Sawires v Commissioner of Police, New South Wales Police [2008] NSWADT 91

CITATION: Sawires v Commissioner of Police, New South Wales Police [2008] NSWADT 91

DIVISION: General Division

APPLICANT Emad Sawires PARTIES: RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 073218

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 23 November 2007

DATE OF DECISION: 19 March 2008

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Preliminary matter

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

BY v Director General, Attorney General's Department [2002] NSWADT 79 Canobolas Heritage Railway Society Inc v General Manager Bathurst Regional Council [2005] NSWADT 61 CASES CITED: McDonald and anor v Director General, Department of Lands [2008] NSWADT 25 McGuirk v University of New South Wales [2007] NSWADT 258 Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196

APPLICANT In person REPRESENTATION: RESPONDENT D Hartman, solicitor

ORDERS: The application is dismissed for want of jurisdiction.

REASONS FOR DECISION 1 Mr Sawires has applied to the Tribunal for review of the determination in relation to his application for documents pursuant to section 17 of the Freedom of Information Act 1989 ("the FOI Act"). In his application dated 21 November 2006, but received by the respondent on 14 December 2006, Mr Sawires requested: Mascot/Botany Bay Police station Custody Video Tapes for the 7 April 2006 between 3:30pm and 7:00pm. Custody Tape showing myself … in custody. Custody Number: U 26542736 SNI: 16895793 2 The respondent has identified the following documents ("the tapes") as falling within the scope of the application: 1) Video Tape 152A Mascot Police CCTV Job Number 0897706 2) Video Tape 152C Mascot Police CCTV Job Number 0897706 3) Video Tape 152D Mascot Police 15:45 to 18:50 Job Number 0897706 4) Video Tape 152 E Mascot 15:45 to 18:50 Job Number 0897706 3 Pursuant to section 18(3) of the FOI Act the application should have been determined within 21 days after receipt. Section 24(2) of the FOI Act provides that any application not determined within 21 days is deemed to be a refusal to grant access to the documents. 4 Nevertheless, a delegate of the respondent made a purported determination ("the original determination") in respect of the application on 21 March 2007. The original determination was to refuse to release the tapes on the grounds of the exemptions in clauses 4(1)(g) and 6(1) of Schedule 1 to the FOI Act. Notwithstanding that refusal, the delegate granted Mr Sawires access to the tapes pursuant to section 27(1)(c) and provided him with the name of a contact person at the police station for the purpose of viewing the tapes. 5 By an application dated 30 March 2007, received by the respondent on 14 April 2007, Mr Sawires sought an internal review of the original determination. He stated: "In my application dated 21st November 2006, I requested two documents one being Custody Tape from Botany Bay police station taken on 7 April 2006. And custody photographs from of myself taken at: (a) Newtown police station on the 21 May 2004 (b) St George police station on 8 July 2004 (c) Mascot police station on the 7 April 2006 And any other photographs of me (Emad Sawires) on New South Wales Police records. In your notice of determination dated 21 March 2007, you have only addressed the release of Botany Bay police station custody tapes taken in 7 April 2006. What is the Commissioner's position on the custody photographs? ... I understand that I have been given access to view the tapes at the Police station, unfortunately that's not what I require, and if I don't get some copies of the video tapes I will be instructing my legal representative make an application to the Administrative Decisions Tribunal, which in this instance I will incur legal costs." 6 A delegate of the respondent purported to undertake an internal review of the original determination ("the internal review") and this was ultimately completed on 6 June 2007. The delegate of the respondent who undertook the internal review noted that Mr Sawires' application dated 21 November 2006 had not requested custody photographs and therefore the original determination and the internal review only considered the tapes. 7 The original determination to refuse the release of the tapes was varied and the release of the tapes was refused pursuant to section 25(1)(b1) of the FOI Act. 8 By application dated and filed on 17 July 2007, Mr Sawires applied to the Tribunal for external review of the respondent's determination. 9 The parties agreed that the matter should be determined on the basis of the material filed without the need for hearing. The respondent has provided the Tribunal with copies of the tapes. Each party has filed written submissions and the respondent also relies on a Statement of Evidence of Sergeant Michael Streatfeild of the Forensic Imaging Unit, New South Wales Police Force. 10 An issue has arisen in regard to whether the Tribunal has jurisdiction to determine this matter. The issue is whether Mr Sawires lodged his application for review within the time prescribed by section 54 of the FOI Act; if not, whether there is power to extend the time; and if so, whether an extension should be granted. Each party has filed written submissions on the jurisdiction issue. Relevant legislation 11 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The FOI Act imposes limitations on that right. 