CITATION: McGuirk v University of New South Wales [2009] NSWADT 298 DIVISION: General Division APPLICANT Gerard Michael McGuirk PARTIES: RESPONDENT University of New South Wales FILE NUMBER: 093060 HEARING DATES: On the papers SUBMISSIONS CLOSED: 8 June 2009 DATE OF DECISION: 2 December 2009 BEFORE: Higgins S - Judicial Member CATCHWORDS: Access to documents – request for an advance deposit – refusal to continue to deal with application as advanced deposit not paid LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 LZ v Office of the Protective Commissioner [2008] NSWADTAP 50 McGuirk v University of NSW [2009] NSWADTAP 12 CASES CITED: McGuirk v University of NSW [2007] NSWADT 258 McGuirk v University of NSW [2007] NSWADT 270 Styles v Wollondilly Shire Council [2004] ASWADAP 46 APPLICANT In person REPRESENTATION: RESPONDENT P Singleton, barrister ORDERS: 1.The time in which Mr McGuirk is to lodge this application for review is extended to 7 July 2006 2.The decision of the University is affirmed. REASONS FOR DECISION Introduction 1 The applicant, Gerard Michael McGuirk (Mr McGuirk), has sought review of a decision of the respondent, the University of New South Wales (the University), in regard to his request for access to specified documents pursuant to the Freedom of Information Act 1989 (the FOI Act). 2 The decision for which Mr McGuirk seeks review is a decision of Ms J Davoren, the executive officer of the University, made on 20 April 2006. Her decision was to refuse to deal with Mr McGuirk's FOI application of 27 February 2006 as he had failed to pay the advance deposit requested by the University. 3 On 26 October 2007, I found that the Tribunal did not have jurisdiction to hear and determine Mr McGuirk's application: see McGuirk v University of New South Wales [2007] NSWADT 258 at [32] to [40]. I made this finding on the basis of Mr McGuirk having lodged his application for review outside the time prescribed in section 54 of the FOI Act and on the basis that the decision of Ms Daveron was a decision that was the 'subject to a right' of an internal review and not an internal review decision as required by s.53(2) of the FOI Act. 4 Mr McGuirk successfully appealed that decision: see McGuirk v University of New South Wales [2009] NSWADTAP 12. On the basis of a recent decision in LZ v Office of the Protective Commissioner [2008] NSWADTAP 50, the Appeal Panel found that the Tribunal did have power, pursuant to s.57 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), to extend the time for an applicant to apply to the Tribunal for a review of reviewable decision made under the FOI Act: see at [37]. At [40] the Appeal Panel found that the decision of Ms Davoren was a 'purported' internal review decision and therefore satisfied the requirements of s.53(2) of the FOI Act. 5 On the basis of these findings the Appeal Panel set aside my decision and remitted the application for the Tribunal to determine the following matters: (a) whether Mr McGuirk wished to apply for his application to be accepted even though it was lodged out of time; (b) if so, whether the Tribunal should accept the application out of time; and (c) if so, whether the decision made on 20 April 2006 is correct and preferred decision. 6 On 13 March 2009, the Registrar wrote to the parties informing them of directions the Tribunal had made in accordance with the orders of the Appeal Panel. The directions required Mr McGuirk to notify the Tribunal and the respondent, in writing and within a specified time, if he sought to have the time extended for lodging his application for review and to provide an explanation for the delay in lodging his application outside the time prescribed in s. 54 of the FOI Act. 7 Mr McGuirk did not comply with this order and on 17 April 2009, the Assistant University Solicitor, Ms Fleming, wrote to the Registrar noting that Mr McGuirk had not served the University with any documents in accordance with the orders that had been made. 8 On 29 April 2009, Mr McGuirk sent to the Tribunal, by facsimile, a written explanation as to why he had not complied with the directions that were made. It is unnecessary to set out the details of that explanation other than to say that Mr McGuirk's doctors had advised him to minimise his exposure to stress so as to prevent any further deterioration of his health. The stress Mr McGuirk said was due to the numerous proceedings in which he was involved before the Supreme Court and the Tribunal. 9 Mr McGuirk went on to advise that he still wished to proceed with this application for review, however, on doctor's instructions he did not wish to take any further active part in the application. Mr McGuirk also said the reason for his delay in lodging this application with the Tribunal was 'an overload of work at the time exacerbated by my ongoing anxiety/depression disorder.' 