Digwood v Forests NSW [2009] NSWADT 107

CITATION: Digwood v Forests NSW [2009] NSWADT 107

DIVISION: General Division

APPLICANT Terrence Michael Digwood PARTIES: RESPONDENT Forests NSW

FILE NUMBER: 083366, 083365

HEARING DATES: 19 March 2009

SUBMISSIONS CLOSED: 19 March 2009

DATE OF DECISION: 13 May 2009

BEFORE: Molony P - Judicial Member

Freedom of Information Act 1989 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Interpretation Act 1987

Canobolous Heritage Railway Society Inc v General Manager, Bathurst Regional Council [2005] NSWADT 61 CASES CITED: LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50 Sawires v Commissioner of Police [2008] NSWADT 91 Wilmhurst v Vice- Chancellor, Macquarie University [2002] NSWADT 196

APPLICANT In person REPRESENTATION: RESPONDENT L Wimalaratne, solicitor

ORDERS: 1.Mr Digwood's applications under s 57 of the ADT Act to extend the time in which to make the applications are refused 2.The review applications are dismissed for want of jurisdiction.

REASONS FOR DECISION The Applications 1 On 12 December 2008 Mr Digwood filed two applications to review decisions of Forests NSW under the Freedom of Information Act 1989 ('the FOI Act') made on internal review on 14 May 2008 - file number 083365 reviewing determination XX 217 ('the first decision') - and 27 June 2008 - file number 083366 reviewing determination XX215 ('the second decision'). Both applications to review were apparently filed more than 60 days after the internal reviews, and, therefore, outside the time fixed by s 54(a) of the FOI Act for the making of those applications. 2 Mr Digwood disputes that either decision is a sufficient determination to meet the requirements of s 34 of the FOI Act. Rather, he argues that there was a deemed decision in each case to refuse him access to the information he requested. 3 At a planning meeting held on 17 January 2009 a number of preliminary issues were identified going to the issue of the Tribunal's jurisdiction to hear the applications. 4 With respect to both decisions these were: first, whether the operative decisions under review are decisions deemed to have been made under s 34(6) of the FOI Act made by Forests NSW or the actual decisions it made; secondly, if either is a deemed decision, whether the 60 day time limit for seeking to review it in the Tribunal under s 54(a) applies (it was agreed that if the decision is an actual decision s 54(a) applies); and thirdly, if the time limit does apply, whether the Tribunal should exercise the discretion to extend time given to is by s 57 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). In addition there is an issue as to whether Forests NSW revoked the second decision. 5 Section 57 of the ADT Act relevantly provides: (1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (1A) An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. 6 While Forests NSW initially sought to argue that the Tribunal did not have power to extend the time for the making of review applications under the FOI Act, it later conceded that I was bound by the decision of the Appeal Panel in LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50 which found that the Tribunal did have that power. 7 All of those issues were addressed at the preliminary hearing on 29 March 2009. Because that hearing was focussed on the preliminary issues going to jurisdiction these reasons do not deal with the merits of the substantive application. The First Decision 8 Background – Forests NSW provided a chronology of events with which Mr Digwood agreed. 9 On 8 October 2007 Mr Digwood made an FOI request for detailed information relating to hardwood pulpwood pricing in the Eden, SC-Southern and Tumut regions operated by Forests NSW (including the methods used for calculating prices). In his request he referred to a number of relevant, publicly available documents and what he saw as inconsistencies in the information they provided about which he sought clarification. On 15 October 2007 and 11 November 2007 following discussions with Forests NSW, and the examination of other public documents, he amended his requests. 10 On 23 November 2007 Forests NSW determined to release some of the documents to Mr Digwood, but refused access to a series of documents, following objections from third parties. I have not been provided with a copy of the original decision, but there is agreement that the confidential information exemption contained in clause in clause 13 of Schedule 1 if the FOI Act was relied on, and that a number of documents which Mr Digwood sought were found not to exist (in respect of statewide forest type (output and regrowth) and mean annual increment (or annual forest growth of harvestable native forest areas)). 