12 Section 25(1) provides that an agency may refuse access to a document if it is exempt. The exemptions are set out in Schedule 1 to the FOI Act. Clause 4 of Schedule 1 provides in part: 4 Documents affecting law enforcement and public safety A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: … (g) to endanger the security of any building, structure or vehicle, or … (2) A document is not an exempt document by virtue of subclause (1): (a) if it merely consists of: (i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or (ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or (iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or (iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or (v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and (b) if disclosure of the document would, on balance, be in the public interest. … 13 Clause 6 of Schedule 1 provides: 6 Documents affecting personal affairs (1) 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 (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 14 Section 24(2) of the FOI Act provides: (2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates. 15 Section 34(2)(e) of the FOI Act provides that an application for internal review of a determination shall be lodged: (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. 16 Section 34(6) of the FOI Act provides that: (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. 17 The right to make an application for review to the Tribunal is conferred by section 53 of the FOI Act. Section 54 of the FOI Act sets out the time limit: 54 Time within which review applications to be made 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 (b) if a complaint is made to the Ombudsman in relation to the determination-within that period of 60 days and: (i) the Ombudsman refuses to investigate the conduct complained of or discontinues an investigation of that conduct within 60 days after the complainant is informed of that fact, or (ii) the Ombudsman completes an investigation of the conduct complained of within 60 days after the results of the investigation are reported to the complainant. 18 Section 57 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") enables the Tribunal to extend the time for making an application. That section provides: 57 Late applications to Tribunal (1) Despite section 55 (1)(d), the Tribunal may, on application in writing 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. (2) The time for making an application for a review of a reviewable decision may be extended under sub-section (1) although that time has expired. (3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made). Whether Mr Sawires lodged his application for review within the time prescribed by section 54 of the FOI Act 19 The respondent received Mr Sawires' application on 14 December 2006. A delegate of the respondent made the original determination on 21 March 2007 that is 97 days after the application was received. Pursuant to section 24(2) of the FOI Act the agency is taken to have determined the application by refusing access to the tapes. 20 As there was a deemed refusal pursuant to section 24(2) of the FOI Act, Mr Sawires' application for internal review of the deemed refusal should have been lodged within 49 days after the respondent received the application (that is by 1 February 2007 if section 34(2)(e)(ii) applies) or within such further time as the principal officer of the agency may allow (if section 34(2)(e)(iii) applies). 21 The respondent received Mr Sawires' application for internal review on 14 April 2007. 22 In my view it can be implied that the principal officer of the respondent, pursuant to section 34(2)(e)(iii,) allowed Mr Sawires further time to lodge his application for internal review. It could be implied that the further time that the principal officer allowed Mr Sawires was until the date that his application for internal review was actually received that is 14 April 2007. 23 Pursuant to section 34(6) of the FOI Act, an agency is deemed to have refused access to document if it fails to determine an application for internal review within 14 days after it is received. The internal review was ultimately completed on 6 June 2007 that is 53 days after the date that it was actually received. There was therefore a deemed refusal pursuant to section 34(6) on 28 April 2007-14 days after the respondent received Mr Sawires' application for internal review. 24 Section 54 of the FOI Act provides that a review application to the Tribunal is to be made within 60 days after notice of the determination to which it relates is given to the applicant. An exception applies in certain circumstances that are not relevant to this matter. Where, as here, there is a deemed internal review determination under section 34(6), it is necessary to identify the date on which this 60-day period commences. Section 54 does not make any provision for such a situation. 