CITATION: McGuirk v Attorney General's Department of New South Wales [2009] NSWADT 232 DIVISION: General Division APPLICANT Michael McGuirk PARTIES: RESPONDENT Attorney General's Department of New South Wales FILE NUMBER: 073305 HEARING DATES: 21 December 2007 SUBMISSIONS CLOSED: 6 August 2008 DATE OF DECISION: 11 September 2009 BEFORE: Olsson E, SC - Deputy President CATCHWORDS: External review LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Simpson v Director General, Department of Education & Training [2000] NSWADT 134 CASES CITED: YG and GG v Minister for Community Services [2002] NSWCA 247 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 APPLICANT In person REPRESENTATION: RESPONDENT J McDonnell, solicitor 1. The Tribunal affirms the decision of the Agency pursuant to s. 63(3)(a) of the ADT Act ORDERS: 2. The Tribunal dismisses the application in respect of the documents produced under request (ii) and (iv) pursuant to s.73 (5)(g)(ii) of the ADT Act as lacking in substance 3. Each party pay its own costs. Operation of this order is stayed for 14 days to enable the parties to make submissions as to costs if they wish any other order to be made. REASONS FOR DECISION The proceedings 1 The matter before the Tribunal arose as a result of an application made to the Department of the Attorney-General ("the Agency") pursuant to the Freedom of Information Act 1989 ("FOI Act") on 6 August 2007 and noted as 'filed' on 8 August 2007. An application for internal review was made to the Administrative Decisions Tribunal ("the Tribunal") on 3 September 2007 pursuant to s.24 (2) of the FOI Act on the basis that the Attorney General's Department failed to determine the original application within 21 days after receipt of the application (that is, by 28 August 2007). 2 A further application was made on 31 August 2007 to the Attorney General's Department (as the Agency). 3 The Agency conducted an internal review pursuant to s.34 (4) of the FOI Act as if it were an (original) application for access to documents. Ms Maureen Tangney, the Acting Director General of the Agency, made the internal review determination by the Agency on 6 September 2007. It recorded that the Applicant had sought access to the following documents: (i)Copies of the ADT hearing lists for the following days: Wednesday 11 July 2007, Thursday 12 July 2007, Friday 13 July 2007 and Friday 27 July 2007 ("request (i)") (ii)Copy of the email which [the Applicant] sent to the Tribunal on 31 July 2007 subsequently annotated by an officer of the Tribunal, on which the reasons for rejecting [the Applicant's] request for access to the Tribunal hearing lists for Wednesday 11 July 2007, Thursday 12 July 2007 and Friday 13 July 2007 and/or instructions in respect of that request are recorded ("request (ii)") (iii)Copy of all email correspondence between the President of the Tribunal and the Office of the New South Wales Ombudsman from 1 January 2005 to the present which meant the following search criteria (in the alternative) containing the words: "McGuirk" and/or "Cianfrano" and/or "University" and/or "UNSW" and/or "Protected" and/or "Disclosure(s)" ("request (iii)") (iv)Copy of all correspondence – whether by email, facsimile, ordinary post or otherwise – between the President of the Tribunal and the Office of the New South Wales Ombudsman in regard to the project which was (and/or still is) being conducted by the Ombudsman (or the Deputy Ombudsman Mr Christopher Wheeler) with the title of "Persistent Complainant Project" or similar ("request (iv)") 4 The internal review made available to the Applicant documents in accordance with request (i). 5 The document which was the subject of request (ii) was located and made available to the Applicant. 6 The internal review noted that with respect to request (iii) a reasonable search was made using equipment usually available to the Agency for retrieving stored information, by accessing the Tribunal President's email account and identifying email messages to or from the Office of the New South Wales Ombudsman containing the words: "McGuirk" and/or "Cianfrano" and/or "University" and/or "UNSW" and/or "Protected" and/or "Disclosure(s)" in the subject line. No documents were located and accordingly the Agency advised that no documents were held as described at request (iii). 7 With respect to request (iv) ten documents were located and provided to the Applicant. Four of the documents however were released with deletions said to have been made pursuant to s.25 (1)(a) and (4)(a) and clause 6 (1) of Schedule 1 to the FOI Act. The deletions were said to have arisen for two reasons: in respect of documents 2, 3 and 4, the documents were emails each of which attached a document entitled "Article – Dealing with Difficult Applicants – January 2007". The document was said to be a draft article prepared by the New South Wales Ombudsman's Office concerning the development of policy and management strategies for dealing with applications under the Freedom of Information legislation including ways in which government agencies and external bodies can more effectively deal with repeat applicants. 8 It was said that the draft articles contained opinion, advice and recommendations obtained or prepared by the Ombudsman's officers in the course of deciding the information and advice to be included in the article. It was said that the final article was yet to be published. 9 The New South Wales FOI manual published in August 2007 by the New South Wales Department of Premier and Cabinet and the New South Wales Ombudsman provides guidance about the kind of documents provided by the term "Internal Working Documents". At clause 13.1.18 the manual provides: "The deliberative process would therefore be its [Agency] thinking processes eg the process of reflection and wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters would come within this description. Clause 13.1.19 – decision making and policy making processes are also protected. This would include keeping secure advice and recommendations which help the deliberative process occur." 