CITATION: Rozenauers v Lane Cove Council [2010] NSWADT 29 DIVISION: General Division APPLICANT Inga Helen Rozenauers PARTIES: RESPONDENT Lane Cove Council FILE NUMBER: 093159 HEARING DATES: On the papers SUBMISSIONS CLOSED: 16 November 2009 DATE OF DECISION: 1 February 2010 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Access to documents – adequacy of search – jurisdiction - referral of matter to Ombudsman 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: Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 Damorange Pty Ltd v Roads and Traffic Authority [2008] NSWADT 309 Retain Beacon Hill High School Committee Inc v Landcom [2008] NSWADT 283 APPLICANT D Ross, solicitor REPRESENTATION: RESPONDENT I Naylor, Agent ORDERS: The proceedings are dismissed. REASONS FOR DECISION 1 The applicant applied to Lane Cove Council ("the Council") under the Freedom of Information Act 1989 ("the FOI Act") requesting access to a number of documents held by the Council. The Council's Manager – Governance, Mr Ian Naylor, determined the application. 2 Mr Naylor determined to grant the applicant "full access to all of the Council records in relation to DA981287 and DA108170 as contained in the attached "Schedule of Documents", with the exception of the removal of any personal information such as e-mail addresses and phone numbers of third parties". He noted: 1. All minutes, Reports and Resolutions with regards to this matter are on the Development Application file for DA981287. 2. All instructions, advice and statements to Council's Solicitors in relation to this matter are on the Development Application file for DA981287. 3. There is no documents for safe keeping at Council's Solicitors offices. 4. The Report by R. A. Walls Construction dated 14 Feb 2008, was sent by mail to Council on 20 February 2008 and has been filed on DA981287 (listed in the Schedule of Documents as document no. 259). A processing fee under the Freedom of Information Act applies of $270 (incl. GST), being 8 hours of staff time to peruse, read and print documents relating to your request. The amount of $30 has already been paid. Upon payment of the remaining $240, copies of the requested documents will be provided to you from Council's Front Counter. 3 The applicant applied for an Internal Review of Mr Naylor's determination. She asserted that she had been: - refused access to a document - refused access to past of a document - charged too much 4 In her Internal Review application she provided an attachment setting out a Schedule of documents and requested photocopies of each of those documents. 5 The Council's Executive Manager - Corporate Services, Craig Wrightson, determined the Internal Review application. Mr Wrightson determined to grant the applicant full access to all documents held by the Council and photocopies of each document referred to in the attachment to her Internal Review application. However, Mr Wrightson indicated that the Council does not hold some of the documents that the applicant identified in her schedule and therefore they could not be released. 6 The applicant has applied to the Tribunal for external review of the Council's determination. 7 The matter came before me for a planning meeting on 14 July 2009. Mr Fegan represented the applicant at that planning meeting and Mr Naylor appeared on behalf of the Council. Mr Naylor again asserted that the applicant has been given access to all the documents that the Council holds that fall within the scope of the FOI request. Mr Naylor applied for dismissal of the application on the basis that it is outside the scope of the Tribunal's jurisdiction. 8 Mr Fegan asserted that the Council had previously made the same assertion that it did not hold further documents but that further searches had revealed other documents that had not been released. He applied for an order that the matter be referred to the Ombudsman. The parties agree that the question of referral be determined on the basis of the material filed by the parties without the need for hearing. Applicable legislation 9 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. 10 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. 11 Section 25(l)(a) of the Act provides that an agency may refuse an applicant access to a document that is an "exempt document". 12 Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that its determination was justified. 13 Section 39 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides: 39 Inter-relationship between Tribunal and Ombudsman (1) The President and the Ombudsman may enter into arrangements regarding any of the following: (a) matters that the Tribunal will refer to the Ombudsman where it considers that the matter can be the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 and that it would be more appropriate for the Ombudsman to deal with the matter, (b) matters that the Ombudsman will refer to the Tribunal where the Ombudsman considers that the matter can be the subject of an application for a review to the Tribunal and that it would be more appropriate for the Tribunal to deal with it, (c) matters that are the subject of an application to the Tribunal and that are also the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974, (d) the co-operative exercise of the respective functions of the Tribunal and Ombudsman. (2) The President and the Ombudsman are jointly to cause notice of any arrangements entered into under this section to be published in the Gazette as soon as is practicable after they are entered into. However, a failure to publish any such arrangements does not affect their validity. (3) The Tribunal and the Ombudsman are empowered to exercise their functions in