Unfair limits on external review

Updated (21/1) with a couple of additional thoughts that hopefully make the point clearer.

The various Australian Freedom of Information acts provide that if an application is not dealt with within the statutory time limit, this constitutes a 'deemed refusal' of access to the requested documents, and gives rise to rights to seek review.

In the Federal and Victorian FOI Acts, there is a provision for application to the relevant tribunal in these circumstances.

The NSW Act is less precise, and a number of decisions last year have seen the Administrative Decisions Tribunal reject requests for review where the applicant did not respond to the 'deemed refusal' by asking for internal review.

Some of the outcomes are ridiculous. Take this (Cianfrano v NSW Premier's Department (2007) NSWADT 211) for example:

• 9 May 2006 - FOI application lodged with the Office of the Minister for Primary Industries
  
• 9 October 2006 - application (with the knowledge of the applicant) transferred from that office to the Premier Department in accordance with the Act
• 8 November 2006 - Premier's Department determines no documents held
• 10 November 2006 - applicant lodges request for external review by the Administrative Decisions Tribunal. The applicant seeks review of the 'deemed refusal', based on the failure of either agency to determine the application within 21 days. The Crown Solicitor's Office on behalf of the agency says that the applicant had a right to seek internal review of this decision by lodging an application before 27 June 2006. No application was lodged. The Act states that where an applicant has a right of internal review but fails to exercise it, the Tribunal does not have jurisdiction to review.
  
• 13 September 2007 - Tribunal accepts this argument and decides it has no jurisdiction to hear the matter on the grounds that the applicant had a right to internal review but had not exercised this right. The Tribunal interpreted the Act to mean that it only had jurisdiction to review a decision made on internal review, or a 'deemed refusal' of an internal review application.
  

All this suggests that way back in May 2006, the applicant's failure to seek internal review of a decision that hadn't even been made at the time meant that further rights of review were jeopardised because of the failure to seek internal review. In any instance where a decision on the application has not been made, the applicant can't bypass the agency and go direct to external review.

The decision in this case is not an isolated one - the same view has been taken in a number of other decisions.

I think there is an argument that these cases have been wrongly decided. None of the decisions give any weight to a provision in the Act (Section 56) that implies a right to seek review of a 'deemed refusal'. However if they are right there is a need to change the law to bring it into line with the more generous and sensible approach taken in the Victorian and Federal Acts. It's particularly important because the NSW Ombudsman has been pointing out for years that failure to respond to requests within time is a widespread problem.

This is yet another reminder to FOI applicants of the need for vigilance, in this case by keeping your eye on the calendar. If you don't receive a reply from a NSW government agency within the specified time, you need to fork out $40 to ask for internal review. Otherwise trotting along later to the ADT, you are likely to encounter an argument from the other side that the Tribunal has no jurisdiction to review the decision.