10 Ms Tangney determined that to the extent that the documents which were attached to the emails were in fact drafts of an 'article' they were exempted by the Act. However the Agency also noted that pursuant to clause 9 of Schedule 1 to the Act it was required to address whether disclosure of the information contained would on balance be contrary to the public interest. Reference was made to Simpson v Director General, Department of Education & Training [2000] NSWADT 134 and the Agency determined that disclosure of the attachments would be contrary to the public interest. 11 Document 9 was released to the applicant with some deletions made pursuant to clause 6 (1) of Schedule 1 to the Act relating to "personal affairs" because it was said that the document contained names of third parties who had been described as "persistent applicants" by the President of the Tribunal. The NSW FOI manual, paragraph 12.3.19 provides: "Information concerning the following matters could constitute the personal affairs of a person in terms of the first part of the test in clause 6 … (8) private behaviour, personality, reputation." The document was considered to be exempt because granting access would involve the unreasonable disclosure of information concerning the personal affairs of third parties. 12 On 15 October 2007, the Applicant filed an application with the Tribunal pursuant to s.53 of the FOI Act for an external review of the determination of Ms Tangney. 13 After the commencement of these proceedings (the present application), the Respondent released further documents to the Applicant. Those documents are identified in detail in a letter from the Respondent to the Applicant dated 27 November 2007 which is Annexure S to the Statement of Evidence of the Applicant filed on 13 December 2007. 14 Further comment will be made about Annexure S but for present purposes, it suffices to note that it made available to the Applicant the full texts of the documents (identified as 2, 3, 4 and 9) referred to by Ms Tangney in her determination and which had been released with deletions. Therefore all documents that were identified by the Agency in answer to the FOI application have now been released in full to the Applicant. 15 A planning meeting (or directions hearing) was held on 12 December 2007 and a timetable was set for filing and serving evidence. 16 Pursuant to the direction, the Applicant filed the Statement of Evidence (referred to in paragraph 12 above). The Respondent did not file or serve any evidence. 17 A further planning meeting was held on 21 December 2007 and a timetable was set for the filing and service of written submissions. There was no other hearing, the parties having agreed to have the matter determined upon the basis of the evidence and submissions filed and served. 18 The Applicant's application for an external review of the Agency's determination was made on these grounds: (i)Sufficiency of search in respect of Part 3 of FOI application on the basis that the statement "no documents were located" is in clear conflict with the evidence of documents provided in respect of Part 4 of the application. (ii)The improper claim (by the Agency) that certain documents or parts of documents were exempt pursuant to clause 6 and/or clause 9 of the FOI Act, such exemptions not applying to the specified documents. (iii)Purported but improper exercise of the discretion (which in any case does not apply) [sic] conferred on the Agency pursuant to s. 25 (1)(a) of the FOI Act to refuse access to the Applicant to the documents or parts of the documents. 19 Written submissions were received by the Applicant under cover of a letter dated 10 January 2008, 17 March 2008 and 6 August 2008. Submissions were received from the Respondent on 25 January 2008. Submissions in reply were received from eh Applicant by document dated 17 March 2008. 20 By agreement of the parties, the Tribunal reserved its decision until after the delivery of the Court of Appeal's decision in Administrative Decision Tribunal Appeal Panel v Director-General Department of Commerce and Ors [2008] NSWCA 140 (the 'Cianfrano' decision). 21 The Applicant filed and served further written submissions dated 6 August 2008 but filed on 11 August 2008. 22 The Respondent advised by correspondence dated 15 September 2008 that it would not be filing any further submissions. 23 On 22 September 2008 and again on 10 October 2008 the Applicant sought that the matter be relisted for directions on the question of whether or not the Tribunal has or had a conflict of interest with the Crown Solicitor and whether the Crown Solicitor and Tribunal [sic] had fulfilled their obligations to act as the 'model litigant'. 24 The Tribunal declined to relist the matter for directions on the basis that (i) the Applicant's submissions on all points were detailed and articulate and did not appear to warrant any elaboration or clarification and (ii) the Respondent had on several occasions expressed the view that it did not wish to be further heard. I formed the view that no purpose would be served by conducting another directions' hearing and declined to do so. I should add that I took into account the Applicant's comment that an appeal might be the result should the request for a further directions hearing not be made (Applicant's correspondence to the Tribunal dated 9 October 2008) however I consider that it would be inappropriate to accede to the request for no other reason than to avoid appellate proceedings. 