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..

NSWADT override discretion limited where legal privilege applies

The background and complex detail of a five year battle (and numerous Tribunal and court decisions) arising from a Freedom of Information application for access to legal advice about responsibilities of the University Council provided to the University of NSW will only be of interest to those very serious about their NSW FOI. The culmination, in the Court of Appeal in McGuirk v University of NSW [2009] NSWCA321 involved a draw for the parties on legal points as the two issues for consideration went one each way but Mr McGuirk will end up with his document if this is the end of the ride, and with a limited order for costs for part of the proceedings.

Of broader significance however was that in the course of the decision the Court unanimously declared [92] the NSW Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1987 to grant access to a document which is found to be exempt by virtue of Schedule 1, cl 10 ( the legal professional privilege exemption) of the Freedom of Information Act 1989 (NSW). As explained below (with all due respect etc) the reasoning for the decision seems questionable.Mr McGuirk gets to prevail for reasons that are too complicated to explain here [41-87 if interested].

There is nothing in the relevant NSW laws (unlike Federal legislation) that states the Tribunal cannot order the release of an otherwise exempt document. But no provision (unlike Victoria) either that confers an override discretion. The issue of the Tribunal's powers on review of Freedom of Information decisions has been long contested.The Supreme Court (Nicholas J) in another case involving the same parties, University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and preferable decision, consistent with the objects of the Act. The reasoning was that Section 25 of the NSW FOI Act provides that in determining an application an agency may (not shall) refuse access to an exempt document. Section 63 of the Administrative Decisions Tribunal Act provides:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

Justice Nicholas cited the following passage from the Tribunal decision in Mangoplah as correctly stating the position:

“85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it”.

In the Court of Appeal, the only ground of appeal by the University against a decision of the Tribunal Appeal Panel considered [26] was that the Panel had erred in proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege. The University submitted [31] that any power a relevant officer of the University may have had to grant access to a document subject to legal professional privilege arose under the general law and not under any enactment. Justice Basten (with whom Justices Ipp and Macfarlan agreed) said:

32 Because s 63(2) is limited to the exercise of functions conferred or imposed “by any relevant enactment” the power to waive legal professional privilege is not a power enjoyed by the Tribunal..... A relevant enactment must be an Act, regulation, by-law, rule or ordinance.. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions....

33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) of the ADT Act to waive any legal professional privilege as might remain extant.

The problem with this is that while there is strong legal precedent for the general proposition, the FOI Act contains a clear additional statutory provision regarding release of documents, including any containing legal advice.The decision completely ignores the FOI Act- clearly an enactment for the purposes of Section 63(2) of the ADT Act- and Section 25 which contains a provision of the kind contemplated by Section 63(2): the exercise of functions by the administrator who made the decision, that is to release an otherwise exempt document.This isn't waiver but a statutory discretion. Parliament didn't put legal privilege documents outside the scope of the discretion. Section 25 formed a key element in Justice Nicholas' reasoning, but doesn't get a mention anywhere in Justice Basten's consideration [29-40] of the relevance of other provisions of the ADT and FOI acts. Section 63(2) provides the Tribunal with the same functions as were available to the determining officer.

Justice Nicholas' decision about ADT powers had for different (and more understandable) reasons been qualified by the Appeal Panel in IPART v Services Sydney [2008] NSWADTAP 79. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

This issue of ADT override discretion will not be relevant when the NSW FOI Act is replaced by the Government Information (Public Access) Act early in 2010. The issue in any ADT review of refusal of access under GIPA (except those concerning Cabinet and Executive Council documents where review is to be limited to whether there are reasonable grounds for the claim) will be whether there is an overriding public interest against disclosure of the information. Those with FOI cases before the Tribunal concerning legal professional privilege claims however can forget arguing that the Tribunal should exercise its discretion to grant access- unless there are any takers for another Court of Appeal challenge?

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]