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[2003] AATA 1197
Administrative Appeals Tribunal of Australia
2003-11-26
Original judgment source is linked above.
CATCHWORDS - JURISDICTION - FREEDOM OF INFORMATION - transfer of Freedom of Information request - whether Tribunal has jurisdiction to review the decision to transfer the request - Tribunal has no jurisdiction.
Freedom of Information Act 1982 ss. 4, , , , , and
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, (1990) 94 ALR 11
Director-General of Social Services v Chaney [1980] FCA 87; (1980) 3 ALD 161
DECISION AND REASONS FOR DECISION [2003] AATA 1197
1. on or about 10 April, 2003, the respondent transferred to the Australian Federal Police that part of the applicant's request dated 10 March, 2003 relating to documents No. 17, 41, 46, 49 and 213 identified in the Schedule of Correspondence attached to Ms Helen Fleming's decision dated 11 April, 2003; and
2. the Tribunal does not have jurisdiction to review the Ombudsman's decision to transfer that part of the applicant's request relating to documents No. 17, 41, 46, 49 and 213 identified in the Schedule of Correspondence attached to Ms Helen Fleming's decision dated 11 April, 2003.
On 21 July, 2003, the applicant, Ms Helen Bienstein, applied for review of a decision dated 21 May, 2003 by the respondent, the Commonwealth Ombudsman ("the Ombudsman"). The Ombudsman had varied an earlier decision by one of his delegates, Ms Fleming, in relation to Ms Bienstein's request dated 10 March, 2003 for access to certain documents under the Freedom of Information Act 1982 ("FOI Act"). One of the grounds upon which Ms Beinstein sought review of the decision was that certain items in her request for access should not have been transferred to the Australian Federal Police. I have decided to separate this part of the matters addressed in Ms Bienstein's application from the remainder as there is a question whether the Tribunal has jurisdiction to review it. In order to resolve the question of jurisdiction, the parties were directed to lodge written submissions and each has done so. Ms Bienstein indicated in a letter dated 31 October, 2003 that the matter "... may proceed either on the papers or at a fairly brief hearing. ...". The Ombudsman consented to this course of action.
2. There are two issues in this case. The first is whether the Ombudsman transferred Ms Bienstein's request, or part of it, to the Australian Federal Police ("AFP"). If so, the second is whether the Tribunal has jurisdiction to review that decision.
3. On 19 February, 2003, Ms Bienstein sought access to all correspondence that had passed between her and the Ombudsman in 1999 and 2000 (T documents, page 30). She stated that the request was made outside the FOI Act but, after being given access to a number of documents in a letter dated 19 February, 2003, she made a request under the FOI Act. That request, which was dated 10 March, 2003, was for access to:
2. all documents held in the other three Bienstein files that had not been provided previously;
3. All documents that came into existence as a result of my complaints and their investigation, which complaints related to the Family Court of Australia, to the AFP and to the operation of the Commonwealth Ombudsman's office;
4. Documents and other records provided by AFP Internal Investigation;
5. Records of Nerys Jones's communications with Federal Agents Lee and Britten;
6. Documents that came into being when Federal Agents Werts and Bates reviewed Federal Agent Britten's decisions and actions regarding my criminal complaint against Guest J;
7. Records of alleged input from Laurel Johnson and/or others in the Attorney General's Department and from the Office of the Director of Public Prosecution;
8. Records of contact with Ministers and or Ministerial staff;
9. Records of advice as to which agency and/or Minister has a duty to assess and investigate information that alleges criminal behaviour of Court Officers, Judges and/or other prominent persons;
10. documents specifying policy relating to `batch files';
11. legislation that is said to permit creation and destruction of `batch files';" (T documents, page 26 and 27)
4. The FOI Coordinator in the Ombudsman's office, Ms Alexandra Ryan, wrote to the AFP's FOI Coordinator, Ms Joan Lucas, regarding certain documents sought by Ms Bienstein on 25 March, 2003 and 2 April, 2003 (T documents, pages 38 and 39). Ms Ryan attached copies of the documents that she said were related to the AFP and which were covered by Ms Bienstein's request. She also attached a copy of Ms Bienstein's request and asked either for the AFP's "comment on release" (T documents, page 38) or its "opinions on the release" (T documents, page 39) of the documents. Ms Ryan also noted that the request had been received on 12 March, 2003 and that the decision was due on 12 April, 2003.