conformity with any relevant arrangements entered into under this section. (4) An application may be made to the Tribunal for a review of a reviewable decision whether or not a complaint has been made to the Ombudsman in relation to the decision. (5) Without limiting subsection (3): (a) the Ombudsman may (despite anything in the Ombudsman Act 1974) decline, discontinue or defer a complaint made under that Act to give effect to an arrangement entered into under this section, and (b) the Ombudsman may (despite any provision of the Ombudsman Act 1974 but in conformity with this Act) disclose any information to the Tribunal duly obtained by the Ombudsman in relation to any matter referred to the Tribunal to give effect to an arrangement entered into under this section, and (c) the Tribunal may dismiss, adjourn or stay proceedings for an application for the review of a reviewable decision to give effect to an arrangement entered into under this section, and (d) the Ombudsman may entertain any complaint under the Ombudsman Act 1974, or the Tribunal may entertain any application for a review of a reviewable decision, duly made by a person on the basis of a referral under arrangements entered into under this section. 14 Section 73 of the ADT Act provides: 73 Procedure of the Tribunal generally ... (5) The Tribunal: … (g) may dismiss at any stage any proceedings before it in any of the following circumstances: … (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance The Applicant's case 15 The applicant contends that she has not been granted access to all documents held by the Council. The Council has previously referred to documents that it holds but now asserts that those documents do not exist. An example of this category of documents is "Documents relating to the proceedings in the Land and Environment Court including legal advice and instructions". The applicant contends that Council's correspondence specifically referred to legal advice, instructions to solicitors and the Land and Environment Court proceedings. She says that despite those references, the Council has not provided a schedule in respect of the documents held by the Council's Solicitors. 16 The applicant asserts that the documents that she seeks have not been provided. She says that no advice has been given that they do not exist. In the alternative she contends that her application has not been properly processed. 17 She says that the Council has paid Marsdens Solicitors Legal costs in the sum of $21,086 for conducting the Appeal. She further says that pursuant to Rule 8.5.1 and Rule 8.5.2 of the NSW Solicitor's Rules relating to the "Ownership of clients" documents Council is entitled to and is the owner of any and all documents in the possession of Marsdens solicitors relevant to this FOI application. 18 Whilst the applicant says that she is not satisfied as to the adequacy of the search conducted by the Council, she accepts that the Tribunal does not have jurisdiction to enquire into this issue. 19 However, the applicant seeks that the matter be referred to the Ombudsman by the ADT, to investigate the failure to produce the documents sought and to assist the Respondent in locating the outstanding documents and records and that in the interim that the matter be the subject of a stay of proceedings. 20 The applicant relies on the decision in Retain Beacon Hill High School Committee Inc v Landcom [2008] NSWADT 283 where Deputy President Handley considered a request for referral to Ombudsman. At paragraph [17] of that decision the Deputy President discussed the arrangements entered between the President of the Tribunal and the Ombudsman pursuant to section 39(1) of the ADT Act. The arrangements are pursuant to a Memorandum of Understanding ("MOU") entered into between the Tribunal and the Ombudsman in December 2006. The MOU provides that the Tribunal will only formally refer a matter to the Ombudsman pursuant to s section 39(1) of the ADT Act with the consent of the applicant and the Ombudsman. The types of matters that may be referred to the Ombudsman include Freedom of Information matters where there is a denial of the existence of documents by an agency and the Ombudsman could rely on its search and investigative powers (including claims that documents have been lost, destroyed or never existed). 21 The applicant says that she has consulted with the Ombudsman's Office and that they have indicated that the referral would be accepted. The Council's case 22 The Council asserts that it has released all the documents held that are relevant to the application. Small parts of some documents have been deleted on personal affairs grounds. The Council asserts that no documents sought by the applicant have been withheld. It says that where specific documents have been requested and not released it is because the Council has searched its records and that it does not hold the documents. 23 The Council contends that the application is substantially similar to an earlier application to the Tribunal (File No. 083324). The earlier application was withdrawn and dismissed after it became apparent that the only issue was sufficiency of search, a matter outside the Tribunal's jurisdiction. 24 The Council asserts that this matter relates to the sufficiency of the Council's search for documents and that no documents have been withheld by Council. 