CITATION: Altaranesi v NSW Self Insurance Corporation [2010] NSWADT 217 DIVISION: General Division APPLICANT Tareq Altaranesi PARTIES: RESPONDENT NSW Self Insurance Corporation FILE NUMBER: 103038 HEARING DATES: On the papers SUBMISSIONS CLOSED: 15 July 2010 DATE OF DECISION: 30 August 2010 BEFORE: Molony P - Judicial Member CATCHWORDS: Freedom of information – jurisdiction - adequacy of search LEGISLATION CITED : Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 CASES CITED: Chan v Department of Education and Training (GD) [2010] NSWADTAP Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86 White v NSW Department of Education and Training (GD) [2009] NSWADTAP 73 APPLICANT In person REPRESENTATION: RESPONDENT G Wallace. solicitor ORDERS: The Tribunal does not have jurisdiction to review the adequacy of search issued raised by Mr Altaranesi. REASONS FOR DECISION Background 1 On 23 February 2010 Mr Altaranesi filed an application to review a decision made on internal review by the NSW Self Insurance Corporation (SICorp) under the Freedom of Information Act 1989. The internal review decision was made on 16 February 2010. 2 Mr Altaranesi's initial FOI request sought documents relating to workers compensation claims he had made against his former employer, the South West Sydney Area Health Service (SWSAHS): I am applying under FOI Act for:- I- Access (inspect) and 2- Get copy of The files of the claim No. 29559EML and claim No. 22930EML (Manually and Electronically). My request has to include all medical assessment reports and all exchanged documents (mail, fax, email) between Employers Mutual Limited, Royal Prince Alfred Hospital, Sydney South West Area Health Service and all doctors. 3. The above request is only for the period of 1/4/2008 until 04/01/2010 3 The internal review released a substantial number of documents. The decision advised: I have carefully reviewed the papers on your file. I have decided that under the Freedom of Information Act 1989 the file may be released to you, with the exception of documents that are exempt from release under the Act. Under clause 10, Schedule 1 of the Freedom of Information Act 1989, documents subject to legal professional privilege are exempt from release. Legal privilege may be claimed if the documents meet the definition under s119 of the Evidence Act 1995 because they are: Confidential communications between the client and another person or between a lawyer acting for the client and another person or a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to litigation or anticipated litigation. Or the documents meet the definition under s 118 of the Evidence Act 1995 because they are: Confidential communications made between the client and a lawyer or between 2 or more lawyers acting for the client or the contents of a confidential document prepared by the client or a lawyer for the dominant purpose of the lawyer(s) providing legal advice to the client. It is my view that the documents listed under Schedule A should be withheld because they are subject to legal professional privilege and therefore exempt from release" In addition, your file contained material relating to the personal affairs of third parties. Clause 6, Schedule 1 of the Freedom of Information Act 1989 states: A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person. In my opinion, release of the documents listed under Schedule B would involve the unreasonable disclosure of information concerning the personal affairs of third parties. These documents are therefore exempt from release. 4 441 documents were released to Mr Altaranesi. 61 documents were subject o a claim of legal professional privilege, and 5 were the subject of a claim under the personal affairs exemption. 5 At a planning meeting held on 20 April 2010 Mr Altaranesi suggested that additional medical reports and communications between SICorp's agent, Employers Mutual Limited ("EML") and the SWSAHS existed and should be located. 6 SICorp's position is that all the medical reports it holds, which are not subject to legal professional privilege, have been released to Mr Altaranesi. It also maintains that all relevant communications between it, EML and the SWSAHS, or between EML and the SWSAHS, have either been released to Mr Altaranesi or are the subject of a claim for privilege. Mr Altaranesi does not accept this. At a planning meeting on 13 May 2010 he pressed for access to these documents, which he insists exist. 7 SICorp, in addition to denying that there are any such documents, submitted that the Tribunal has no jurisdiction to deal with the issue. Mr Altaranesi disputed this. 8 I determined to deal with this jurisdictional issue as a preliminary issue on the papers and made directions for the filing of submissions on the jurisdiction issue. I indicated that in considering the jurisdictional argument I would assume that Mr Altaranesi is correct in his (unproven) assertion that SICorp holds additional documents which fall within the scope of his FOI request. I was of the view that the issue of the Tribunal's jurisdiction should be considered on the basis of the facts as asserted by Mr Altaranesi. 9 I also fixed a date for a hearing to consider the exemptions claimed by SICorp after I determine the jurisdictional issue. 