5. On 10 April, 2003, Ms Ryan sent an email to Mr Paul Bluck, who is the Director, Legal Policy, in the Ombudsman's Office telling him that she had been waiting for Ms Lucas to get back to her "about the AFP documents" and describing the documents as "... mostly documents from Ms Bienstein that the AFP have forwarded to us with a covering letter ..." (T documents, page 40). Later that same day, Mr Bluck sent an email to Ms Ryan stating the Ms Lucas had called and advised that "they will accept transfer" (T documents, page 40).
6. On 11 April, 2003, a delegate of the Ombudsman wrote a letter advising Ms Bienstein of her decision on her request. In relation to documents 17, 41, 46, 49 and 213, the delegate advised Ms Bienstein:
"The Australian Federal Police has accepted transfer of that part of your request which related to documents numbered 17, 41, 46, 49 and 213. You can expect to hear from the AFP about these documents." (T documents, page 41)
In a Schedule of Correspondence attached to the delegate's letter and showing the date and description of the document together with a decision regarding access under the FOI Act, the words "transfer to AFP" appeared against each of the five transferred documents. The description of each of the documents in the Schedule of Correspondence reveals that the documents were given to the Ombudsman by the AFP or originated in the AFP.
7. In a letter dated 30 April, 2003 to Ms Lucas, Mr Bluck referred to a telephone conversation between Ms Ryan and Ms Lucas earlier that day. He confirmed that the Ombudsman's Officer had "... formally transferred that part of Ms Bienstein's request dealing with documents originating from the AFP to the AFP under section 16 of the FOI Act." (T documents, page 62)
The Tribunal's jurisdiction to review a decision
8. The Tribunal may only review a decision if it is specifically given the power to do so by either the Administrative Appeals Tribunal Act 1975 ("AAT Act") or another piece of legislation. This is the effect of s. 25 of the AAT Act. Section 25(1) provides that:
"An enactment may provide that applications may be made to the Tribunal:
(1) for review of decisions made in the exercise of powers conferred by that enactment; or
(2) for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment."
The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made (s. 25(3)).
"The Tribunal has power to review any decision in respect of which application is made to it under any enactment."
10. A reference in the AAT Act to a "decision" includes:
"(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing." (s. 3(3))
11. The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision. The first is to identify precisely the decision of which review is sought and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decision.
Did the Ombudsman make a decision under s. 16 of the FOI Act?
12. In this case, the Ombudsman states that he decided to transfer part of Ms Bienstein's request to the AFP under s. 16.. In the submission made on his behalf, he conceded that he holds documents, which originated in any agency whose actions he is investigating as a result of a complaint made to him under the Ombudsman Act 1976 and, in this case, under the Complaints (Australian Federal Police) Act 1981. Those documents relate to the investigation and are held by the Ombudsman for the purpose of carrying out, or overseeing, an investigation. For reasons set out in the submission, he has adopted the practice of transferring requests he had received under the FOI Act to the agency from which he has received the documents so that it can make a decision whether or not to give access to them.
13. As the AFP is not an agency referred to in Schedule 2 to the FOI Act and as the documents, or copies of them are in the Ombudsman's possession, s. 16(1)(b) is relevant:
"Where a request is made to an agency for access to a document and:
(b) the subject-matter of the document is more closely connected with the functions of another agency than with those of the agency to which the request is made;
the agency to which the request is made may, with the agreement of the other agency, transfer the request to the other agency."
The Ombudsman and the AFP both come within the description of a "prescribed authority" and so an "agency" within the meaning of s. 4(1)(a) and (c) respectively of the FOI Act.
14. If a request relates to only one document or to a number of documents, all of which come within, in the context of this case, s. 16(1), the whole request may be transferred. If the request relates to more than one document but only some of which come within s. 16(1), the request is treated as if it comprised, in effect, a number of separate requests. Each of those separate requests is then regarded as seeking access to a single document. This is the effect of s. 16(3A) and it enables the agency to transfer a part of the request under s. 16(1) to another agency where, as in this case, the subject matter is more closely connected with the functions of that other agency. It does so on the basis that those documents are deemed to be part of a separate request. In relation to the remainder of the documents sought in the request, it treats them as a request for them alone. It must then make a decision in relation to the documents under the provisions of the FOI Act other than s. 16.
15. Did the Ombudsman transfer the request? This is a relevant question for me to answer for it determines the scope of any subsequent review. If a part of the request was transferred to the AFP, it is no longer a request that must be decided by the Ombudsman. This is the effect of s. 16(5), to which I refer below. If it has not been transferred, it is part of that request and is reviewable in the context of an application made by Ms Bienstein for review of the Ombudsman's decision.
