Attorney General of NSW [2008] NSWADTAP 81 APPELLANT Gerard Michael McGuirk PARTIES: RESPONDENT Attorney General of NSW FILE NUMBER: 079071 HEARING DATES: 24 October 2008 SUBMISSIONS CLOSED: 24 October 2008 DATE OF DECISION: 15 December 2008 BEFORE: Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; Antonios Z - Non-Judicial Member CATCHWORDS: Jurisdiction to review decision that Minister does not hold a document DECISION UNDER APPEAL: McGuirk v Attorney General of New South Wales [2007] NSWADT 280 FILE NUMBER UNDER APPEAL: 079071 DATE OF DECISION UNDER APPEAL: 11/30/2007 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 CASES CITED: Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 APPELLANT In person REPRESENTATION: RESPONDENT A Johnson, solicitor ORDERS: 1.The Tribunal's decision is set aside 2. In substitution for that decision a decision is made that the Tribunal has no jurisdiction to entertain the application. 1 Mr McGuirk has appealed to the Appeal Panel against a decision of the Tribunal. The background to these proceedings is that on 21 November 2006 Mr McGuirk applied to the Attorney-General of NSW, the Hon John Hatzistergos, (the Minister) for access to three documents. The documents he requested, pursuant to the Freedom of Information Act 1989 (FOI Act) were: Submissions to the Attorney General dated 21 April 2004 seeking approval of the Attorney General for the Crown Solicitor to represent officers of the University of New South Wales who had been charged with criminal breaches of section 20 "Protection against reprisals" of the Protected Disclosures Act 1994 Submissions to the Attorney General dated 27 April 2004 seeking similar approval as above. Submissions to the Attorney General dated 1 February 2005, seeking the approval of the Attorney for the engagement of Senior Counsel to represent the defendants in the matter as above. 2 The FOI Co-ordinator responded on 5 December 2006 saying, in part, that: In response to the application searches were commenced to locate any documents held by the Office that fall within the ambit of the request. I hereby notify you under s 28(1)(b) of the FOI Act that this Office does not hold any documents as specified in your request. 3 Following a phone call from Mr McGuirk to the FOI Co-ordinator, the Minister's Chief of Staff, Mr Matthew Chesher wrote to Mr McGuirk on 14 December 2006 saying, in part, that: Although there is no right to an internal review of FOI determinations within a Minister's Office I have reviewed the matter and uphold the determination that this office does not hold any of the documents as specified under your request. 4 Ms Johnson, representing the Minister, advised the Appeal Panel that the documents that Mr McGuirk requested do exist but they are held by the Attorney General's Department and not by the Minister. On 19 December 2006 Mr McGuirk applied to the Tribunal for a review of the decision that the Minister did not hold any of the documents he had requested. Mr McGuirk's submissions before the Tribunal were that the Minister did hold the documents even though they were not physically in his office because he had an immediate right of access to them. Alternatively, Mr McGuirk submitted that the Minister was required, pursuant to s 20 of the FOI Act to transfer the FOI application to the Department which held the documents. 5 The Tribunal determined the application 'on the papers': Administrative Decisions Tribunal Act 1997 (ADT Act), s 76. The Tribunal found that the Minister's decision that he did not hold the document was the correct decision. The basis for that conclusion was that a Minister's documents and an agency's documents are mutually exclusive so that even if the Department holds the documents, they are not documents to which the Minister has an immediate right of access. The Tribunal also found that it had no jurisdiction to consider whether the Minister should have transferred Mr McGuirk's application to the Attorney General's Department. Mr McGuirk has appealed to the Appeal Panel against the Tribunal's decision. 6 After the Tribunal handed down its decision but before the appeal came before the Appeal Panel, the NSW Court of Appeal decided, in summary, that "the formation of an opinion that an agency does not hold a document is not a determination" that the Tribunal has jurisdiction to review: Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 at [135] (the Court of Appeal decision). We brought the parties' attention to this decision at the commencement of the proceedings and gave them an opportunity to make submissions on the effect of that decision on these proceedings. We note that both parties were familiar with the decision. In particular Mr McGuirk had provided detailed submissions in relation to the Court of Appeal's decision in other proceedings before the Tribunal on 11 August 2008. 7 Rather than hearing and determining the appeal, Mr McGuirk submitted that the Appeal Panel should refer a question of law to the Supreme Court for determination: ADT Act, s 118. Mr McGuirk also submitted that the Appeal Panel should bring the conduct in dealing with his FOI application to the attention of the Minister under s 58 of the FOI Act. Issues 8 The initial issues in this appeal are: 1. Does the Court of Appeal decision apply to the circumstances of this case? 2. If so, what is the effect of that decision on the appeal proceedings? 3. Should the Appeal Panel refer the question of law suggested by Mr McGuirk to the Supreme Court pursuant to s 118 of the ADT Act ? 