25 That said, I have taken into account the matters which the Applicant wished to agitate at the proposed further directions hearing. Putting aside the unsubstantiated allegations made by the Applicant against the Tribunal, its members and employees, the Applicant's real complaint seems to be the perception that the Tribunal has an inherent conflict of interest in exercising the powers bestowed upon it by its empowering legislation. 26 To some extent, there is some force in the Applicant's observation that the Tribunal, being within the compass of the Department of the Attorney-General, is charged with hearing matters about other branches of the same Department but it is a matter for Parliament to rectify if it sees fit and not a matter upon which the Tribunal can act. The Tribunal has an obligation to perform the duties required of it by its legislation. 27 The second general observation to make is that some sympathy might lie with the applicant if there was a scintilla of actual evidence that the Respondent had not acted as a model litigant. When the hyperbole that characterizes the Applicant's correspondence and submissions are distilled from the substance of the Applicant's complaints, there is no evidence which enlivens any reason to believe that the Crown solicitor and its employees have acted improperly in any way. The real issue for the Applicant seems to be the fact that the Respondent did not file and serve any evidence and relied instead on a set of written submissions. It is entitled to so in my view and I reject the contention that the submissions are "clearly substandard" (Applicant's letter of 22 September 2008 to the Tribunal). 28 Dealing with the Applicant's complaints in a logical but not necessarily chronological manner, the following matters arise for consideration: (i)Whether the Tribunal is competent to hear and determine the external review application (paragraphs 98-100 of the Applicant's submissions of 10 January 2008) – the Jurisdictional Point. (ii)Whether the Tribunal is entitled to take into account only the material which was before the earlier decision maker (in this case, Ms Tangney) by virtue of the interpretation to be given to the words "having regard to the material then before it" in s.63 (1) of the ADT Act – Relevant Material Point. (iii)What is the correct and preferable decision with respect to the original application under internal review (s. 63 of the ADT Act) – the Substantive Decision. The Jurisdictional Point 29 s.6 (1) of the FOI Act defines 'agency" to mean a Government Department, public authority, local authority or public office. Each of those terms is then further defined. The ADT is not within the definition of "agency" as it applies to a Government Department or local authority or public office. However, a "public authority" is a defined as a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument unless it is declared by the regulations to be included in a specified agency. 30 The ADT Act provides that the Tribunal is established "by this Act" (s.11) and therefore comes within the definition of public authority. 31 The relevant regulation is the Freedom of Information Regulation 2005 (the Regulation). It provides that each body referred to in Part 3 of Schedule 3 to the Regulation is "declared not to be a separate public authority but is taken to be included in the agency specified in that part in respect of that body". Part 3 of Schedule 3 of the Regulation identifies the ADT next to the Attorney General's Department. 32 Thus the Tribunal is not an agency in its own right but a body that is included in a specific agency, namely the Attorney General's Department. 33 Therefore it is clear that the proper named Respondent in the present proceedings should have been the Department, not the Tribunal, and to the extent that it is necessary to do so, the Tribunal will treat the application as having been brought against the Department since the named Respondent has (i) assumed the Department to be the Respondent (see its submissions and the parties nominated in the Respondent's documents filed in the Tribunal) and (ii) since the Department has been represented and considered itself to be the Respondent although incorrectly named. In those circumstances there can be no prejudice in permitting the Applicant to substitute the correct name of the Respondent. 34 However, the Applicant's submission goes further: he contends that when Ms Tangney made her internal review determination, she was making it for the Department on behalf of the Tribunal. That cannot be the case: there is no element of 'agency' in the sense of 'principal and agent' in the review. The Department was conducting an internal review of its own decision, that is, its decision as principal. 35 The Tribunal is then specifically empowered to conduct an external review of that decision. The principle of nemo debet esse iudex in sua propria causa does not arise. 36 The Tribunal is satisfied that it has the relevant jurisdiction pursuant to s. 53 of the FOI Act and s.63 of the ADT Act to hear and determine the present proceedings. The Relevant Material Point 37 The second matter for determination is the relevant material which it can consider, the tension arising between the material before Ms Tangney and the material now before the Tribunal. The Applicant contends that the Tribunal may not have regard to the Respondent's letter of 27 November 2007 under cover of which unexpurgated versions of the documents identified by Ms Tangney as documents 2,3 4 and 9 were provided to the Applicant, together with the 10 documents which were expressed to arise pursuant to request (iii) of the Applicant in his original FOI application. For the record those 10 documents were the same 10 which were provided in answer to request (iv) in the original FOI application. 38 The Applicant contended that since the letter of 27 November 2007 was not before Ms Tangney at the time of her determination it may not be relevantly before the present Tribunal for consideration in the review of her decision (paragraphs 21 of the Applicant's submissions of 10 January 2008.) 