10 After Mr Altaranesi had filed his submissions on the jurisdiction issue he was served with SICorp's evidence with respect to the exemption claims. He wrote objecting to some of that evidence as "not true, unsubstantiated, irrelevant and defamatory." For that reason he requested that all issues, including the jurisdiction issue, be referred for hearing. SICorp has objected to this proposal. I can see no basis for changing the arrangements already put in place. I remain of the view that the jurisdictional issue can be adequately determined in the absence of the parties as a preliminary issue on the papers. 11 These reasons relate to the jurisdictional issue only. SICorp's Submissions 12 SICorp has made detailed written submissions, which I do not intend to traverse in full. 13 In summary, SICorp submits that the Tribunal does not have jurisdiction under s 53 of the Freedom of Information Act 1989 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: Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 (the Commerce Case). 14 Importantly SICorp points out that decision of the Court of Appeal in the Commerce Case: '…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." 15 SICorp referred to a number of decisions made by the Appeal Panel of the Tribunal, subsequent to the decision in the Commerce Case, in which it had been found that the Tribunal had no jurisdiction with respect to adequacy of search in circumstances where the agency had not made a formal determination that it did not hold documents. 16 SICorp submitted that it had always been of the view, including at determination stage, that it holds no further documents responsive to the request. Mr Altaranesi's Submissions 17 Mr Altaranesi has filed a document entitled Applicant Outline of Submissions on Jurisdiction. The submissions address all the issues in contention in this case; not just the jurisdictional issue. In addition to the jurisdictional issue they go to the form of access Mr Altaranesi was given to the documents, the adequacy of the reasons given on internal review (including the absence of findings on material questions of fact), the claims for exemption based on legal professional privilege, the claims for exemption based on the personal affairs exemption, the possibility of providing redacted copies of documents subject to claims of exemption, and with respect to the exercise of the override discretion. 18 Only those submissions relevant to the jurisdictional issue have been fully considered for the purposes of this decision. 19 Annexed to the submissions are the following documents: - TA1 - Mr Altaranesi's initial request for access to documents dated 5 January 2010. - TA2 - His request for internal review (n the basis of a deemed refusal) dated 8 February 2010. - TA3 - The internal review dated 16 February 2010 including the schedules of documents subject to claims of exemption. - TA4 - Copy letter from the Crown Solicitor's office to the Registrar of the Tribunal dated 22 April 2010 advising that all documents have been disclosed and raising the jurisdiction issue. - TA5 - A schedule of documents which Mr Altaranesi says were not disclosed by SICorp. - TA6 - A copy of clause 37 of the Workers Compensation Regulation 2003, which places an obligation on an employer and insurer, in certain circumstances, to disclose medical and other reports to a worker. - TA7 - An incomplete copy of a report to EML from Dr Roberts dated 21 August 2008 regarding Mr Altaranesi. This report refers to another report, apparently in Dr Robert's possession, from Mr Anning and dated 8 March 2008. Mr Altaranesi infers that this report must be held by SICorp. - TA8 - A letter to Mr Altaranesi dated 7 May 2008 from Mr Anning. - TA9 - Page 1 of what Mr Altaranesi says was a 15 page review request he says he sent to the insurer of 1 September 2008. This he says was not disclosed by SICorp. - TA10 – TA17 - A further eight documents which Mr Altaranesi says go to prove that legal professional privilege has been waived. 20 With respect to the jurisdictional issue Mr Altaranesi submits that SICorp did not disclose or release documents within the scope of his request. He has always asserted that the Tribunal has jurisdiction to review the issue as there was no notice that the agency does not hold documents. As I understood his submissions Mr Altaranesi accepted (at paragraph 23 of his submissions) that there is a distinction to be drawn between a determination and an agency giving a notice that it does not do so. 21 He wrote, at paragraph 24 of his submissions: If a notice that an agency 'does not hold' a document is a not a determination, it would seem to follow that the Tribunal is not vested with the power to review whether the agency conducted an adequate search. Consideration 22 Section 53 of the Freedom of Information Act 1989 relevantly provides: (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. (2) … (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 23 In the Commerce Case the Court of Appeal held that s 53 does not confer on the Tribunal jurisdiction to review the adequacy of searches undertaken by the agency, as a notice that the agency does not hold