Cunliffe v Darkinjung Local Aboriginal Land Council [2010] NSWADT 67

CITATION: Cunliffe v Darkinjung Local Aboriginal Land Council [2010] NSWADT 67

DIVISION: General Division

PARTIES: Ian Cunliffe Darkinjung Local Aboriginal Land Council

FILE NUMBER: 093149

HEARING DATES: 1 February 2010

SUBMISSIONS CLOSED: 1 February 2010

EXTEMPORE DECISION DATE: 1 February 2010 BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Access to documents - request for advanced deposit - jurisdiction

LEGISLATION CITED : Freedom of Information Act 1989

CASES CITED: Cianfrano v NSW Department of Premier and Cabinet [2008] NSWADT 174

In person REPRESENTATION: P Woods, solicitor

ORDERS: 1. The application is dismissed for want of jurisdiction.

REASONS FOR DECISION 1 By letter dated 30 March 2009, the Applicant applied to the Darkinjung Local Aboriginal Land Council ("the Land Council") pursuant to the Freedom of Information Act 1989 ("the FOI Act"). His application was as follows: Under the Freedom of Information Act 1989 (NSW) I request all documents, if any, which demonstrate the truth of the assertion made by Mr Patrick Woods to the Administrative Decision Tribunal's FOI planning meeting last Wednesday, 25 March 2009, that $42 million which had been raised by DLALC from the redevelopment of land at North Entrance has been reduced to $29m, including any independent accounting advice that would support Mr Woods' statement. 2 The Applicant's FOI request and enclosed cheque for the application fee was addressed to the Land Council's former address. 3 The Land Council did not receive the request or the cheque. It seems that it was opened by Australia Post and returned to the Applicant. The Applicant reposted the request on about 9 April 2009. The Land Council did not receive the reposted request or the cheque. It was again returned to the Applicant. 4 On 24 April 2009 the Applicant provided a copy of the request and a copy of the cheque to Mr Woods, the Land Council's solicitor. It seems that the request did not come to the attention of the Land Council prior to 24 April 2009. 5 By letter dated 24 April 2009 ("Mr Woods' 24 April letter") Mr Woods wrote to the Applicant on behalf of the Land Council and acknowledged receipt of the FOI application, called for a deposit of $5,000 to be paid within 21 days and indicated to the Applicant that the Land Council would not search for the documents he sought until the deposit of $5,000 was provided. 6 The Applicant immediately sought an internal review of that decision. 7 It is common ground that the Land Council is a small agency and that all FOI determinations are made by its Chief Executive Officer. By virtue of section 34(3)(b) of the FOI Act the Applicant was therefore not entitled to seek an internal review of the Chief Executive Officer's decision. 8 On 9 June 2009 the Applicant applied to the Tribunal for external review. The application is stated as relating to a "deemed refusal" and the date the decision was made is stated as "2 June 2009". The stated reasons for seeking review of the decision are "The deemed decision is contrary to law and best practice". 9 A preliminary issue arises with respect to the Tribunal's jurisdiction to hear this matter. The matter came before me for hearing on 1 February 2010. On that day I dismissed the application for want of jurisdiction and I gave brief reasons for my decision. At the Applicant's request I now publish more comprehensive reasons for my decision. Applicable legislation 10 Section 17 of the FOI Act provides for the making of requests for an agency's documents: 17 Applications for access to agencies' documents An application for access to an agency's document: (a) shall be in writing, and (b) shall specify that it is made under this Act, and (c) shall be accompanied by such application fee as the agency may determine, and (d) shall contain such information as is reasonably necessary to enable the document to be identified, and (e) shall specify an address in Australia to which notices under this Act should be sent, and (f) shall be lodged at an office of the agency, and may request that access to the document be given in a particular form referred to in section 27. 11 Section 21 of the FOI Act provides that an agency may require an advance deposit: 21 Agencies may require advance deposits (1) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advance deposit, as the agency may determine. (2) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the sum of the application fee and of any advance deposits paid in respect of the application, the agency may request the applicant to pay to it such amount, by way of further advance deposit, as the agency may determine. (3) The amount of an advance deposit requested by an agency in respect of an application shall not be such that the sum of the application fee, the advance deposit and any further advance deposits paid in respect of the application exceeds such amount as, in the opinion of the agency, will be necessary to cover the costs of dealing with the application. (4) A request for an advance deposit shall be accompanied by a notice that sets out the basis on which the amount of the deposit has been calculated. (5) The amount of an advance