CITATION: Challita v NSW Department of Education and Training (No.2) [2009] NSWADT 174 DIVISION: General Division APPLICANTS Jolanda and Peter Challita PARTIES: RESPONDENT NSW Department of Education and Training FILE NUMBER: 083066, 083155 HEARING DATES: On the papers SUBMISSIONS CLOSED: 24 April 2009 DATE OF DECISION: 8 July 2009 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Freedom of Information Act - access to documents – jurisdiction – sufficiency of search – form of access 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: Cheney v Sydney West Area Health Service [2008] NSWADTAP 29 Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86 McGuirk v Attorney General of NSW [2008] NSWADTAP 81 APPLICANT In person REPRESENTATION: RESPONDENT A Johnson, solicitor ORDERS: 1. The applications are listed for further directions at 2pm on Monday 3 August 2009. REASONS FOR DECISION Background 1 These matters are part of a series of applications brought by the applicants under the Freedom of Information Act 1989 ("the FOI Act") seeking access to documents held by the Department of Education and Training ("DET"). The documents sought concern the operations of the DET's selective schools unit, the Selective Schools process and the role of Selection Committee. 2 The DET has raised an issue concerning the Tribunal's jurisdiction to deal with issues that have arisen in each of these matters. Background - matter no 083066 3 The applicants' original application dated 12 December 2007 included a request for documents in relation to the signed Selection Committee Registers and List and reports relating to Opportunity Class tests held in the Years 2000, 2001 and 2004 and the Selective High School tests held in the Years 2002. Ms Stathis, the DET's FOI Manager, identified a number of documents as falling within the scope of the request. Edited copies of the documents were provided to the applicants however the applicants assert that other documents that fall within the scope of the request ought to exist and should be able to be located. 4 The applicants assert that the missing documents are crucial documents in relation to the Selective Schools process and the role of Selection Committee members and that those documents are required to be retained under the State Records Act. 5 The DET has asserted that the documents that were located are the only documents that it holds falling within the scope of the applicants' request. 6 At a planning meeting on 11 December 2008, the applicants pressed for access to what they allege are the complete copies of the documents sought. The respondent says that the Tribunal has no jurisdiction to consider this issue. 7 I made directions for the parties to file submissions on this point and for the matter to be dealt with on the papers. 8 The DET agreed to provide the Tribunal with the originals of some documents that are identified as falling within the scope of the application and agreed that the applicants could have access to inspect and copy those documents. The DET asserts that copyright restrictions do not allow it to agree to provide photocopy access to some other documents that have been provided to the Tribunal, although the DET agreed that the applicants could have access to inspect those documents. 9 The applicants have disputed the DET's assertion that copyright restrictions apply to any of the documents and seek an order for photocopy access. The DET submits that the Tribunal does not have jurisdiction to order that the applicants be allowed to make copies of the original documents. Background - matter no 083155 10 On 18 December 2007, the applicants requested access to three categories of documents. The second category of documents was the report into the Year 7 Placement process in Selective High Schools. Pursuant to consent orders made on 21 November 2008, the respondent provided the applicants with a document entitled Year 7 Placement into Selective High Schools. 11 The applicants claim that the copy of the document that was provided to them is not a complete copy and they have asked to see the original. The respondent says that such a request is outside of the Tribunal's jurisdiction. 12 At the planning meeting on 11 December, I made directions for the parties to file written submissions on the question of jurisdiction, to be prepared jointly with any submissions in matter no. 083066. The Jurisdiction of the Tribunal in relation to documents held by an agency The DET's submissions 13 Ms Johnson submits that the Tribunal has no jurisdiction to deal with the issue of whether an agency has properly identified all of the documents that it holds that are captured by an FOI request. 14 She points to the Court of Appeal decision of Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 ("ADTAP v Commerce"). The Court of Appeal determined 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:" 15 The Court of Appeal's decision was handed down in the context of a determination by an agency that it held particular documents. The implication was that other documents were not held. 16 Basten JA summarised the conclusion of the Court at [103] and [105]: "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." … There is no explicit statement imposing an obligation on an agency to search for documents the subject of an application for access. Nevertheless, there is implicit in s 24 (and other sections) a requirement that the agency will consider an application and that it will search for documents which might fall within its terms. Such an implicit statutory obligation may also be derived from the statement of the primary object of the FOI Act, which is to confer rights on the public to obtain access to information held by the government which is to be achieved "by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government": s 5(1)(a) and (2)(b). However, there is no provision in the FOI Act permitting review of any step taken in the process of considering an application beyond the power to review the determinations identified in s 24 . 