25 This issue was considered in Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196. Judicial Member Britton rejected the arguments that the Tribunal had discretion in relation to the time limit imposed on applicants and that the 60-day period only commenced when the applicant received notice from the agency, even though this was outside the required time frame and the internal review application was already deemed to have been refused. The Judicial Member stated: "27 While section 34(6) is obviously a beneficial or protective provision, designed to circumvent bureaucratic obstructionism or negligence, there are limits to the extent to which it can be interpreted in favour of a tardy applicant. Sixty days is an unusually generous appeal period in any event. The Tribunal has no power to extend the time of appeal whether a reasonable explanation is offered or not. 28 It would seem to me to be unfair, however, to expect that Mr Wilmshurst knew or was on constructive notice of the rejection of his application on 8 August. If the University had complied with section 34(6), and notice had been sent that day by post, Mr Wilmshurst would have had until 13 August plus 60 days to apply to the Ombudsman. 29 Taking into account the realities of modern bureaucracies it would be utopian in the extreme to expect a government agency of any size, whose main administrative efforts are directed to achieving its core objectives and tasks, to expect that internal reviews would receive inordinately high priority. That they did not in the case of the University is apparent from the fact that an answer was not provided in writing until six months after the deadline had passed. One assumes that most government agencies do better than that but it would be wrong to assume that notices of determination are, as a matter of course, sent out by the end of the 14-day period allowed for internal review. Applying one's common sense and experience, it would be reasonable to expect that many agencies allow themselves the 14-day period and a further reasonable time to send out the requisite notices. 30 The Act is silent on the time, which will be allowed to agencies to send their notices. It would follow from general principles of law that the time allowed would, if not specifically regulated, be a reasonable one. What is reasonable will depend on circumstances and may vary from case to case. 31 Mr Wilmshurst is obviously an intelligent and educated applicant. That is one of the circumstances to be taken into account in this instance. It appears that he is very familiar with the legislation. That is another circumstance to be taken into account. What might be regarded as a reasonable time to allow for constructive notice would probably be a lesser period in his case than in, for example, the case of a poorly educated migrant for whom English is not his or her first language. I have already alluded to the realities of modern administration, which are a further factor to be taken into account. It is also necessary to take into account the fact that the legislation is beneficial in intent and the purpose of section 34(6) is to advantage rather than disadvantage applicants under the Act. 32 Time started to run for Mr Wilmshurst once he received constructive notice of the deemed refusal of his application for access to the documents, which took place by 8 August. I am not to be construed as seeking to establish a general principle or rule of law or statutory construction when I reach the following conclusions. In this case I would allow a period of 14 days for constructive notice plus the five days Mr Wilmshurst would have been allowed for a postal notification. In short, I would allow 19 days plus the 60-day appeal period to him." 26 In Canobolas Heritage Railway Society Inc v General Manager Bathurst Regional Council [2005] NSWADT 61 the Tribunal calculated that, for the purpose of section 54(a), time began to run after the date of the deemed refusal. 27 In McGuirk v University of New South Wales [2007] NSWADT 258 ("McGuirk") Judicial Member Higgins considered that section 54 of the FOI Act required Mr McGuirk to have lodged his application 'within 60 days of the purported internal review determination'. 28 If Canobolas is applied the external review application ought to have been made within 74 days after the respondent received the internal review application that is by 29 June 2007. If Wilmshurst is applied, and a total of 79 days is allowed, the external review application ought to have been made by 4 July 2007. An application lodged after that day would not comply with section 54 of the FOI Act. 29 Mr Sawires' application to the Tribunal was filed on 17 July 2007. In my view, the approach taken in Wilmshurst is to be preferred. However, on either construction, Mr Sawires' application was brought outside the time allowed by section 54 of the FOI Act. Is there power to extend the time to lodge an application for review? 