deposit requested by an agency in respect of an application shall be paid to the agency within such period of time as the agency may specify in the request. (6) The period of time between the making of a request under this section and the payment of an advance deposit in accordance with the request shall not be taken into account in calculating the period of 21 days within which the relevant application is required to be dealt with. 12 Section 22 of the FOI Act provides that an agency may refuse to continue to deal with an application if a requested advance deposit is not paid: 22 Agencies may refuse to continue to deal with applications if advance deposit not paid … (3) An agency may refuse to continue dealing with an application if: (a) it has requested payment of an advance deposit in relation to the application, and (b) payment of the deposit has not been made within the period of time specified in the request. (4) If an agency refuses to continue dealing with an application under subsection (3): (a) it shall refund to the applicant such part of the advance deposits paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application, and (b) it may retain the remainder of those deposits. (5) An agency that refuses to continue to deal with an application under this section must forthwith cause written notice of that fact to be given to the applicant. (6) A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly. 13 Section 34 of the FOI Act provides for the making of requests for Internal review of a determination: 34 Internal review (1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination. (2) An application for review of a determination: (a) shall be in writing, and (b) shall be accompanied by such application fee as the agency may determine, and (c) shall be addressed to the principal officer of the agency, and (d) shall specify an address in Australia to which notices under this Act should be sent, and (e) shall be lodged at an office of the agency: (i) if notice of the determination was given to the applicant—within 28 days after that notice was given, or (ii) if no notice of the determination was given to the applicant—within 49 days after the application was received by the agency, or (iii) in any case, within such further time as the principal officer of the agency may allow. (3) A person is not entitled to a review of: (a) a determination of an application made under this section, or (b) a determination that has been made by the principal officer of an agency. (4) An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17. (5) An application under this section shall not be dealt with by the person who dealt with the original application under section 17 or by a person who is subordinate to that person. (6) An agency that fails to determine an application made under this section within 14 days after it is received by the agency shall, for the purposes of this Act, be taken to have made a determination under section 24 refusing access to the document to which the application relates. (7) For the purposes of this section, a person is aggrieved by a determination: (a) if the determination relates to an application made by the person under section 17 and is to the effect that: (i) an agency refuses to give the applicant access to a document, or (ii) access to a document is to be given to the applicant 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 applicant, or (iv) access to a document is to be given to the applicant subject to a charge for dealing with the application, or for giving access to a document, that the applicant considers to be unreasonable, or (v) a charge for dealing with the application is payable by the applicant, being a charge that the applicant considers to have been unreasonably incurred, or (b) if the determination relates to an application made by some other person under section 17 in respect of a document to which one or more of the provisions of Division 2 applies and: (i) an agency 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 should have, and has, taken such steps, but the determination is not in accordance with the views of the person, or (c) if the determination relates to an application made by the person under section 17 and is a determination that was taken to have been made by virtue of section 24 (2) (which provides that an agency that fails to determine an application within 21 days after the application was received by the agency is taken to have determined the application by refusing access to the document to which it relates). (8) Subsections (3) (b) and (5) do not apply to the internal review of a determination that was taken to have been made by virtue of section 24 (2). 14 Section 53 of the FOI Act provides that a person who is aggrieved by a determination made by an agency under section 24 or 43 may apply to the Tribunal for a review of the determination. Consideration 15 On the basis of the material before me I am satisfied that the Land Council first became aware of the FOI request on 24 April 2009. It is clear to me that the Land Council never received the original application. Nor did it receive the Applicant's application fee cheque. It is clear from Mr Woods' 24 April letter that the Land Council decided to deal with the FOI request. 