NSW Court of Appeal rules no go for Tribunal on adequacy of search for documents

In a decision that appears to further complicate things for those who seek to contest an agency determination under the NSW Freedom of Information Act, the NSW Court of Appeal has unanimously ruled that the Administrative Decisions Tribunal has no jurisdiction to examine issues concerning the adequacy of an agency's search to locate documents containing information of the kind requested.The result is if an agency says it can't locate a document that may have once existed, says it does not hold any documents, or that certain documents are the only ones held even where the applicant knows there are, or should or could be others, the Tribunal has no power to go behind the decision, examine any evidence put forward by the applicant, or order the agency directly to undertake a further or better search.

The reasoning (which appears to be a correct reading of the Act) is that the Tribunal only has jurisdiction to review a determination required by Section 24 of the Act, to refuse access to documents; a determination to refuse access is only in respect of documents that an agency says it holds, not others it can't find, or that it might hold ; and the Act is otherwise silent on Tribunal powers to examine the adequacy of the search by the agency for relevant documents.[Justice Basten 112-135]

In other jurisdictions, FOI legislation confers powers on external review to examine the adequacy of the search in certain circumstances, or has been interpreted in a way to allow the review to examine whether a determination was fully responsive to the request in that a reasonable search had been undertaken for all relevant documents.The decision overturns previous rulings by the Tribunal, rejects a decision of the Victorian Supreme Court on a similar issue, and distinguishes contrary decisions in the Commonweath and ACT tribunals.[ Justice Basten's conclusions at 133]

The unanimous decision of the Court was that the Act provided another avenue of review in that the Ombudsman specifically has powers to investigate a complaint regarding conduct in the handling of an FOI application. So in effect, anyone concerned about this aspect of an agency's response should take it up directly with that office. While this is correct, a complaint to the Ombudsman might not result in a satisfactory outcome: the Ombudsman may, or may not, investigate the complaint, and the agency may, or may not, respond positively to any Ombudsman recommendation. Meanwhile an applicant can't go to the Tribunal while a matter is being investigated by the Ombudsman. And of course time (and perhaps the importance of the requested documents to the applicant) passes.

Although not mentioned in the decision the Tribunal has powers (Section 39 of the Administrative Decisions Tribunal Act 1998) where a case is before it, to refer a matter that could be dealt with by the Ombudsman to that office, and under a memorandum of understanding between them, may refer a matter relating to administrative behaviour, and specifically a matter where an agency denies the existence of a document. The power has apparently rarely been used to date. However where a matter concerning search for documents is referred, the Tribunal won't be able to do anything if the Ombudsman reports back on inadequacies, and as mentioned above, the Ombudsman can only make recommendations that an agency take action to correct any shortcoming in procedure.

Justice Basten suggests (correctly) that the decision is not the desirable outcome, and says such outcomes are not the responsibility of the court, which must interpret and apply the law. Fixing any problem was for those who make the laws in parliament:

"The reasoning in a number of the cases placed weight upon the desirability of the Tribunal having power to review the adequacy of a search and the power to direct the agency to undertake further searches. No doubt there are reasons of policy why it might be thought desirable that the Tribunal entitled to review the merits of a refusal to supply access to documents should have power at least to direct further inquiries in relation to the ascertainment of the class of documents to be considered. On the other hand, it may be thought that, administrative review of the search process being available through the office of the Ombudsman, an applicant not satisfied with the outcome of such an investigation should be restricted to judicial review, even though that has potential costs ramifications and is limited to assessing whether the agency has failed to carry out its legal obligations or has acted beyond its legal powers. These matters are, however, for the Parliament and do not form a basis for the Court to reconstruct the statutory language to give effect to that which is perceived to be a desirable outcome. "[134]

Here is what the President of the Tribunal, who has 10 years of experience in applying the Act and observing agency conduct, had to say(quoted by Justice Basten at 81) in his decision that has been reversed by the Court of Appeal, about the situation that now applies in NSW (emphasis added):

"65........The situation that arose in (the case decided by the Victorian Supreme Court) underlines the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. The Tribunal may have to ascertain whether there has been a possible failure by the agency to address all documents in its possession. Such a failure can properly [be] characterised as a refusal of the kind referred to in s 24(2); and is reviewable.
66 Were the agency’s submissions in the present case(that the Tribunal has no jurisdiction) to be accepted, the Tribunal would be deprived of any capacity to go behind a mere statement by the agency that it does not hold any further documents.
67 An applicant is entitled to put such a statement in issue on the basis contemplated by s 24(2). To interpret the Act otherwise would result in a perversity. An agency could issue a token determination relating to some only of the documents identified by the request, and remain silent as to the other documents...."

What does the Premier, the minister responsible for the NSW Freedom of Information Act, who remains uncommitted to any change in the Act or the way it is being administered, make of what the highly experienced President of the Tribunal regards as a "perversity"?

The decision( the substance of which concerns one in a series of long running applications by Robert Cianfrano for documents concerning the sale of the Sydney Markets) is here and also includes references to a series of administrative oversights on the long path from the Tribunal to the Court of Appeal.

The decision also means that one element of government policy about the administration of the NSW FOI Act no longer applies because it is inconsistent with the law. The FOI Manual published by the Department of Premier and Cabinet and the Ombudsman includes a section (4.8) on "Documents which cannot be located", and the following:

"4.8.4 In the case of either destroyed or lost documents, the agency should make a determination refusing the application, to ensure that the applicant will have full rights of review. Only where the agency is sure that it has never held a document should the applicant be advised that the document is not held by the agency under s.28(1)(b). [policy]"

The Court of Appeal says[135] the law is that "the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24.". The decision means there are no rights to internal review or review by the Administrative Decisions Tribunal where a document is no longer held because it has been lost, destroyed or cannot be found..