11 On 17 April 2008 made an application for internal review of that decision. In that application Mr Digwood disputed the decision that Forests NSW did not hold some of the information he had requested, and also sought a reconsideration of the confidentiality exemption. On 22 April 2008 Mr Digwood wrote to Forests NSW clarifying and amending his internal review request following telephone discussions with Forests NSW. 12 On 14 May 2008 Forests NSW emailed Mr Digwood advising of the outcome of the internal review. Relevantly, that email advised: The Internal Review has been completed and the additional attached documentation is being supplied from the finance database. Please note, as previously explained, the figures are based on sales volumes which may differ from harvest volumes for the same period. The review has also determined that you are entitled to previous years documentation which we believe may be contained on an obsolete database. The officer who has access to this database has recently returned from leave and an attempt will be made to supply you with this data as soon as practicable. I understand a document or database storing the data from the years 1988-1993 does not exist. … 13 On 16 June 2009 Mr Digwood emailed Forests NSW purporting to amend his application by attaching his own work sheet requesting the provision of calculated or theoretical royalty rates for the South Coast-Southern sub region. 14 On 3 July 2008 Forests NSW's FOI coordinator (Mr Wimalaratne) wrote to Mr Digwood releasing further documents relating to Royalty Rates. The letter apologised for not releasing the information earlier, noting there had been some confusion between two of Mr Digwood's FOI applications. 15 Subsequently, Mr Digwood engaged in correspondence with Forests NSW regarding what he considered to be wrong with the data he had been supplied with. Mr Digwood says that he was hoping that these discussions would provide him with clarification of his concerns. They did not do so. 16 On 12 December 2008 Mr Digwood applied to the Tribunal to review the internal review. 17 Was the first decision deemed or actual? Forests NSW maintains that the email of 14 May 2008 embodied a decision made on internal review to grant Mr Digwood limited access to the information he requested, and refusing him access to other parts. 18 While Mr Digwood's failure to seek that internal review in time can also be seen as an obstacle, I think that it can be inferred, from the fact that the Forests NSW actually determined the internal review, that the principal officer allowed Mr Digwood further time to lodge his application for internal review under s34 (2)(e)(iii). S 34(6) requires that an agency shall determine a request for internal review within 14 days 'after it received', failing which the agency is taken to have made a decision refusing access to the documents requested. In this case Mr Digwood's original request for internal review was made on 17 April 2008, but clarified and amended it on 22 April 2008. As Mr Digwood amended his request I think that time began to run under s 34(6) from the date the amended request was sent in by fax, 22 April 2008. That means that a decision had to be made by 7 May 2008, or section 34 would operate to deem a refusal. 19 Because Forests NSW did not make a decision until 14 May 2008 the operative decision is the deemed refusal. There is an uncomfortable element of artificiality to this conclusion, given what actually occurred, but it is one I am required to reach by the legislation. 20 Does the time limit under s 54 apply to deemed decisions – Section 54 relevantly provides: A review application is to be made: (a) except as provided by paragraph (b)—within 60 days after notice of the determination to which it relates is given to the access applicant, or … 21 Mr Digwood argues that s 54 does not apply to a deemed decision because notice is not given of the determination to which it relates. The words I have highlighted point to there being some merit to his argument. It can certainly be argued that the section requires actual notice before time runs, and that without actual notice time does not begin to run. This is especially so is the light of objects set out in s 5 of the FOI Act and the statement of legislative intention that the Act should be interpreted so as to further those objects, and discretions exercise to facilitate disclosure of information,. The weight of decided decisions in the Tribunal, however, point to a contrary conclusion. 