10 The matter next came before the Tribunal on 7 May 2009 together with a number of other applications that Mr McGuirk had before the Tribunal at first instance. At this directions hearing, by consent, orders were made (a) for the respondent to file and serve, on or before 8 June 2009, any objections it had to the Tribunal extending the time within which Mr McGuirk was to lodge his application for review, and (b) that the application was to be determined on the papers. 11 The respondent did not file and serve any objections and these are the Tribunals reasons for decision of its determination of this application. Extension of time 12 Section 57 of the ADT Act provides that the Tribunal may, on application by an 'interested' person (i.e. in this application Mr McGuirk) seeking to make a late application to the Tribunal, extend the time for the making of that application. However, the section also provides that the Tribunal can only extend time where it is of the opinion that the person seeking to make the late application 'has provided a reasonable explanation for the delay in making the application.' That explanation must of course be specific to the period during which the application should have been lodged and when it was lodged. 13 In these proceedings, Mr McGuirk lodged his application for review with the Tribunal on 7 July 2006. It was lodged 77 days after he was notified of the decision of Ms Davoren: see McGuirk [2007] NSWADT 258 at [34]. This is 17 days after the period provided in s. 54 of the FOI Act. 14 Although a 17 day delay may not be regarded as being significant, the period of delay must also be viewed in the context of the 60 day period provided in s.54 of the FOI Act. This is considerably more than the 28 days which usually apply under the ADT Act. 15 As I have already said, Mr McGuirk's explanation for the delay was an overload of work and his ongoing anxiety/depressive order. The University has not raised any objection to this explanation. On this basis and the fact that there was a 17 day delay I find that Mr McGuirk has provided a reasonable explanation for his delay in making his application to the Tribunal. Accordingly I extend the time for Mr McGuirk to make his application to the Tribunal to 7 July 2006. Is the decision of Ms Davoren the correct and preferable decision? Relevant law 16 The decision of Ms Daveron, which is the subject of review in this application, is a decision that was made pursuant to s. 22(3) of the FOI Act which relevantly provides as follows: '22 (1)(2) (Repealed) (3) Any agency may refuse to continue dealing with the 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) …' 17 A decision made by an agency under s.22(3) is a discretionary decision. However, that discretion can only be exercised if the preconditions set out in s.22(3) have been satisfied. These preconditions relate to the agency having exercised its powers under s.21 of the FOI Act. 18 These preconditions were described by the Appeal Panel at [12] in Styles v Wollondilly Shire Council [2004] NSW ADTAP 46 as follows: (a) the agency must have formed an opinion that the costs in dealing with the application for access is likely to exceed the amount of the application fee: see s.21(1); (b) the agency must have requested the applicant to pay an amount, by way of advance deposit, as is determined, by a specified date: see s.21(1); (c) the agency must have requested an amount which together with the application fee, did not in its opinion, exceed an amount that would be necessary to cover the costs of dealing with the application; see s.21(3); (d) the agency must have included in the request for an advance deposit a notice that sets out the basis on which the amount of advance deposit was calculated; see s.21(4); and (f) the agency must wait for the period of time within which the advance deposit is to be paid, as specified in the request for advance deposit, to expire before it made its decision under s. 22(3). 19 It is now well accepted that a decision by an agency to request and advance deposit under s.21 of the FOI Act is not a decision which is reviewable by the Tribunal: see McGuirk v University of New South Wales (GD) [2007] NSW ADTAP 65 at [18]. 