30 The issue of whether there is power to extend the time to lodge an application for review was recently considered by Judicial Member Pearson in McDonald and anor v Director General, Department of Lands [2008] NSWADT 25. She considered various authorities that had looked at the issue and stated at paragraphs [26] – [27] of her reasons: 26 As acknowledged in the written submissions, there are divergent views within the Tribunal as to whether there is power to extend the time for an application for review of a decision made under the FOI Act. The decision in Canobolas favours an interpretation of the legislation that since section 53(5) of the FOI Act does not expressly refer to section 57 of the ADT Act, the power conferred by that section to extend the time is available. To the contrary are the decisions in Waite [ Waite v General Manager, Hornsby Shire Council [2004] NSWADT 93], Black [ Black v General Manager, Bathurst City Council [2001] NSWADT 139] and Wilmshurst referred to by the respondent, and Waite v General Manager, Hornsby Shire Council [2007] NSWADT 93, McGuirk v University of New South Wales [2007] NSWADT 258, and Dezfouli v Justice Health [2007] NSWADT 262. These decisions are based on section 40 of the ADT Act, which provide that the provisions of the ADT Act have effect subject to any contrary provision being made in a relevant enactment, which includes section 54 of the FOI. The reasoning in these decisions is supported by the recent decision of the Appeal Panel, in construing the operation of section 40 of the ADT Act in the context of the Retail Leases Act 1994 : Tringas v Quach (RLD) [2007] NSWADTAP 35. The Appeal Panel concluded in that decision that there was no ground on which the Supreme Court decision in Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062 could be distinguished, so as to provide scope for a ruling that the time limit in section 32A(2) of the Retail Leases Act 1994 could be extended under section 44 of the ADT Act 27 Cheung v Administrative Decisions Tribunal [2000] NSWSC 10632 concerned the relationship between section 329 of the Local Government Act 1993 (imposing a time limit for an application for review) and section 44 of the ADT Act (which is in similar terms to section 57 of the ADT Act, and allows an extension of time). Dunford J held that the determination of whether two Acts contain "any contrary provision" for the purposes of section 40 of the ADT Act depends on the operation rather than on the precise words used. There is an inconsistency in operation between section 54 of the FOI Act (which specifies the time within which an application for review "is to be made") and section 57 of the ADT Act. The sections are not compatible. Section 40 of the ADT Act applies to reconcile the inconsistency, and by virtue of section 40(1), the provisions of the FOI Act apply. That is so even though the ADT Act was enacted after the FOI Act: section 40(3) ADT Act. In Cheung, Dunford J accepted that a consequence of concluding that section 44 of the ADT Act had to be read subject to section 329 of the Local Government Act 1993 was that the words in brackets in sub-section 44(3) would have no effective operation. The same consequence follows in this case, namely that the words in brackets in section 57(3) of the ADT Act have no effective operation. 31 Judicial Member Pearson concluded that section 57 of the ADT Act does not apply to an application for review of a decision made under the FOI Act, and the Tribunal has no power to hear and determine an application for review of such a decision that does not comply with section 54 of the FOI Act. There is no power to extend the time for the lodging of an application for review. 32 I propose to follow McDonald in this matter as a matter of judicial comity. I note the views expressed by the President in BY v Director General, Attorney General's Department [2002] NSWADT 79 at [22] - [23] where he stated: 22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister's submissions have been rejected, there was no appeal; but that may have been, as counsel for the Administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed. 23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, I consider that some discretion should be allowed to a Divisional Head sitting at first instance to revisit prior rulings, where the Divisional Head has doubts about the prior rulings or the questions involved are of great significance, such as ones raising important issues of power or jurisdiction. (Such a ruling may itself be appealed to the Appeal Panel. In that event, the Divisional Head, who would customarily preside, is ineligible. Where there is an appeal in relation to such a ruling, the Appeal Panel should, in my view, give consideration, if it regards the ruling as doubtful, to referring the controversial question to the Supreme Court for determination.) 33 While I consider that these are ' important issues of power or jurisdiction', they are best determined at the Appeal Panel level. I note that Judicial Member Pearson's decision in McDonald is under appeal and the appeal has yet to be determined. Conclusion 34 In my view, Mr Sawires' application to the Tribunal was not made within the time required pursuant to section 54(a) of the FOI Act. The Tribunal has no power to extend the time for the lodging of an application for review. Accordingly the Tribunal has no jurisdiction to deal with the application. Order The application is dismissed for want of jurisdiction.