22 There are three relevant first instance decisions. In Wilmhurst v Vice- Chancellor, Macquarie University [2002] NSWADT 196 Judicial Member Britton found that Applicant was on constructive notice of a deemed refusal, which notice occurred when the Applicant should have received notice of a decision from the Agency, had it complied with its obligations under the Act. This was nineteen days after he made his request for internal review, being the 14 days allowed by s 34, plus the 5 days for post allowed by s 60. The Judicial Member noted that the circumstances will vary from case to case, and set out a number of relevant factors, including the ability of the Applicant and her or his knowledge of the Act. 23 In Canobolous Heritage Railway Society Inc v General Manager, Bathurst Regional Council [2005] NSWADT 61 the President was considering an application to review a deemed refusal in which there was no subsequent decision by the Agency. He held at [19]: …the time for lodging an application for external review with the Tribunal commenced to run at that point. The FOI Act allows 60 days for lodgement of an external review application: s 54(a). 24 In Sawires v Commissioner of Police [2008] NSWADT 91 Judicial Member Montgomery considered the approaches taken in Wilmhurst and Canobolous and expressed a preference to that taken in Wilmhurst, which he followed. 25 Despite the attractions of the argument presented by Mr Digwood, it is by no means certain. I think that comity requires that I follow the line of authority established by Wilmhurst. Any reconsideration of this principle is a matter for an Appeal Panel and not a single member. 26 As a result I conclude that s 54 required that Mr Digwood seek to review the deemed decision within 60 days of receiving constructive notice of the deemed refusal. Like the applicant in Wilmhurst, Mr Digwood is a man of considerable intelligence who displayed a good understanding of the operation of the FOI Act. In those circumstances I think that computing the time of constructive notice by allowing nineteen days following the request for internal review case is fitting. Mr Digwood made his amended request on 22 April 2008. Nineteen days from then was 11 May 2008. 27 As a result s 54 required that Mr Digwood lodge his application for review by 10 July 2008, 60 days after 11 May 2008. He did not do so until 12 December 2008: 155 days late. 28 Should time be extended under s 57 of the ADT Act? In LZ v Office of the Protective Commissioner the Appeal Panel, having found that the Tribunal had power to extend the time for the making of an FOI review application under s 57 of the ADT Act, cautioned, at [65]: If it is finally determined that there has been an infraction of the time requirement, the Tribunal is, for the reasons we have given, not precluded from considering an application to extend time. The question will then be whether the applicant has a reasonable explanation for the delay in making the application. In our view, this matter should be approached with some circumspection. The FOI filing period is already a generous one (60 days), as compared to the usual period in the Tribunal (28 days). 29 In my opinion Mr Digwood has not provided a reasonable explanation for his delay. Forests NSW submitted that Mr Digwood chose to pursue informal negotiations and discussions with it, rather than seeking to review their decision (either deemed or actual). Mr Digwood could have followed both courses, but chose to go down the negotiation road. In my opinion, this is the reality of what occurred. 30 Even if that were not the case, Mr Digwood's explanation for the delay beyond early August 2008 is in my view totally unsatisfactory. Essentially, he says that there were other demands on his time and he did not get round to seeking a review. This is not a reasonable explanation. 31 As a result I conclude that time should not be extended to make Mr Digwood to make his application for review 155 days out of time. As a result the Tribunal does not have jurisdiction to hear his application. 32 I would reach the same conclusion were the decision being reviewed the actual decision of 14 May 2008, for the same reasons. The Second Decision 33 Background - Forests NSW provided a chronology of events with which Mr Digwood agreed. 34 On 18 October 2007 Mr Digwood made a request to Forests NSW for access to information relating to production and transfers in and out between its various regions, information in relation to a Ministerial statement that 'pulplogs were thinnings,' and in respect to transfers and production sources for the Eden region. In respect to the first of these, he explained that it was prompted by inconsistencies between information provided to him by Forests NSW in two previous FOI requests. 35 On 7 November 2007 Forests NSW wrote to Mr Digwood advising that, in an attempt to clearly nominate documents related to his request, it would check the data provided in the earlier request for inconsistencies, and then get back to him before going further. Discussions between Forests NSW and Mr Digwood followed. 36 On 11 January 2008 Mr Digwood wrote to Forests NSW clarifying and narrowing the scope of his request to four parts. 