39 The Respondent argued that s.63 in its terms means the Tribunal is to decide the matter on the material before it at the time it decides the application for external review. Moreover, since the letter is only in evidence before the Tribunal as Annexure S of the Applicant's own statement of evidence, and the Applicant wishes that statement to be considered by the Tribunal in the determination of the external review, presumably the Applicant intended the Tribunal to consider the document and its annexures. 40 In any event, s.63 (i) of the ADT Act provides "(1) In determining an application for a review of a reviewable decision, the tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: a)any relevant factual material b)any applicable written or unwritten law [emphasis added] 41 It is unnecessary to consider the effect of the use of the present tense inherent in the word 'is' in the phrase "what the correct or preferable decision is having regard to the material before it". It can only mean that it is the function of the Tribunal to determine the correct and preferable decision at the time it decides the application and not at any other time: YG and GG v Minister for Community Services [2002] NSWCA 247 at paragraph [25]. 42 Furthermore, since s.73 of the ADT Act empowers the Tribunal to inform itself as it thinks fit and that power includes the entitlement of the Tribunal to issue directions as to the receipt of further evidence and or submissions, it is both logical and consistent with the objects of a merits based review that the Tribunal is not confined to determine the application based only upon the material before the agency which made the decision which is the subject of the review application. 43 As previously noted, this interpretation is entirely consistent with the filing and service of the detailed statement of evidence by the Applicant, which included a number of documents including the letter from the Respondent of 27 November 2007. In paragraph 22 of the Applicant's written submissions of 10 January 2008, he queries whether the letter of the Respondent of 27 November (mistakenly referred to in the submission as 'September') is "now before the tribunal" but this must only be in the nature of a rhetorical query. 44 The Tribunal therefore is entitled to consider the contents of that letter in its determination and notes that the effect of it was to release to the Applicant the email attachments which had previously been released with deletions and it also released the entirety of an email from the President of the Tribunal to the Deputy Ombudsman of 20 March 2007, a copy of which had previously been made available only with deletions. 45 Therefore the Applicant has, since approximately the end of November 2007, unexpurgated versions of all of the documents which were produced in answer to his requests numbered (i), (ii), (iii) and (iv) of his original FOI application. The Substantive Decision 46 Although it may be unnecessary to decide it given that the documents have now been provided to the Applicant, the Tribunal is of the view that Ms Tangney complied with her obligations under the law. First of all, those parts of documents 2, 3 and 4 that had been deleted related to the consideration of a draft policy that clearly fell within the description of documents which were exempt from the provisions of the FOI Act. As far as that consideration is concerned, Ms Tangney applied the law. 47 It is true that there was a further discretion to grant access to exempt documents in appropriate circumstances but there is nothing to show that Ms Tangney failed to exercise that discretion: plainly she did consider it and considered whether it was appropriate to exercise the discretion and decided against it. She gave reasons and there is no error of principle or law disclosed in those reasons. It matters not that another person might have exercised the discretion differently: the only question is whether there was an error of principle, approach or law which such that a preference or correct decision might have yielded a different result and the Tribunal is of the opinion that it would not. 48 The other basis upon which material was deleted related to document 9 and arose because that document mentioned the name or names of certain individuals. In the terms of the Act and Regulations, to release it without deletions would have involved the disclosure of personal information. 49 The Applicant argues that since the material was accessible on the Tribunal website, Ms Tangney must have erred in concluding that the disclosure of the information would be unreasonable. The fact that some personal information might be available or accessible elsewhere does not, to my mind, mean that Ms Tangney erred in deciding to withhold disclosure of something which was, on any view of it, prima facie exempt material. Ms Tangney did what was required of her- she considered the documents, considered the law and directed her mind to the competing arguments of disclosure versus privacy and found in favour of the latter. 50 The Tribunal is obliged to address not only the grounds for refusal of access of documents but also whether to exercise the discretion to release an otherwise exempt document: University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 per Nicholas J. 51 On the material presently before it, it is my view that it is neither appropriate nor helpful nor in the public interest to release draft opinions and submissions of a policy that might or might not be formulated. It is also my opinion that in the proper exercise of a discretion concerning the release of documents which name certain individuals in circumstances where those person would ordinarily expect their identity to be confidential is to delete references which would or would have a tendency to identify those individuals. 