Johnston v Department of Education and Communities [2013] NSWADT 132

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Johnston v Department of Education and Communities [2013] NSWADT 132 Hearing dates: 22 November 2012 Decision date: 11 June 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: Application dismissed. Catchwords: Government information - public access - whether application for review of decision that original and amended access application were invalid applications were lodged within time - whether time should be extended to lodge applications out of time - whether decision to refuse to refund application fees is a reviewable decision Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 (repealed) Government Information (Public Access) Act 2009 Government Information (Public Access) Regulation 2009 Category: Principal judgment Parties: Phillip Johnston (Applicant) Department of Education & Communities (Respondent) Representation: P Johnston (Applicant in person) E Stathis, Department of Education & Communities (Respondent) File Number(s): 123122

REasons for decision

Introduction 1On 16 May 2012, the applicant, Mr Phillip Johnston, made an application seeking review of a decision of the respondent, the NSW Department of Education and Communities. In that application, the applicant identified the original decision as being the decision made on 6 March 2012. The decision, made pursuant to the Government Information (Public Access) Act 2009 (GIPA Act), related to the applicant's request for access to 4 specified items of government information held by the respondent. 2The applicant had originally made his request for access on 24 January 2012. He sought access to 4 specified items of information. On 30 January 2012, the respondent gave notice to the applicant that it had determined that his application for access was invalid because the information he had provided did not enable the respondent to identify the information sought. 3On 12 February 2012, at the request of the respondent, the applicant reworded, in part, the terms of the 4 specified items of information. On 13 February 2012, the respondent issued a further notice to the effect that it had determined that the applicant's amended access application was also invalid. 4On 27 February 2012, the applicant wrote to the respondent providing further information about the information for which he sought access. He also said he disagreed with the respondent's assessment that his initial and amended application were invalid. 5On 28 February 2012, the respondent gave notice, to the applicant, of its determination that the applicant had made a valid amended application for personal information. That determination was made on the basis of the additional information the applicant had provided. In its notice, the respondent also set out the terms of the amended valid application, which continued to specify 4 items of information. 6In its original determination of the applicant's amended valid personal access application, the respondent determined that information as specified in item 1 was not held by the respondent. In regard to the remaining items, the respondent determined that the applicant had previously been provided with access to that information. 7On 15 March 2012, the applicant sought internal review of the decision of the respondent in regard to the information specified in item 1. He also sought a refund of his $30 application fee. 8On 3 April 2012, the respondent determined the applicant's internal review application in regard to its determination that it did not hold any information falling within item 1 of his access request. The respondent's determination on internal review was to affirm the original decision. 9On 12 April 2012, the respondent determined the applicant's request for a refund of his application fee. The respondent determined to deny the applicant's request for a refund. 10In his application for external review, the applicant said that he was seeking review because: 1. I was aggrieved with some of the decision/s provided in response to my original application, and decisions/s for my subsequent application for internal review that was done in two parts. 2. I require an independent review of the decision/s provided in response to my application, in particular the decision/s for my subsequent application for internal review done in two parts. 11During the course of the planning meetings, the applicant identified the issues for which he was seeking review were as follows: * the decision of the respondent that his original application was an invalid application, and * the decision of the respondent to refuse to refund his application fee. 12The applicant did not press review of the decision of the respondent that was made on 6 March 2012 (i.e. the decision that 'no record was held ' in regard to item 1 of his further amended access application). In this regard I note the respondent provided the applicant with considerable detail of searches that had been made. It is my understanding that the applicant presses his application in regard to the respondent's decision that his original and amended application were invalid as he believes the terms of these applications were sufficiently clear for the respondent to identify the information he was seeking. 13The respondent contended that the applicant's application for a review of the decision of the respondent that his original application was invalid was out of time and time should not be extended. In regard to the applicant's application for a review of the decision to refuse to refund the applicant his application fee, the respondent contended the tribunal had no jurisdiction to hear and determine that application. 14At the request of the applicant these matters were heard on 22 November 2012. At the conclusion of the hearing I reserved my decision. I have now considered the material before the tribunal and for the reasons set out below, I find, in regard to each of the matters in issue, the contentions of the respondent are correct.