16. Ms Bienstein points out that Ms Ryan sought Ms Lucas's opinion regarding release of the documents but that there was never a discussion between them on that subject. Instead, there was simply a transfer of the request. At the time that the relevant part of the request was transferred, it was 10 April, 2003 and extremely close to the date on which the request had to be decided i.e. 12 April, 2003 and, as that was a Saturday, effectively 11 April, 2003. Ms Bienstein submitted that there was no evidence that the Ombudsman had ever "... considered what remedial action could or should be taken by either of the agencies in order to protect my interests" (facsimile to Tribunal dated 20 August, 2003). She also stated:
"11. The decision to fully release the ACT Watchtower (sic) [Watch House] Guidelines should have been a no-brainer and it obviously didn't require consultation, as there is no conceivable public interest reason for refusing to disclose any part of it. The Respondent sought to transfer this document to the AFP because it was thought that it originated in that agency. But that is not relevant. Nor is it relevant that the AFP is the agency that is supposed to make use of the document to implement it. These are not permissible grounds for transferring under s 16."
17. Unlike the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"), the Tribunal does not have a power to undertake judicial review of the actions of the Ombudsman. I do not presume to have that power but, for the purposes of identifying what the Ombudsman has actually decided in order to determine the Tribunal's jurisdiction, I observe that it appears that the Ombudsman was entitled to rely on s. 16(1)(b) to transfer the request. It is apparent from all of the correspondence, including the Schedule of Correspondence, in the T documents that he held the documents in his possession. Even though not specifically stated, it is equally apparent that he regarded the subject-matter of the documents originating in the AFP as more closely connected with the functions of the AFP rather than with his own.
18. The Ombudsman could transfer a request pursuant to s. 16(1)(b) if he has the AFP's agreement. Although I agree with Ms Bienstein that Ms Ryan did not seek Ms Lucas's agreement to the transfer in her initial correspondence, it is clear that Mr Bluck understood Ms Lucas to have given her agreement in their conversation of 10 April, 2003. The Ombudsman's agreement to that course of action is clear from the reference to the transfer in Ms Fleming's decision dated 11 April, 2003. Taken in its context, the later letter from Mr Bluck to Ms Lucas dated 30 April, 2003 must be taken as confirmation of their earlier agreement. There is no requirement in s. 16 or elsewhere in the FOI Act that a transfer must be undertaken in any formal manner. In light of that, I find that the transfer occurred on or about 10 April, 2003 when Ms Lucas agreed to accept the transfer on behalf of the AFP.
19. Ms Bienstein is concerned that her interests were not protected but it seems to me that they are protected by the FOI Act. That part of her request that was transferred to the AFP is taken to be a request made to the AFP. It is taken to have been received by AFP at the time at which it was first received by the Ombudsman i.e. 12 March, 2003. This is the effect of s. 16(5). For all practical purposes, the AFP only had a day in which to make a decision on her request. When she did not receive a decision within the time limits allowed by the FOI Act, s. 56(1) provided that, for the purposes of the review provisions of s. 55, her request was deemed to have been refused. She was then entitled to apply to the Tribunal for review of that deemed decision.
Does the Tribunal have jurisdiction to review a decision to transfer a request under s. 16(1)(b) of the FOI Act?
20. The submissions made on behalf of both parties addressed the issue whether a decision under s. 16 is an operative or an interim, or procedural, decision. Both referred to the High Court's judgement in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, (1990) 94 ALR 11 (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ) and of the Full Court of the Federal Court in Director-General of Social Services v Chaney [1980] FCA 87; (1980) 3 ALD 161 (Northrop, Deane and Fisher JJ).
21. In the Bond case, the High Court considered the meaning of the word "decision" as it is used in the ADJR Act. Under the ADJR Act, judicial review may be sought of a "decisions" (s. 5), "conducted related to the making of decisions" (s. 6) and "failures to make decisions" (s. 7). Mason CJ, with whom Brennan J and Deane J agreed, considered the competing policy considerations to be taken into account in determining the compass of the word "decision":
"The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s3(2)(g), the instances of decision mentioned in s3(2) are all substantive in character. Moreover, the provisions in sub-ss(1),(2),(3) and (5) of s3 point to a substantive determination. In this context the reference in s3(2)(g) to `doing or refusing to do any other act or thing' (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s16(1)(b) or in para (e) of Sch 1 or para (1) of Sch 2 to the ADJR Act any contrary implication. These exclusions from the ADJR Act or from s13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.
