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Wednesday, August 13, 2008

In the NSW ADT, what an agency says about documents held, goes.

The new harsh reality arising from the NSW Court of Appeal decision that the Administrative Decisions Tribunal cannot look behind an agency claim about what relevant documents are held is captured in this Tribunal decision dismissing a review application:

"In the course of his reasons, Basten JA noted that the Commonwealth Freedom of Information Act 1982 is drafted differently. In particular, s24A of the Commonwealth Act specifically confers power on an agency to refuse a request for access to a document if all reasonable steps have been taken to find the document, and the agency is satisfied that the document is in the agency’s possession but cannot be found, or does not exist. A decision to refuse access on that basis is reviewable by the Commonwealth Administrative Appeals Tribunal under s55(1)(a), as “a decision refusing to grant access to a document in accordance with a request”.

The Court of Appeal decision is of course binding on the Tribunal, and is clear. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the terms of a request for access. The applicant’s reliance on the Federal Court decision in Chu v Telstra Corporation Ltd [2005] FCA 1730 is misplaced, given the differences in drafting between the Commonwealth Act and the New South Wales FOI Act. In this matter the applicant requested access to the “file” referred to in Sergeant Weston’s report dated 28 February 2006. The respondent has provided access to what it says is the only document that falls within the scope of that request, namely Senior Sergeant Fitzjohn's fax dated 10 February 2006. The applicant's contention that there must be more documents is not a determination reviewable under s53. In the absence of jurisdiction, the appropriate course is to dismiss the application."[20-21]

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