4. Has an officer of the Department failed to exercise in good faith a function conferred or imposed on the officer by or under the FOI Act and, if so, should the Tribunal bring the matter to the attention of the responsible Minister pursuant to s 58 of the FOI Act ? 9 Depending on the answers to the first three questions, it may not be necessary or appropriate to go on to determine the original grounds of appeal. Application of the Court of Appeal decision to the circumstances of this case 10 In its decision in Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 at [19] to [31] the Court of Appeal set out the relevant provisions of the FOI Act. To the extent that they may apply to the circumstances of this case, we repeat them here: [19] The FOI Act provides for an enforceable right of access to documents held by the government. Section 5(1)(a) provides that it is an object of the Act "to extend … the rights of the public … to obtain access to information held by the Government". The means by which the objects of the Act are to be achieved include the conferral of a legally enforceable right by members of the public to be given access to documents: s 5(2)(b). That right is provided for in s 16(1): A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act. An "agency" is defined in s 6 to mean, relevantly, a government department and a public authority. [20] The right conferred by s 16 is exercised by a person making an application in writing for access to an agency's documents, specifying that the application is made under the FOI Act and containing such information as is reasonably necessary for the document to be identified: ss 17(a); (b); and (d). An application fee may be payable: s 17(c). Sections 18(1) and (2) prescribe who is required to deal with an application. Section 18(3) provides that an application shall be dealt with as soon as practicable (or, in any case, within 21 days) after it is received. [21] Section 19 requires an agency to assist an applicant in circumstances where an application made under the FOI Act is either incomplete or wrongly directed. In the case of an application which does not contain sufficient information to enable a document to be identified, the agency shall not refuse to accept the application without first taking such steps as are reasonably practicable to assist the applicant to provide such information: s 19(1). [22] If the application is not able to be dealt with because the document is not held by the agency, but to its knowledge is held by another agency, or is held by the agency but is more closely related to the functions of another agency, the agency must take such steps as are reasonably practicable to assist the applicant to direct the application to the appropriate agency: s 19(2). [23] Section 20 makes provision for the transfer of an application to another agency. Sections 21 and 22 make provision for the payment of advance deposits should the agency so determine. Section 23 extends the operation of the FOI Act to computer-stored documents. [24] Sections 24 and 28 deal with the determination of an application for access to a document and for the notification to an applicant of its determination. Section 25 specifies the circumstances in which an agency may refuse access to a document. As these three sections are central to this Court's determination, they are set out below. Determination of applications (1) After considering an application for access to a document, an agency shall determine: (a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and (b) if access to the document is to be given — any charge payable in respect of the giving of access, and (c) any charge payable for dealing with the application. (2) An agency that fails to determine an application within 21 days after the application is received by the agency shall … be taken to have determined the application by refusing access to the document to which it relates. (2A) Nothing in subsection (2) prevents an agency from determining that access should be given to the document even though more than 21 days have elapsed after the application was received by the agency … [25] Section 25(1) provides for the circumstances in which an agency may refuse access to a document. . . . . . . [28] Once having identified the documents and having made a determination as required by s 24, notice of that determination must be given to the applicant: s 28. That section provides: 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. . . . [29] It is apparent from ss 16–20 that the FOI Act is concerned with the grant of access to documents that an agency has in its possession. Sections 24 and 25 confirm that this is so. Section 24 is predicated upon there being documents in the possession of the agency (subject to the documents more readily being accessible through another agency: ss 19 and 20) that answer the description of the documents specified in the application for access. It thus becomes necessary for the agency to identify the documents in its possession that respond to the request. It is in respect of those identifiable documents that the agency makes a determination as to whether to give or to refuse access. To put the matter another way, the decision-making process envisaged by the FOI Act is based on documents that have been requested in an application. There is nothing in the Act which deals with or specifies how this necessary preliminary aspect of identification of the documents that have been requested is to be carried out. Review of an agency's determination [30] The FOI Act