17 Ms Johnson submits that the Tribunal cannot review the steps that an agency would take before making a determination. These steps would include searching the agency's files, locating relevant documents and deciding which documents fall within the scope of an applicant's application. The Tribunal can only review the agency's determination to grant or refuse access to particular, identified, documents. 18 She referred to other matters determined by the Tribunal since the Court of Appeal handed down its decision in ADTAP v Commerce. The Appeal Panel considered the implications of the decision in McGuirk v Attorney General of NSW [2008] NSWADTAP 81. The Appeal Panel said that the Court of Appeal's conclusion was "clear and unequivocal in its conclusion" and at paragraph [14] stated: "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." 19 Indeed in Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86, the Appeal Panel said that the Tribunal has no jurisdiction to look beyond the agency's assertion that it had given full access to the only document located, even where a senior officer of an agency had previously said that additional documents falling within the FOI request were held. 20 The DET asserts that in both matters 083066 and 083155, the DET has identified those documents that fall within the applicants' request. The applicant has been given access (in whole or in part) to those documents. The DET's determinations are that no additional documents are held. Ms Johnson submits that the Tribunal does not have jurisdiction to go beyond the DET's determination on that point. She says that the Court of Appeal decision in ADTAP v Commerce makes it plain that the Tribunal cannot consider whether the agency conducted an adequate search for the documents falling within the scope of the applicant's application. 21 In matter no 083155, the applicants ask the Tribunal to consider an original of the report and compare it to the copy that was provided to them. Ms Johnson submits that the only purpose of their request is to confirm the truth of the agency's statement that it holds only that copy of the report. She says that as the request is being made for the purpose of assessing the agency's statement about the documents that it holds, the request is outside the scope of the Tribunal's jurisdiction. 22 In both matters, the DET's evidence is that it does not hold the documents that the applicants have identified. Ms Johnson submits that the Tribunal has no jurisdiction to review the view that the DET does not hold the documents sought. 23 With respect to the issue of the Tribunal's jurisdiction to order the DET to consent to the copying of material that is said to be subject to copyright, Ms Johnson asserts that the Tribunal has no jurisdiction to review a decision about the form that access should take. In support of that assertion she referred to the decision in Cheney v Sydney West Area Health Service [2008] NSWADTAP 29. The applicants' submissions 24 The applicants provided written submissions in response to those provided by the DET. Much of the submission was not relevant to the issue of jurisdiction. That part of the submission that dealt with the jurisdictional issue stated: 11. The respondents are bound by Legislation with regard to their conduct and their actions whilst employed as a public servant. The powers of the Tribunal are set out to ensure that the FOI Act is exercised to the letter of the Law. The letter of the law is not just limited to Jurisdiction. 12. Whilst we understand that in some 'other cases' there have been orders to do with the Tribunal not having Jurisdiction in relation to the matters brought up with regard to 'insufficient search' our application actually refers to 'biased and corrupted search' and we allege that the Selective Schools unit is deliberately withholding and destroying documents that by right we are entitled to under the FOI Act. 13. It has been clear in the history of this matter that there has been obstruction, delay, manipulation and misconduct In relation to the production of documents and handling of FOI applications and that the Department of Education has shown contempt for the Tribunal, the FOI requirements, Policies and Acts. 14. It is our belief that every case is to be determined on its own merits and we ask that the Tribunal look at this case on its own merits and make a determination based on the circumstances surrounding this case. 15. The Tribunal has the power to deal with those who treat it with contempt and to report those who do the wrong thing so one would expect that it would have the power to deal with those who fail in their obligations under the FOI Act and who have a conflict of interests/duties and hold bias in relation to the production of documents and in particular who destroy or withhold documents and treat the Tribunal and the Laws with contempt. 25 With respect to the issue of the DET's refusal to consent to the copying of material that is said to be subject to copyright, the applicants challenge the DET's assertion and submit that no copyright issue arises in regard to those documents. They rely on section 27 of the FOI Act as providing the basis on which the Tribunal could order that access be given in a particular form. They seek the opportunity to view and copy the original documents. Relevant legislation 26 Section 27 of the FOI Act provides: 27 Forms of access (1) Access to a document may be given to a person: (a) by giving the person a reasonable opportunity to inspect the document, or (b) by giving the person a copy of the document, or (c) in the case of a document from which sounds or visual images are capable of being reproduced, whether or not with the aid of some other device—by making arrangements for the person to hear or view those sounds or visual images, or (d) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of sound—by giving the person a written transcript of the words recorded in the document, or (e) in the case of a document in which words are contained in the form of shorthand writing or in encoded form—by giving the person a written transcript of the words contained in the document, or (f) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of