20 However, a decision to refuse to continue to deal with an application under s.22 of the FOI Act is reviewable by the Tribunal: see s.22(6) of the FOI Act. It should be noted that this is a decision by the agency to refuse to continue to deal with the FOI request of the applicant. It is not a decision refusing access to the documents requested: see s.25(1) of the FOI Act. 21 In McGuirk v University of New South Wales [2007] NSWADT 270 at [57] to [76] I considered at length the purpose of ss.21 and 22 of the FOI Act and factors which may be relevant to the exercise of the discretion under s.22(3) of the FOI Act. It is unnecessary to repeat these other than to note that these provisions, along with the discretion under s.24(1)(b) & (c) of the FOI Act to impose a charge on an FOI applicant as to the costs involved in dealing with an applicant's FOI request, are one of a number of the 'restrictions' to a persons right to access to documents held by a government agency: see s.5(2) of the FOI Act which expressly provides that access is subject to those restrictions that are 'reasonably necessary for the proper administration of Government'. 22 In summary, the purpose of ss.21 and 22 is to obtain an advanced payment from an FOI applicant where the agency forms the view that the time and cost in dealing with the applicant's FOI request will exceed the application fee and the agency proposes to charge the FOI applicant for those costs. 23 At [73] I identified the overall reasonableness of the amount of advance deposit requested was a factor the Tribunal may have regard to in determining whether the decision of an agency to refuse to continue to deal with the FOI request was the correct and preferred decision. Other relevant factors would be the nature of the documents requested and any other circumstances relevant to the FOI request. 24 There is no dispute that on an application for review of a reviewable decision under the FOI Act the onus is on the agency to establish that its decision is justified: see s. 61 of the FOI Act. Consideration 25 In these proceedings each of the abovementioned pre-conditions to the University exercising its discretion under s.22(3) of the FOI Act were satisfied. 26 Mr McGuirk's application for access to documents was dated 27 February 2006. He sought access to the following documents: '1. All correspondence between Profession John Nyland, Professor John Ingleson, Professor Greg Whittred, Professor Roger Layton and Mr Neil Morris with the NSW Legal Office in regard to the legal action initiated by Mr Gerard Michael McGuirk under the Protected Disclosure Act 1994 against these current or former officers of the University in November 2003 (the ' McGuirk v Nyland & Ors matter '). 2. All diary entries, notes of telephone conversations, file notes and other documents pre materials held by the NSW Legal Office in regard to the 'McGuirk v Nyland & Ors matter. 27 On 21 March 2006, within the 21 days prescribed by s.24(2) of the FOI Act, Ms Deborah Gibson (Ms Gibson), the University Freedom of Information Officer, wrote to Mr McGuirk seeking an advance deposit of $1,260. She requested that the amount be paid to the University by 5 April 2006, being 14 days from the date of her letter. In her letter Ms Gibson noted that Mr McGuirk's request covered a period of 1½ years and that it overlapped with a number of previous FOI requests he had made to the University for similar documents. She then gave a description of the number of files held by the University which in her opinion were likely to contain the documents Mr McGuirk was seeking access to. She indicated that claims of exemption would most likely be made to a number of the documents and she identified the likely grounds of exemption. She then identified 6 tasks that she would be required to do in dealing with McGuirk's request. She gave an estimate as to how long each task would take and the cost of each task based on a fee of $30 per hour. This is the fee an agency can charge pursuant to the Freedom of Information (Fees and Charges) Order 1989. In total, Ms Gibson estimated that it would take 42 hours to deal with Mr McGuirk's request, which gave rise to an estimated total cost of $1,260. 28 In her letter Ms Gibson also informed Mr McGuirk that pursuant to s.22 of the FOI Act, 'the University may refuse to continue to deal with an application where an advance deposit is not paid within the time allowed.' 29 On 4 April 2006, the day before the requested advance deposit was payable by Mr McGuirk, he wrote to Professor Wainwright AM (Professor Wainwright), Principal Officer and Vice-Chancellor of the University requesting that he 'as principal officer of the University of New South Wales' determine his application 'without further delay.' The letter was lengthy setting out the provisions of the FOI Act and the responsibilities of Professor Wainwright in his capacity as the Principal Officer of the University. The tone of the letter in some respects was threatening. For example towards the end of his letter Mr McGuirk said: '...