provides for a number of mechanisms of review of the various determinations that an agency may make, or is required to make, under the Act. Thus, there is provision for an internal review of an agency's determination in respect of a freedom of information application: Pt 4; for external review by the Ombudsman: Pt 5 Div 1; and for external review by the Tribunal: Pt 5 Div 2. There is also a limited review by the Supreme Court on grounds not presently relevant: Pt 5 Div 3. [31] The jurisdiction that the Tribunal was asked to exercise in this case was under Pt 5 Div 2 of the FOI Act and in particular under s 53, which provides, relevantly: Right to make a review application (1) A person who is aggrieved by a determination made by an agency or Minister under section 24 … may apply to the Tribunal for a review of the determination. … (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 … if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document, or … and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections. 11 In its decision, the Court of Appeal considered the following question referred to it by the Appeal Panel of the Tribunal: "Is a notification under s 28(1)(b) of the Freedom of Information Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review?" In answer to the question, the Court decided that: a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the FOI Act . b) The formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24. c) The jurisdiction of the Tribunal conferred by s 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 ss 17 and 18 of the FOI Act: 12 Although the decision refers to an agency, rather than the Minister, the relevant provisions of the FOI Act (s 19 – s 33) apply to an application for access to a Minister's document in the same way as they apply to an application for access to an agency's document: FOI Act, s 38. 13 Mr McGuirk submitted that the Court of Appeal decision was not applicable to the circumstances of this case because it applied only to the adequacy of search issue and not to every decision by an agency or Minister that it did not hold a document. In support of that contention he referred to paragraph 18 of the Court of Appeal's decision which states that: Notwithstanding the terms of the question referred, the parties proceeded to argue the question as if the matter in issue was whether a Tribunal has jurisdiction to consider the adequacy of an agency's search for documents. This articulation was accepted by the respondents as appropriately capturing the question that O'Connor J. had determined. I will proceed to consider the matter on this basis. 14 Mr McGuirk's point was that when documents exist (as was conceded in this case) the question is not a sufficiency of search question and the decision of the Court of Appeal is not applicable. While we agree that the factual situation was different in this case, the Court of Appeal was clear and unequivocal in its conclusion. That conclusion was that, regardless of the reason for a determination by a Minister or an agency (under s 28(1)(b)) that it does not hold a document, that determination is not reviewable by the Tribunal. That interpretation is supported by the answers the Court of Appeal gave to the question it was asked and from the following passages from the decision: [68] The other sections of the FOI Act support this conclusion. The terms of s 28 are consistent and, I consider, only consistent with the construction I have given to ss 24 and 25, that is, that a further basis of review is not to be read into the section. Section 28 is concerned with giving a notification of a determination. It is not concerned with a notification or advice or information as to the search that was conducted by the agency to ascertain whether it has documents or knows whether or not documents exist. Section 53 provides for the review of a determination. The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in s 53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a 'determination' within the meaning of s 24(1). Accordingly, the bases for the implication of an additional right of review for the purposes of s 24, in my opinion, do not exist and Smith JM was incorrect in finding that there was such an implication. 15 Basten J summarised the conclusion of the Court at [103]: [103] Concisely stated, the FOI Act envisages that an agency may need to take one or more steps before it can determine whether to refuse or grant access to a document. Those steps must include at least the attempted identification of a document (or possibly documents) falling within the terms of the application, which are documents held by the agency. The formation of a view by a relevant officer that certain documents and no others are held by the agency and fall within the terms of the application, is not a "determination" for the purposes of s 24(1). It is an aspect of the consideration of the application which must be undertaken before such a determination is made. 16 Mr McGuirk's alternative submission was that the decision under review was not a decision under s 28(1)(b). Rather it was a decision that the Minister merely purported to make under s 28(1)(b). He said that the real decision was a deemed refusal to provide the documents under section 24(2). The Tribunal found at [20] that the decision was made under s 28(1)(b). In our view that finding was correct. The Court of Appeal rejected a similar submission to that put forward by Mr McGuirk at [58] to [59]. [58] . . . The FOI Act is an Act that provides a statutory right to access documents. Access can only be granted to a document that exists and is held by the agency to which the application is made. An agency can not grant access to a document that does not exist. The notion itself is nonsensical. The converse is also true: an agency cannot refuse access to a document that does not exist. It can, of course, inform an applicant that a document does not exist, or that it does not have such a document, but that is a different matter altogether. . . . [59] It is not correct, therefore, to construe a statement by an agency that a document does not exist, or that it does not have a document, as a refusal to give access to a document. (Emphasis added.) 