_If `decision' were to embrace procedural determinations, then there would be little scope for review of `conduct', a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the `conduct' of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of `conduct' than with the notion of a `_decision under an enactment'." (pages 337-338)
22. Some years earlier, the meaning of the word "decision" as it is used in the AAT Act had been considered in Director-General of Social Service v Chaney.. The Director-General of Social Services ("the Director-General") had appealed against a ruling by the then President of the Tribunal that the Tribunal had jurisdiction to hear an application by Mrs Chaney to review his decision suspending payment to her of a widow's pension and of his decision to stay the operation of the Director-General's decision pending the resolution of her application. The Full Court of the Federal Court had to decide whether it had jurisdiction under s. 44 of the AAT Act to entertain that appeal on the basis that it was an "... appeal ... on a question of law, from any decision of the Tribunal in that proceeding" (AAT Act, s. 44(1)). The word "decision" is defined in s. 3(1) of the AAT Act in terms similar to those in s. 3(1) of the ADJR Act. Deane J, with whom Fisher J agreed, concluded:
" The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with s 43 of the Act. The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent `decisions' may properly be given." (page 181)
23. In this case, I am concerned neither with s. 44 of the AAT Act nor with the ADJR Act but the principles in Bond and Chaney are relevant. Adopting them, I am satisfied that the Ombudsman's decision made under s. 16 of the FOI Act is a final, operative and determinative decision in so far as the Ombudsman is concerned. It is a decision that, for him, effectively ends the matter. Once he has transferred a request, or part of it, he no longer has any responsibility for that request. It is not simply a procedural decision. Viewed from the vantage point of the AFP, it is a procedural decision. It is a decision taken along the way and precedes its consideration of the request and its final determination of that request. Similarly for Ms Bienstein, it is a decision that is procedural and not determinative.
24. Whether regarded as a substantive decision or a procedural decision from one vantage point or another is not relevant in determining whether or not the Tribunal may review the Ombudsman's decision to transfer part of Ms Bienstein's request under s. 16. Having identified the decision of which review is sought, what is relevant is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decision. That takes me to s. 55 of the FOI Act. When read with ss. 55(2) and (3), 55(1) states that, provided a decision has been reviewed internally under s. 54 or internal review has been sought but an applicant has not been advised of a decision within 30 days:
"... an application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision refusing to grant access to a document in accordance with a request; or
(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
(ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
(b) a decision to defer the provision of access to a document; or
(c) a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or
(d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or
(e) a decision under section 30A relating to remission of an application fee; or
(f) a decision to grant access to a document only to a qualified person under subsection 41(3); or
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
Section 56 provides that an application may be made to the Tribunal where a request has been made to an agency or Minister but the time within which it must be decided under the FOI Act has passed without a decision's having been made (s. 56(1)). An application may also be made if a decision has not been made in relation to an application to amend or annotate personal records under s. 48 (s. 56(1A)). There are certain qualifications to the right to make an application but they are not relevant in this case.
25. As can be seen from the provisions of ss. 55 and 56, they set out with specificity the decisions that may be reviewed by the Tribunal. They do not give a general right to have any decision, however described, reviewed by the Tribunal. It follows that, if the Tribunal is to have the power to review a decision made by an agency in relation to a request, it must be a decision of the sort specified in one of those two sections. A decision under s. 16 is not such a decision. It follows that the Tribunal does not have power to review that decision.
26. Reference was also made during the submissions to the powers of the Tribunal in reviewing the decision. They are found in various sections including ss. 55, 56 and 58. Section 58(1) is particularly broadly drafted when it provides:
"Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister."
The breadth of the Tribunal's powers on review cannot, however, be read as expanding the Tribunal's jurisdiction in any way. Its powers may only be exercised once it has jurisdiction and its jurisdiction must be found in ss. 55 and 56 of the FOI Act.
27. For the reasons that I have given, I decide that:
1. on or about 10 April, 2003, the respondent transferred to the Australian Federal Police that part of the applicant's request dated 10 March, 2003 relating to documents No. 17, 41, 46, 49 and 213 identified in the Schedule of Correspondence attached to Ms Helen Fleming's decision dated 11 April, 2003.
2. the Tribunal does not have jurisdiction to review the Ombudsman's decision to transfer that part of the applicant's request relating to documents No. 17, 41, 46, 49 and 213 identified in the Schedule of Correspondence attached to Ms Helen Fleming's decision dated 11 April, 2003.
I certify that the twenty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ................................................................
Australian Broadcasting Tribunal
Bond
(1990) 170 CLR 321
(1990) 94 ALR 11