[not] only are you required to establish that your determination is justified, but you must also be able to demonstrate to the Tribunal that you have acted in good faith in making this determination. Should the Tribunal form the view that you have not acted in 'good faith' but are for example using 'advance deposit' requests to avoid your obligations under the FOI Act, the Tribunal is under an obligation to make a report of your conduct to the responsible Minister - ...'. 30 On 19 April 2006, Ms Gibson wrote to Mr McGuirk notifying him of her decision to refuse to deal with his application as he had failed to pay the advance deposit as requested. 31 In her decision of 20 April 2006, Ms Davoren affirmed the decision of Ms Gibson. She states she examined the files identified by Ms Gibson and agreed with her conclusions as to the estimate of time and costs for dealing with his application. Ms Davoren suggested it might have been possible to reduce the amount of advance deposit if Mr McGuirk were to agree to reduce the ambit of his request to exclude documents that had emanated from him. She nevertheless concluded by affirming the decision of Ms Gibson to refuse to deal with his application pursuant to s.22 of the FOI Act. 32 To the knowledge of the Tribunal, at no time has Mr McGuirk paid or agreed to pay the lesser amount as suggested by Ms Davoren in her letter. 33 In his written submissions of 17 March 2007, at [62] and [63], Mr McGuirk contended as follows: '62. It is clear from the 'material' before the Tribunal, ...that the University is spending enormous sums of money in attempting to 'fight off' the FOI Applications made by Mr McGuirk, rather than determining them in accordance with the obligations imposed on the University under the FOI Act, ... 63. Simply put, the evidence which is before the Tribunal proves beyond reasonable doubt that University of New South Wales would rather spend many thousands of dollars employing legal counsel, and utilise an enormous amount of its internal legal and other resources in an attempt to 'persuade' Mr McGuirk to pay a few hundreds of dollars in advance deposit, than to determine his applications in accordance with the FOI Act. ...' 34 While these submissions were filed for the purpose of the Tribunal's initial determination as to jurisdiction, I have assumed, on the basis of the above comments of Mr McGuirk in his submissions and in his letter to Professor Wainwright, that Mr McGuirk contends that the decision of the University to request that he pay an advance deposit was made on an improper basis and hence so too was the decision to refuse to deal with his FOI request. The improper basis being an alleged intention by the University to request the advance deposit so that it could decline to deal with his request when it was not paid within the time requested. That is, Mr McGuirk alleged that the entire purpose of University seeking an advance deposit was so as to frustrate him in obtaining access to the documents he had sought. 35 As I have said, the onus is on the University to satisfy the Tribunal that its decision to refuse to deal with Mr McGuirk's application is justified. In light of Mr McGuirk's contentions, this also requires an examination of the decision of the University to seek an advance deposit. 36 In addition to the letters from Ms Gibson and Ms Davoren referred to above, the University relied on the evidence of Ms Gibson as set out in her statement, dated 23 January 2007. The statement concerns this application and another application Mr McGuirk had made seeking review of another decision of the University under the FOI Act. As pointed out by Ms Gibson in her statement, this application and the other application both related to documents concerning the private prosecution initiated by Mr McGuirk in 2003 against employees or former employees of the University. 37 In her statement Ms Gibson said that in the 2 years prior to the date of her statement (January 2007), Mr McGuirk had made approximately 26 FOI applications to the University and of these 4 sought access to documents the University held in regard to Mr McGuirk's private prosecution. She acknowledged that these FOI requests were not necessarily for the same documents. Having dealt with these earlier requests Ms Gibson said had enabled her to become familiar with the contents of the files that would contain the documents relevant to Mr McGuirk's request the subject of this application. 