52 It follows from the foregoing that in the opinion of the Tribunal both the decision of Ms Tangney with respect to the categorization of certain material as exempt was the correct and preferable decision and the withholding of material that was exempt was similarly an available and appropriate exercise of her discretion. That being the case, the decision was the correct and preferable one. 53 The Applicant's complaints do not end there. He also contends that the original response to the FOI application that "no documents were located" in respect of request (iii) was in clear conflict with the evidence of documents provided in respect of part (iv) of his request: it would appear that at least one document produced in answer to part (iv) also answered the description of documents in part (iii). At paragraph 58 of the Applicant's statement of evidence, he said that he remained dissatisfied with the determination of the application as he believed that the search conducted by the Department in respect of documents falling within the scope of part (iii) of his application of 6 August 2007 had been insufficient because a document that had been released to him under part (iv) that also fell with the scope of part (iii) of the application and yet that document had not been discovered by the search process used by the Agency. 54 The Respondent had replied that it was not possible to search the body of an email, only the subject line, and thus certain email or emails were not discovered. At paragraphs 61 to 66 of his statement of evidence, the Applicant sets out the search he made of his own email correspondence in an attempt to prove that it is possible to search the body of an email for particular words and not just the subject line. The Tribunal has no hesitation in accepting that evidence: that in the particular version of Microsoft Outlook utilized by the Applicant, he was able to conduct the search of his emails as he describes in his statement. 55 He does not depose that he has any particular qualifications in information technology or computer programming or other relevant skill. He does not depose that he has any particular experience other than as a user of the services of Microsoft. 56 The Tribunal is not satisfied in those circumstances that the Applicant has demonstrated that all operating systems and software programmes operate in the same way as his own system and has not therefore demonstrated that the limitation of the search facility in the Respondent's agency was not in fact the case. 57 I accept the submission of the Respondent in paragraph 74 of its submissions that referred to s.23 of the FOI Act. The obligation cast upon an agency is expressed by reference to equipment usually available to that agency for the purpose of retrieving or collating stored information. The agency can only utilize equipment which is capable of performing the enumerated functions that is usually available to the agency at a particular time and is not concerned with whether technology may exist which would perform a particular function. 58 I have turned my mind to the question of whether there are reasonable grounds for the Applicant to believe that there are other documents which should have been disclosed but which were not and whether the search effort has been reasonable in all of the circumstances: see for example Ferns v Commissioner of Corrective Services [2007] NSWADT 298 at paragraph [6-7]. There is no credible material or submission that documents other than those that have been produced in fact exist. 59 The Applicant is silent on this point and the assertion of non-compliance by the Agency appears to be based on the Applicant's general mistrust of the Department; see for example paragraph 27 of his written submissions. Conclusion 60 At paragraph 53 of the written submissions of 10 January the Applicant sets out his grounds for the external review. The first relates to sufficiency of search. As far as the assertion goes that Ms Tangney failed to comply with her obligations under the law, for the reasons outlined above, it is unsustainable. The Tribunal is of the view that the decision made by Ms Tangney was the correct and preferable one and the Tribunal affirms the decision pursuant to s.63 (3)(a). 61 The portions of the documents that were deleted were those that fell squarely within the description of documents described as exempted. For the reasons provided above the Tribunal is of the view that the decision of Ms Tangney was the correct and preferable decision and that the initial exercise of discretion to only release portions of the documents was reasonable in the circumstances. There is no material before the Tribunal that would give rise to the suggestion of any improper activity by the Agency in the provision of material under this FOI application. 62 The Tribunal notes that since commencement of these proceedings, the Applicant has been provided with full copies of the documents that had previously been released to him with deletions. The current complaint, that they should have been released in the first place, is rejected for the reasons outlined above. Since the documents have been made available, it is not appropriate to dispose of the proceedings by way of an order under s.63 (3) and accordingly, the Tribunal dismisses the application in respect of the documents produced under request (ii) and (iv) pursuant to s.73 (5)(g)(ii) as lacking in substance. 63 Neither party made a submission as to costs and I propose to order that each party pay its own costs. I will stay the operation of this order for 14 days to enable the parties to make submissions as to costs if they wish any other order to be made. 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.