a written document—by giving the person a written document so reproduced. (2) If an applicant has requested that access to a document be given in a particular form, access to the document shall be given in that form. (3) Notwithstanding subsection (2), if the giving of access in the form requested: (a) would unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions, or (b) would be detrimental to the preservation of the document or (having regard to the physical nature of the document) would otherwise not be appropriate, or (c) would involve an infringement of copyright subsisting in matter contained in the document, access in that form may be refused but, if so refused, shall be given in another form. (4) If an applicant has requested that access to a document be given in a particular form and access in that form is refused but given in another form, the applicant shall not be required to pay a charge in respect of the giving of access that is greater than the charge that the applicant would have been required to pay had access been given in the form requested. (5) This section does not prevent an agency from giving access to a document in any other form agreed on between the agency and the person to whom access is to be given. (6) An agency may refuse to give access to a document unless any charge payable in respect of dealing with the application, or giving access to the document, has been paid. 27 Section 53 of the FOI Act provides: 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. … (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 (b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies—if: (i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or (ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or (c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49—the determination is to the effect that an agency or Minister refuses to amend the agency's records or that Minister's records, as the case may be, in accordance with the application, 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. ... Discussion 28 I agree with Ms Johnson's formulation of the issues to be determined. 29 The initial issue of jurisdiction arose with respect to the search undertaken by the DET. The applicants have categories the issue as one concerning a 'biased and corrupted search' as distinct from an 'insufficient search'. In my opinion, this distinction is not one that affects the Tribunal's jurisdiction. That is because the DET has asserted that it has identified all the documents it holds that fall within the scope of the application. 30 By virtue of the Court of Appeal decision in ADTAP v Commerce the Tribunal does not have the jurisdiction to direct the DET to search for additional documents other than those it has identified. 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 scope of a request for access. Only the Ombudsman can investigate a complaint that an agency has not properly attempted to locate all relevant documents. 31 As noted, the question of the Tribunal's power in regard to sufficiency of search issues has been considered in several decisions. I agree with the DET's submission in relation to this issue. 32 I also agree with Ms Johnson's submission with respect to the issue of whether the Tribunal can order the DET to consent to the photocopying of material lodged with the Tribunal. In Cheney v Sydney West Area Health Service [2008] NSWADTAP 29 where the Appeal Panel stated at paragraphs [8] – [11]: 8 We deal now with the first ground of appeal which was that the Tribunal erred in refusing to allow Mr Cheney to view the original documents even with the exempt material disguised. By way of background, the reason Mr Cheney says that he made that request was that he alleged that documents obtained from NSW Police had been fabricated and that by comparing those documents with duplicates or copies held by the SWAHS, he would be able to prove that allegation in the Supreme Court proceedings inquiring into his conviction. 9 In relation to this ground we accept the submission of the SWAHS that the Tribunal had no jurisdiction to determine the manner in which Mr Cheney should be given access to the documents. Mr Cheney's application was under section 17 of the FOI Act which allows him to request access to documents held by an agency. The agency's decision not to allow him to view the original documents was made under s 27 of the FOI Act which relates to the forms of access that a person may be afforded. 10 Section 53(3) of the FOI Act sets out the circumstances in which a person is able to apply to the Tribunal for a review of an agency's decision. In particular, section 53(3)(a)(i) says that: 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 11 Neither that provision nor any of the other provisions in section 53(3) give a person a right to apply to the Tribunal for a review of a decision made under section 27 in relation to the form of access. To put it simply the FOI Act does not define a grievance about the manner of access as a matter that the applicant is entitled to seek review in the Tribunal. Consequently, the Tribunal had no jurisdiction review a decision about the form that access should take and similarly the Appeal Panel has no jurisdiction in relation to that matter. 33 In my view, the Appeal Panel decision in Cheney v Sydney West Area Health Service has correctly stated the law in regard to this issue. 34 It follows, in my view, that I have no power to make the order for photocopy access that the applicants have requested. 35 The Tribunal has no jurisdiction to deal with the issues raised by the applicants. Accordingly, those aspects of the applications are dismissed. Costs 36 The Applicants also seek an order for costs against the DET. Ms Johnson has requested the opportunity to argue that issue. The matter should be listed for further directions so that a timetable may be set to resolve that issue and any other outstanding aspects of these applications Order 1. The applications are listed for further directions at 2pm on Monday 3 August 2009. 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