documents under s 28 is not a determination made by the agency. Beazley JA explained, at [68] –[69]: The terms of s 28 are consistent and, I consider, only consistent with the construction I have given to ss 24 and 25, that is, that a further basis of review is not to be read into the section. Section 28 is concerned with giving a notification of a determination. It is not concerned with a notification or advice or information as to the search that was conducted by the agency to ascertain whether it has documents or knows whether or not documents exist. Section 53 provides for the review of a determination. The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in s 53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a 'determination' within the meaning of s 24(1). Accordingly, the bases for the implication of an additional right of review for the purposes of s 24, in my opinion, do not exist and Smith JM was incorrect in finding that there was such an implication. 69 The view that I have taken as to the extent of the review available under s 53(1) is supported by s 53(3). That section specifies the circumstances in which a party is 'aggrieved' for the purposes of making an application. The subsection, which is exhaustive in its terms, makes no reference to a person being aggrieved because an agency has failed to make a satisfactory or adequate search. 24 In the Commerce Case there had been no express notification that the agency did not hold the documents in issue. The only document which could meet that description was a letter which read: "I ..., Director-general, have determined that you be granted partial access to some information and that you be refused access to some other information which matched the scope of your application. I have enclosed 16 'Schedules of Access to Discovered Documents' detailing the documents and information to which access is refused." 25 The Tribunal had not determined whether the letter constituted a notice that the agency did not hold the documents, other than those to which it agreed to grant or refuse access to. The Court of Appeal proceeded on the assumption that the letter did so. 26 Since the decision in the Commerce Case, the Appeal Panel of this Tribunal have considered the Tribunal's jurisdiction in a number of cases in which there was no formal notice given by an agency that it did not hold documents. 27 In Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86, the Appeal Panel considered a situation where the agency had only found one document relevant to the request, which it released in full. The decision in the Commerce Case was delivered after the review proceedings had commenced, but before the Tribunal made its decision. 28 While there had been no express notification that the agency did not hold any other documents, the matter proceeded on the basis that this was implied in the decision granting access. The Tribunal held it had no jurisdiction to look beyond the agency's assertion that it had given full access to the only document located by it. This was so even though enquiries, instituted at the Tribunal's behest before the decision in the Commerce Case, led to a senior officer of the agency stating that additional documents falling within the FOI request were held and had been located. The Appeal Panel upheld this decision, but did express misgivings at the position maintained by the agency, given that a senior officer had indicated the documents had been located. 29 In White v NSW Department of Education and Training (GD) [2009] NSWADTAP 73 the Applicant made a request for documents that provided information "relating to income received for Centenary pavers and Centenary walkway." The agency provided a summary of income and expenditure prepared by the Principal of the school concerned. It did not state that there were no other documents responsive to the request. At first instance the Tribunal accepted the agency's submission that Mrs White's review was putting adequacy of search in issue and that the Tribunal did not have jurisdiction. On appeal the Appeal Panel found that there was no evidence from which it could be found, or implied, that the agency had found that it did not hold any other documents responsive to the request. The Appeal Panel said, at [24] to [28] 24. In this case there is no evidence to suggest that at the time the request was being processed that s 28(1)(b) was being invoked. Nor, in our view, did the Department provide any evidence in support of the assertion that its ultimate decision was on the ground that no documents could be found. 25. Consequently, in our view, there was no factual foundation established before the Tribunal for the finding implicit in its conclusion. 26. Furthermore, the agency's submissions raising the Commerce case seek, in our view, to justify what was a failure to make a determination on a basis that is incongruous. It defies belief that there would be no source documents responsive to this application. The fact that the Principal produced a document that contained detailed information itself infers that there were source documents. 