17 Mr McGuirk also relied on a written submission he made in other proceedings (073305) McGuirk v Attorney General's Department dated 6 August 2008. Those submissions contain an analysis of the Court of Appeal's decision on which Mr McGuirk relies. There was nothing in those submissions which persuades us that the Court of Appeal's decision does not apply to the facts of the case before the Tribunal at first instance. Effect of Court of Appeal's decision on the current appeal 18 Mr McGuirk submitted that because the Minister had not challenged the Tribunal's jurisdiction at first instance, that question could not be argued on appeal. We agree with Mr McGuirk that Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 stands for the proposition that "a party is bound by the conduct of his case" and that "except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." However, if the issue goes to jurisdiction it must be raised on appeal even if it was not taken at first instance: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186. 19 Mr McGuirk also relied on the decision in Parisienne Basket Shoes P/L v Whyte (1938) 59 CLR 369. That decision concerned the facts on which a court or Tribunal's jurisdiction depends (jurisdictional facts). It was not concerned with the question now before the Appeal Panel. 20 In this case, the Tribunal came to the view that it had jurisdiction based on previous Tribunal decisions. That view was subsequently found to be wrong by the Court of Appeal in Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140. The Appeal Panel must apply the law as it stands at the time the appeal is heard. The consequence of the Court of Appeal's decision is that the Tribunal made an error of law in deciding that it had jurisdiction to review the Attorney General's decision that he did not hold the documents. The Court's determination on this issue is binding on the Tribunal and the Appeal Panel. 21 As it is our view that the Tribunal had no jurisdiction to entertain the application, there is no need to deal with Mr McGuirk's grounds of appeal or to determine whether to extend the appeal to the merits of the Tribunal's decision. Referring a question of law to the Supreme Court 22 Mr McGuirk requested that we refer a question of the law to the Supreme Court pursuant to s 118 of the ADT Act. That question was "What are the Tribunal's obligations in circumstances where a document exists but the agency or Minister makes a decision that it does not hold the document?" 23 In our view it is not appropriate to refer the question suggested by Mr McGuirk to the Supreme Court because, given our decision that the Tribunal had no jurisdiction, that question does not arise. Referral to Minister under s 58 24 Mr McGuirk submitted that we should refer the conduct of Matthew Chesher to the Minister pursuant to s 58 of the FOI Act. Section 58 states that: If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency. 25 The conduct which Mr McGuirk identified as justifying referral was Mr Chesher's failure to transfer his FOI request to the Department. Section 20(1) relates to the transfer of applications and states that: (1) An agency to which an application has been made may transfer the application to another agency: (a) if the document to which it relates: (i) is not held by the firstmentioned agency but is, to the knowledge of the firstmentioned agency, held by the other agency, or (ii) is held by the firstmentioned agency but is more closely related to the functions of the other agency, and (b) if consent to the application being transferred is given by or on behalf of the other agency. 26 This provision, when read with s 38, allows the relevant officer to transfer an application when the Minister does not hold the documents that have been requested and, to the knowledge of that officer, the documents are held by another agency. As long as the second agency consents to the application being transferred the relevant officer may transfer it. While it would have been more efficient to transfer the application rather than requiring Mr McGuirk to lodge a new application with the Department, Mr Chesher's failure to do so does not amount to a failure to exercise in good faith a function conferred or imposed on the officer by or under the FOI Act. There is no basis for inferring that his decision to make a determination rather than transferring the application was a decision made in bad faith. Orders 1 The Appeal Panel's powers on appeals on questions of law are set out in s 114 of the ADT Act: 114 Appeals on questions of law (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal In this case the appropriate order is to set aside the Tribunal's decision and substitute a decision that the Tribunal has no jurisdiction to entertain the application. 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.