37 On 4 February 2008 provided Mr Digwood with access to documents within the scope of parts 1 and 2 of his request, and advised that no documents existed with respect to parts 3 and 4. 38 On 17 April 2008 Mr Digwood made a late request for internal review of that decision, setting out his reasons for believing that relevant information exists. On 22 April 2008 Forests NSW provided Mr Digwood with further information that it had inadvertently failed to give him earlier, and asked whether he wished the internal review to proceed. He replied by email on 22 April 2008 saying that he would suspend his request. He confirmed this in writing on 25 April 2008. 39 On 18 June 2008 Mr Digwood amended his request for internal review: he refers to it as reactivating his initial request. He explained that he understood that the information he was seeking 'could be derived from database(s)' and that he therefore considered the information existed because it could be 'created from the computer system by the process of retrieval or collating.' He made it clear that, 'I am requesting an Internal review on the basis of a deemed refusal under the FOI Act.' 40 On 27 June 2008 an Internal Review was completed, the Chief Executive Officer having agreed under s 34(2)(e)(iii) that the internal review should proceed, despite the apparent time difficulties and questions concerning whether Mr Digwood could suspend an application. 41 The internal review provided Mr Digwood with regrowth data for the Eden region and showing a net harvestable area figure for December 2007. It advised that other data did not does not exist and 'cannot be created in the terms intended' by s 23(b) of the FIO Act. The internal review addressed itself to a review of the decision in the emailed decision of 3 March 2008, rather than a deemed refusal. 42 On 4 July 2008 Mr Digwood wrote to Forests NSW setting out what he believed were errors in the information provided to him by Forests NSW. These errors were identified by Mr Digwood following an analysis of the information provided and a comparison with other information in his possession. He provided Forests NSW with details of his analysis. Mr Wimalaratne said that in discussion with Mr Digwood it was agreed that this would be treated as an information request, rather than an FOI request. Following on from this, there were ongoing discussions between Mr Digwood and Forests NSW about his concerns, including a meeting between Mr Digwood and Forests NSW staff at Batemans Bay where his concerns and data were discussed. Forests NSW staff at Batemans Bay agreed to provide him with other data. This was later done. 43 Mr Digwood says that he was hoping that these discussions would provide him with clarification of his concerns. They did not do so. He also says that at some unspecified time before 25 September 2008 (when there is a reference to it in an email he wrote to Mr Wimalaratne) Mr Wimalaratne agreed to revoke the internal review. This is denied by Mr Wimalaratne, who was not the internal review officer. 44 In the meantime, Mr Digwood said his time was absorbed by the impact of the financial crisis on his own affairs and those of a friend he was assisting and caring for in Northern NSW. That was why he did not make the application for review until 12 December 2009. 45 Was the second decision deemed or actual? Mr Digwood maintains that the internal review made on 27 June 2008 is not an internal review decision within the meaning of s 34. This is so because it wrongly identifies the original decision being reviewed as that embodied in the email of 3 March 2008, rather than a deemed decision. It therefore addresses the wrong determination. As a result he says there was no actual internal review decision made by Forests NSW, but a deemed decision under s 34(6) to refuse him access to the documents. 46 Forests NSW submits that because there is an error in the internal review, in the identification of the determination being reviewed, does not mean that the internal review is not a valid determination under s 34. 47 When one looks at the substance, rather than the form, of the internal review it is clear that the internal review officer dealt with the issues which Mr Digwood sought to agitate in his letter 18 June 2008, amending his internal review request. The internal review specifically deals with those issues and the obligations of the agency to create or collate documents under s 23(b). I have already referred to the legislative direction in s 5 that the FOI Act should be 'interpreted and applied so as to further the objects of this Act,' which are directed to ensuring the public's right to obtain access to information held by the Government. To hold, as Mr Digwood submits I should, that the internal review of 27 June 2008 was void, and therefore not an internal review, because it refers to wrong initial determination while dealing with the substance of what Mr Digwood was arguing, would in my view be adopting an overly technical approach, and one not in keeping the spirit and intention of the FOI Act. Rather, it is my view that while the internal review wrongly identified the determination under review, it dealt with the substance of the issues he raised in his amended request of 18 June, and is an internal review for the purposes of s 34. Importantly, it was made within the 14 day time for making an internal review fixed by s 34(6). 