Appeal Panel - Internal CITATION: White v NSW Department of Education and Training (GD) [2009] NSWADTAP 72 APPELLANT Christine White PARTIES: RESPONDENT NSW Department of Education and Training FILE NUMBER: 099041 HEARING DATES: 13 November 2009 SUBMISSIONS CLOSED: 13 November 2009 DATE OF DECISION: 4 December 2009 BEFORE: O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non-Judicial Member CATCHWORDS: Freedom of Information – Agency reason for refusal – not a permitted ground – Tribunal corrected misunderstanding – appeal dismissed – Freedom of Information Act 1989, ss 24, 25 DECISION UNDER APPEAL: White v NSW Department of Education and Training [2009] NSWADT 154 FILE NUMBER UNDER APPEAL: 083217 DATE OF DECISION UNDER APPEAL: 06/28/2009 CASES CITED: White v NSW Department of Education and Training [2009] NSWADT 154 APPELLANT In person REPRESENTATION: RESPONDENT P Cribb, solicitor ORDERS: Appeal dismissed REASONS FOR DECISION 1 This decision deals with the second of two appeals, heard together, relating to the decision of the Tribunal in matter no. 083217: White v NSW Department of Education and Training [2009] NSWADT 154 (22 June 2009). 2 The first appeal was made by the Department (file no. 099040). It was resolved on the day of hearing. We will briefly refer to that outcome. 3 The Department's appeal related to the terms of the Tribunal's Order 3. The Appeal Panel accepted that those terms could be read to require the agency to reconsider a large number of documents which the parties had agreed to exclude from the scope of the original request following intervention by the Ombudsman. The access applicant (Mrs White) acknowledged that there had been a compromise, as recorded in paragraph [3] of the Tribunal's reasons for decision. 4 The Appeal Panel suggested a reformulation of Order 3. This was acceptable to the parties. The result is that the agency is to reconsider only those documents in the affected group (documents of the Legal Services Directorate) that are not, prima facie, likely to be the subject of a claim for legal professional privilege. 5 As a consequence, the Department withdrew its appeal. The Appeal Panel immediately directed the Registrar to amend the published orders of the Tribunal below to reflect this outcome. 6 We now turn to Mrs White's cross appeal (i.e. file no. 099041). 7 In its access determination the Department dealt with 572 pages of documents (numbered 1 to 572). The agency released 93 pages, some with deletions; and refused the remainder. On review, the Tribunal upheld the Department's decision as to most of its refusals. 8 This appeal only contests that part of the Tribunal's decision relating to the pages numbered 167-183 for the purposes of the FOI determination. These pages comprise a single document of the Department in the nature of a briefing paper. The Department released parts of pages 180, 181 and 182. It also released the headings to the document as found on page 167. The Tribunal upheld the agency's determination not to grant her access to an unedited version of the whole document. 9 The edited version of page 167 as released shows that the document is a submission for the Director-General, headed Issues relating to [the school] over the last three years (the Submission). 10 The Department said in its determination: 'Only a small part of the documents [sic] contains any matter relevant to your request and access is refused on that basis in full to pages 168-179. Pages 167 and 180 to 182 are released in full except for the deletion of the irrelevant material and the deletion of the name and particulars of a person (not being either yourself or a member of your family) on grounds allowed by clause 6.' 11 Clause 6 is the exemption allowing an agency to release material that would involve an unreasonable disclosure of personal affairs of an individual. Initially the access applicant pressed as part of her appeal the removal of the deletion mentioned. Following a confidential discussion with Mr Cribb, representing the Department, she withdrew this part of her appeal. 12 Her appeal is now confined to the question of whether the Department properly treated the balance of the Submission as 'irrelevant'. Legislation 13 Section 17 sets out the requirements to be met by the access application. The Act then deals with a number of circumstances that might arise in the processing of the application: insufficient information to enable identification of the documents (s 19), documents held by another agency and transfer of request (ss 19, 20), charging of advance deposits and not processing application pending payment (s 22) and alternative provision of information stored in electronic form (s 23). If a document is not held by the agency, and (impliedly) is not a document that can be accessed by way of a transferred application, the agency may give a notice to that effect (s 28(1)(b)). 14 The net result of these provisions, in our view, is that the agency must make a determination under s 24 either granting or refusing, on one of the permitted grounds (s 25), access to documents that fall within the scope of the request, reasonably construed. 15 Mrs White submits that once a document is identified as falling within the scope of the request, it is necessary for the agency to process the request in the manner contemplated by the Act. The agency in this case issued a determination which, in its terms, treated pp 167-183 as falling within the scope of the request, and then declined to deal with most of its pages by declaring them to be 'irrelevant'. This is not a ground for refusal specified by the Act. 16 A document may be a single document from the managerial perspective of an agency, but can, in our view, properly be severed when responding to an access request, depending on the terms of the request, reasonably construed. It is permissible for the agency to say – we have a long document with one part that bears on the subject-matter of your request. 17 In our view, that was what the Department in this case was seeking to convey. 18 While the way the Department expressed itself provides a foundation for the appellant's submission, its intention was clear. The Department was seeking to indicate that the bulk of the document did not fall within the scope of the request. It took as its guide the terms of the original request (which in this respect were not revised later) – i.e. 'all documents … that contain information about my personal affairs'. 19 The request was made in a context where its practical management loomed large for the agency. Mrs White had pressed numerous complaints and concerns with the school and the Department, giving rise to extensive material. Her activities formed part of the broader school environment in the years under notice in the Submission. The Department, in our view, made a fair judgement, consistent with the focus of her request and the objectives of the legislation, in considering, as within the scope of her request, only those pages in the Submission that referred to her role. 20 The Tribunal approached the issue on that basis: '44 I have considered the document identified at pages 167 – 183. With the exception of those parts of the document that have been revealed to the Applicant and the Clause 6 material, I do not agree with the Applicant's assertion that the document falls within the scope of her FOI request. The majority of this document concerns issues unrelated to the Applicant.' 21 In our view, the Tribunal dealt with the matter on the intended basis. Its decision is in substitution for that of the Department. Any imprecision of expression on the part of the Department was cured at that point. 22 We make the following further observations. 23 The Submission was Confidential Exhibit R2 before the Tribunal. It deals with various aspects of the administration and operation of the school in the years 2001-2004. 24 The release of the top part of page 167 was appropriate, and in the spirit of the Act, in that it made clear to the applicant the nature of the overall document within which the part referring to her is found. 25 That part commenced at page 180 under the heading '5. Parent Community'. The first part of this section (spanning most of page 180 and the top of page 181) has been released. The sub-heading which follows, 'Comment', is revealed but not what follows. The same applies to 'Funding Implications', the first of the final two headings both also at page 182. The second of these headings, 'Consultation', is made up of a list being the names of various public servants and their offices. This is revealed. The final text under 'Recommendation' is revealed. 26 The broader document deals with issues relevant to the Department's performance of its responsibilities for the good administration of schools. It is a business document not one relating to Mrs White's personal affairs. 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.