25 At the Planning Meeting on 14 July 2009, Mr Naylor confirmed that Council staff had not kept any written records at the Council offices of the following: - Instructions to solicitors - Exercise of delegation under the Local Government Act or the Environmental Planning and Assessment Act 1979; or - Advice from solicitors Consideration 26 In Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 the NSW Court of Appeal held 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 an agency in response to a request for access to an agency's documents made pursuant to sections 17 and 18 of the Act. 27 The Tribunal has occasionally referred a matter to the Ombudsman for review pursuant to section 39 of the ADT Act, but it is not bound to do so: Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195. In Damorange Pty Ltd v Roads and Traffic Authority [2008] NSWADT 309 I declined to do so as the Ombudsman did not consented to the reference. 28 In Retain Beacon Hill High School Committee Inc v Landcom Deputy President Handley declined to referred the matter, as the adjournment of those proceedings would be of no utility. The Deputy President stated: "20 The Committee submits that notwithstanding that the Tribunal has no jurisdiction with regard to the adequacy of a search for documents, the wording of the MOU under the heading "Assisting the applicant to make a complaint to the Ombudsman", quoted above, obliges the Tribunal to draw an applicant's attention to the power conferred on the Ombudsman to review matters outside the Tribunal's jurisdiction. Mr Saggers said it is not for the Tribunal to "second guess" the level of an applicant's understanding of the scheme for the review of administrative action enacted by Parliament and, in particular, it would seem, of the role and powers of the Ombudsman in relation to that scheme. 21 In my view, the wording of the first paragraph under that heading clearly contemplates that the Tribunal will need to consider whether a matter could more appropriately be dealt with by the Ombudsman in deciding whether to inform the applicant and draw their attention to the powers of the Ombudsman to review the matter. Given what would appear to be a lower level of assessment required in forming this view by comparison with that required in deciding whether to make a formal referral, and given that the obligation on the Tribunal is solely that of providing information to the applicant, it seems reasonable to assume that the providing of information to an applicant in such circumstances would not be beyond the power of the Tribunal. 22 In the present case, I have no doubt from my dealings with the Committee in a number of proceedings brought in the Tribunal that the Committee is sufficiently aware of the powers of the Ombudsman in such matters and capable of making a complaint to the Ombudsman. As Landcom pointed out in its submissions, it was the Committee that raised the issue of a referral to the Ombudsman and requested that the Tribunal exercise its power to make such a referral. In my view, there would be no utility in this case in providing further information to the Committee concerning the Ombudsman' powers. 23 The Committee also seeks an adjournment of the proceedings to permit an investigation by the Ombudsman, whether, it seems, following a referral by the Tribunal or in response to a complaint lodged by the Committee. In my view, an adjournment would not be appropriate at this stage in these proceedings given that the Tribunal has no jurisdiction in relation to the adequacy of Landcom's search for documents, and given that all the documents identified by Landcom in response to the Committee's FOI application have now been released in full. ... 24 If pursuant, to an investigation by the Ombudsman, further documents were to be identified as being relevant to the original FOI application, then Landcom would need to make a fresh determination about whether to claim exemptions in respect of those documents. Were the Committee to be dissatisfied with the outcome, it could then invoke the review process in the normal way. If, ultimately, the matter were to be appealed to the Tribunal, it would then have jurisdiction to conduct a review in relation to that fresh determination. However, the Tribunal would not otherwise have jurisdiction in relation to that fresh determination. Thus, the adjournment of these proceedings would be of no utility. 25 In view of the fact that all documents identified by Landcom in response to the Committee's FOI application have now been released, and that the Tribunal has no jurisdiction in relation to the adequacy of Landcom's search for documents, there is no further role for the Tribunal to perform in these proceedings. I agree with Landcom that the appropriate course, therefore, is for me to exercise the power of the Tribunal under section 73(5)(h) of the ADT Act to dismiss the proceedings on the ground that they are now lacking in substance." 29 In my view, this matter is comparable to those in Retain Beacon Hill High School Committee Inc v Landcom. For the same reasons, I decline to make the referral that the applicant has requested. 30 In the present case, I have no doubt that the applicant is sufficiently aware of the powers of the Ombudsman in regard to the issues she has raised and that she is capable of making a complaint to the Ombudsman. In view of the fact that all documents identified by the Council in response to the applicant's FOI application have now been released, and that the Tribunal has no jurisdiction in relation to the adequacy of the Council's search for documents, there is no further role for the Tribunal to perform in these proceedings. 31 I agree with the Council that the appropriate course, therefore, is for me to exercise the power of the Tribunal under section 73(g)(ii) of the ADT Act to dismiss the proceedings on the ground that they are now lacking in substance. Order The proceedings are dismissed. 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.