27. The real issues between the Department and the applicant at this point appear to have been usual ones that often bedevil the FOI process – scale of the request, whether the applicant would accept a limited provision of documents and whether a summary document of the kind actually produced will suffice. If the case was being dealt with on a s 23 basis this should have been made clear. 28. In our view the Commerce case is not to be read as requiring the Tribunal to decline jurisdiction simply on the basis of an assertion by an agency in submissions that it has no documents responsive to a request. Something more is required – at the least, the making of an official statement in the formal response to the request to that effect that is credible, or, preferably, the formal giving of a s 28(1)(b) notice. 30 In Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 ") the agency in response to Mr Chan's request for access to documents about him held by the NSW TAFE, determined to grant full and partial access to some documents, and to refuse access to other documents. On internal review the reviewer, amongst other things, referred to a contention by Mr Chan that there was an inadequate search, as documents he had expected to see disclosed had not been included in the primary determination. The reviewer stated that he was satisfied that the search has been "logical, thorough and reasonable." On review the Tribunal did not require the agency to undertake further searches. 31 On appeal the Appeal Panel noted that, at[30]: "30 In this case there is no formal s 28(1)(b) notification. The situation is a looser one. The agency in its internal review determination addressed Mr Chan's objection to the adequacy of its search by stating that it had undertaken a thorough search. At a later stage the agency indicated that its search had not extended to archived records." 32 The Appeal Panel referred to the decision of the Court of Appeal, noting that both Beazley and Basten JJA had gone beyond stating that a formal notification that an agency does not hold documents is not within the Tribunal's review jurisdiction. 33 At paragraph [68] of the Commerce Case Beazely JA said: 68. …The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in s 53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a 'determination' within the meaning of s 24(1). Accordingly, the bases for the implication of an additional right of review for the purposes of s 24, in my opinion, do not exist and Smith JM was incorrect in finding that there was such an implication. 34 Basten JA at paragraphs [105] – [106] said: 105. … 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. 106 This does not, of course, mean that the obligations imposed on agencies under the FOI Act upon receipt of applications for access to documents are unenforceable in either a legal or a practical sense. As the Respondent accepted, the failure of an agency to consider or adequately consider an application might be the subject of a complaint to the Ombudsman. The fact, as noted by the Respondent, that the power of the Ombudsman might not extend to review of a decision with respect to documents held by a Minister does not mean that in other circumstances a right of administrative review does not exist through the office of the Ombudsman, nor, more importantly, does it mean that the FOI Act should be construed so as to confer a right of review through the Tribunal, which the terms of the Act do not expressly provide. 35 In Chan the Appeal Panel considered these comments applicable and binding. The Panel commented that the problem addressed in White did not arise, as the agency's position at determination stage was that there was there were no other documents responsive to the request. 36 SICorp argued that prior to making the determination it formed the opinion that it had no further documents responsive to the request, and has always maintained that position. It did not expressly state this to be the case in the internal review determination. 37 The situation here is, as the Appeal Panel observed in Chan, a looser one that a situation in which there has been notice given that the agency does not hold documents. It is, however, to be contrasted with the situation in White where it was obvious, from the nature of the document disclosed by the agency, that there must be further documents in the agency's possession responsive to the request. 38 Here Mr Altaranesi sought access to his workers compensation claim files, including medical reports and exchanges between the insurer, his employer and doctors. In the internal review decision the reviewer said that he had carefully reviewed the papers on Mr Altaranesi's file. He granted access to the entire file save those documents on which an exemption was claimed: 441 were released, 61 remain the subject of claims for exemption. 39 Given the way in which the request was framed, in terms of claims files, the reviewer's statement that he had carefully reviewed the papers on Mr Altaranesi's file, and the large volume of documents released or subject to exemption, I accept that the internal review decision implied that SICorp did not hold any other documents responsive to Mr Altaranesi's request. 40 The Tribunal does not have jurisdiction to review that issue. 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.