ADT FOI decision on sufficiency of agency search for documents

The Administrative Decisions Tribunal in Cianfrano v Department of Commerce (No.2) (2006) NSWADT195 has found that it has powers to examine whether an agency has conducted a sufficient search for documents.

While this is consistent with a number of previous decisions, (originally Beesley v NSW Police Service (2000) NSWADT 52) arguments have been put in a number of recent cases that these earlier decisions were wrongly decided.

President O’Connor disagreed with some of the reasoning in the Beesley decision but reached the same conclusion.

He said that Section 24 of the FOI Act requires an agency to determine whether to grant or release documents it holds. It also provides that a failure to make a determination is taken to be a deemed refusal.

The ADT had to satisfy itself that an agency has fully determined an application. If an FOI applicant contended there has been a failure to locate relevant documents, and put credible material before the Tribunal that suggested an arguable case, the Tribunal had to consider whether there had been a possible failure by the agency to address all the documents in its possession. Such a failure could be characterised as a deemed refusal, and was a reviewable decision.

President O’Connor said that an applicant could complain to the Ombudsman about such matters, and that the ADT could refer a matter to the Ombudsman for review. However the Tribunal had powers to press an agency to prove that its determination had fully responded to the request, thus enabling it to inquire about the adequacy of the search for documents.

The applicant in this case has listed a range of documents he contends are relevant to the application. A further hearing is to be scheduled to consider next steps.