38 In her statement Ms Gibson again said that the University held 9 administrative files which in her opinion would hold documents relevant to Mr McGuirk's request. These she conservatively estimated as having 2000 pages within them. She also said that from her experience in dealing with previous requests of Mr McGuirk, the work involved in dealing with this FOI request would require examining every document in these files to determine their relevance to his request. Once identified as being relevant, that document would need to be copied and a determination would need to be made as to whether the document contained exempt material: see Schedule 1 of the FOI Act. If, on identifying relevant documents, a decision would then need to be made as whether to grant access or refuse access to the document concerned. Again, in light of her experience in dealing with Mr McGuirk's FOI requests, Ms Gibson said there would be a number of documents that would contain exempt matter and in some cases third party consultation would be required (see s.32 of the FOI Act). She said, in accordance with usual practices, a schedule of documents for which exemption may be claimed would need to be prepared. Ms Gibson again assessed the work involved in dealing with Mr McGuirk's FOI request that is relevant to this application. Her estimate, as a minimum, was 50 hours and at a cost of $30 per hour the estimated cost was $1,500. Mr McGuirk did not challenge the evidence of Ms Gibson in his written submissions. 39 On the basis of the terms of Mr McGuirk's FOI request and the evidence of Ms Gibson I am satisfied that McGuirk's FOI request, the subject of this application, involves the University examining and considering a large number of documents and hence would involve a considerable amount of time and resources by the University. As pointed out by the University in its submissions, a grounds for refusing access to documents is that 'work involved in dealing with the application for access to the document, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions': see s.25(1)(a1) of the FOI Act. 40 In regard to having requested Mr McGuirk pay an advance deposit, Ms Gibson said: '13. (a) … (b) The University does not routinely request advance deposits for processing Mr McGuirk's FOI applications, except where it considers the application to involve a large number of documents or a significant amount of work to identify the documents caught by his application. The current FOI applications capture thousands of documents (c) Mr McGuirk's FOI applications frequently involve multiple parts. (d) On only 1 occasion has the University received payment of an advance deposit by Mr McGuirk for his FOI applications. On another occasion, Mr McGuirk paid for part of an advance deposit request and then demanded its return prior to processing. On all other occasions, Mr McGuirk has refused to pay any advance deposit.' 41 On the basis of my findings above and the evidence of Ms Gibson, I am satisfied that the decision of the University not to continue to deal with Mr McGuirk's FOI request was made on a proper basis and was the correct and preferred decision having regard to the objectives of the Act as set out in s.5. 42 Contrary to Mr McGuirk's contention, in my opinion the decision to request and advance deposit was made on a proper basis and the estimated amount of time and cost in dealing with his request appears to have been appropriately calculated. I do not accept Mr McGuirk's contention that when Ms Gibson made her decision to request an advance deposit she had already decided to refuse to deal with his application under s.22(3) of the FOI Act. This is not what her letter says. She has merely stated that the University may make such a decision if he failed to pay the amount requested within the time requested. It was appropriate for her to do so. 43 As I have said previously, at the end of the day an agency is only able to charge the FOI applicant for the amount of time it actually spent on dealing with the FOI request and this is a decision which is reviewable by the Tribunal. Mr McGuirk appears to be saying that under no circumstances should he be requested to pay an advance deposit regardless of the terms of his request. This cannot be correct on a proper construction of the FOI Act. 44 Yet I agree with Mr McGuirk that an agency which exercises its discretion under ss.21 and 22 so as to frustrate and FOI applicant in obtaining access to the documents requested would be an improper exercise of that discretion. However, as I already said, in this application, there is no evidence to suggest that the University has exercised its discretion other than appropriately in the circumstances. 45 For the reasons set out above, the decision of the University to refuse to continue to deal with Mr McGuirk's FOI request is affirmed. 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.