48 As a result I am satisfied that the decision now under review is the internal review decision made on 23 June 2008. Section 60 provides that Mr Digwood is taken to have received this five days later. Because that was a Saturday, he is taken to have received it on Monday, 30 June 2008. 49 Section 54 required that Mr Digwood lodge his application for review by 29 August 2008, 60 days after 30 June 2008. He did not do so until 12 December 2008: 105 days late. 50 If the decision were a deemed decision under s 34(6) it would be taken to have been made on 3 July. Applying the constructive notice principle set out in Wilmhurst, Mr Digwood would have been on constructive notice of that deemed refusal on 8 July 2008. In those circumstances s 54 required that Mr Digwood lodge his application for review by 6 September 2008, 60 days after 8 July 2008. As this was a Saturday, the last day on which he could file the review application was 8 September 2008: see s 36(2)(b) of the Interpretation Act 1987. He did not do so until 12 December 2008: 95 days late. 51 Was the Internal Review Decision Revoked? Mr Digwood maintains that Mr Wimalaratne revoked the internal review. The only evidence of this is an email from Mr Digwood in which that assertion is made. Mr Wimalaratne denies making any such statement. He points out that he does not have the power to do so. 52 The evidence does not persuade me that Mr Wimalaratne said he would revoke the internal review. It is essentially one person's word against that of another, with Mr Digwood unable to provide details of the conversation concerned. Mr Wimalaratne protest that he would not make such a decision, because he does not have the power to do so, impresses me as likely and probable. 53 Should time be extended under s 57 of the ADTA? Once again, in my opinion Mr Digwood has not provided a reasonable explanation for this delay. Mr Digwood pointed to his discussion and negotiations with Forests NSW regarding claimed deficiencies and inaccuracies in the information supplied, and their later provision of information up to an including the meeting in August, to partly explain the delay. Forests NSW submitted that Mr Digwood chose to pursue informal negotiations and discussions with Forests NSW, rather than seeking to review their decision (either deemed or actual). 54 It was put to Mr Digwood that he embarked on a different course following after FOI decision in lieu of coming to the Tribunal. He said this was unfair. I asked whether he had made it clear, at the time he embarked on further discussions with Forests NSW, that he would seek an external review at the Tribunal, if the discussions did not reach a satisfactory outcome. He was sure he had made this clear later in the process, but could not otherwise answer the question. 55 Mr Digwood could have filed a review application and pursued negotiations with Forests NSW simultaneously, but he chose to go down the negotiation road. In my opinion, this is the reality of what occurred. 56 Even if that were not the case, Mr Digwood's explanation for the delay beyond early August 2008 is in my view totally unsatisfactory. Essentially, he says that there were other demands on his time and he did not get round to seeking a review. This is not a reasonable explanation. 57 Mr Digwood argued that his application raised important public interest considerations regarding the operation and interpretation of s 23(b) of the FOI Act, which merited time being extended. In the absence of a reasonable explanation for his delay, this argument does not assist him. 58 As a result I conclude that time should not be extended allow to make Mr Digwood to make his application for review 91 days out of time. As a result the Tribunal does not have jurisdiction to hear his application. 59 I would reach the same conclusion were the decision being reviewed a deemed decision made on 3 July 2008, for the same reasons. Conclusion 60 Both Mr Digwood's applications to the Tribunal have been made out of time. Mr Digwood has not provided a reasonable explanation for the delays. 61 Mr Digwood's applications under s 57 of the ADT Act to extend the time in which to make the applications are refused accordingly. 62 As a result the Tribunal does not have jurisdiction to hear the review applications. They are dismissed accordingly.