16 In my view the Land Council has decided to deal with the FOI request in the absence of the application fee and that it has effectively waived the requirement for the application fee. 17 It is clear from Mr Woods' 24 April letter that the Land Council had requested an advance deposit. I am satisfied that the decision to request an advance deposit was taken by the principal officer of the Land Council. Mr Woods' 24 April letter specified the timeframe in which the deposit was to be paid. In my view, the request for an advance deposit satisfied the requirements of section 21 of the FOI Act. 18 It is clear that the specified time for the making of the deposit has expired. Pursuant to section 22 of the FOI Act, the Land Council was entitled to make a determination to refuse to continue to deal with the application. It seems from the material before me that there was no written determination to that effect. However, it is clear from Mr Woods' 24 April letter that the Land Council had put the Applicant on notice that it would only deal with the application after the requested deposit had been paid. In my view a determination to refuse to continue to deal with the application must be implied. Pursuant to section 22(6) of the FOI Act the implied decision to refuse to continue to deal with the application is a reviewable decision. 19 It is common ground that all Land Council decisions under the FOI Act are taken by the principal officer of the Land Council. In my view, the implied decision to refuse to continue to deal with the application is a decision taken by the principal officer and therefore the Applicant did not have a right to apply for an internal review pursuant to section 34 of the FOI Act. 20 The Applicant contends that the 21-day period within which the Land Council was required to make a determination under section 24(2) of the FOI Act re-commenced on the expiry of the period within which the requested deposit was to be paid. He says that once that 21-day period had expired the Land Council was deemed to have determined to refuse to grant him access to the documents that he requested. In support of this submission he relied on views expressed by Judicial member Handley in Cianfrano v NSW Department of Premier and Cabinet [2008] NSWADT 174. The Judicial Member stated at paragraphs [32] - [33]: 32 ... If an agency were able to repeatedly extend the time for payment of the advanced deposit, notwithstanding that the applicant has given no indication of preparedness to pay, it would effectively deprive an applicant of any review rights. This does not appear to have been the intention of the legislation given the context of the FOI Act, in which internal and external review rights are generally available to an applicant who is dissatisfied with the decision of an agency. 33 Thus, in my view, in the absence of an extension of the period within which an advance deposit is required to be paid under section 21(5) being granted for good reason in accordance with the objects of the FOI Act, and not for an improper purpose, if an applicant fails to pay an advance deposit within the specified period, at the end of that period, the suspension of the 21 day period pursuant to section 21(6) will expire and the running of the 21 day period will resume. Then if the agency does not make a decision to refuse to continue dealing with an application under section 22(3), at the end of the 21 day period, if no decision to determine the application has been made, section 24(2) will deem the application to have been refused, thereby giving rise to the review rights set out in Parts 3 and 5 of the FOI Act. 21 The Applicant contends that if the 21-day period within which the Land Council was required to make a determination under section 24(2) of the FOI Act was suspended, it re-started when the 21-day period for payment of the deposit elapsed. He says that as the Land Council did not make a determination, the 21-day period eventually expired and the Land Council was deemed to have refused the FOI request. He says that he was then entitled to apply to the Tribunal for external review of the deemed refusal. 22 I do not agree with that argument. Notwithstanding the Cianfrano decision I do not agree that the 21-day period within which the Land Council was required to make a determination re-started when the 21-day period for payment of the deposit elapsed. It is my view that there was an implied decision to refuse to proceed with the application unless and until the deposit was paid. The requested deposit was not paid. The 21-day determination period was suspended until the deposit was paid, not until 21 days for payment of the deposit had elapsed. That is a reviewable decision. 23 It follows that I do not agree that the Land Council was deemed to have refused the Applicant's FOI request. 24 It is common ground that the Applicant has not sought external review of the Land Council's implied decision to refuse to proceed with the application. The Applicant has sought review of the alleged deemed refusal of his FOI request. In the circumstances there is no jurisdiction to deal with that issue. Order 1. The application is dismissed for want of jurisdiction.