Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140

Kerekes v Department for Education and Child Development [2013] SADC 149

1. The applicant has applied under section 40 (2) (c) of the Freedom of Information Act 1991 (the FOI Act) for review of a decision made by the Ombudsman on 25 November 2016.

2. The respondent has applied to strike out the application on the basis that the Tribunal has no jurisdiction to hear or determine the issues raised by the application. The Tribunal has heard argument on that matter as a preliminary point.

3. The outcome of the preliminary point depends entirely on the correct interpretation of provisions contained in the FOI Act but it is necessary to first outline the context in which the matter arises.

4. By request dated 16 March 2015 the applicant sought access to all emails exchanged between various named officers of the agency in relation to the applicant.

5. By letter dated 2 April 2015 the applicant's solicitor clarified that restoration of back-up emails was not requested at that stage.

6. On 15 April 2015 the agency determined the application by granting access to some documents. On 7 August 2015, this determination was varied on internal review.

7. On 10 August 2015 the applicant sought external review by the Ombudsman. This concerned exemptions claimed by the agency in relation to a large number of documents. On external review, the applicant also raised issues in respect of the sufficiency of the agency's search for documents. The Ombudsman indicated that "This included a review of the agency's determination that no emails within the scope of the request existed in relation to (certain named persons)."

8. The applicant argued on external review that the agency should have carried out mailbox restorations when processing the FOI request.

9. During the external review process it appears that the agency agreed to release to the applicant most of the documents that had been claimed as exempt. It appears that there was no remaining issue between the parties as to the documents which had been identified as being held by the agency. However, the applicant remained dissatisfied with the agency's searches on the basis that mailboxes were not restored.

Ombudsman's Determination made on 25 November 2016

10. The Ombudsman varied the agency's determination to reflect the documents the agency had now released to the applicant. As to the remaining issues, the Ombudsman stated as follows:

This review concerns a consideration of the sufficiency of the agency's searches for documents within the scope of the FOI request. Based on the applicant's submissions, this includes a consideration of whether the agency was required to restore the email mailboxes of the individuals identified in the application, in order for the agency's searches to be considered sufficient"

11. The Ombudsman considered that he was required to follow a two-stage process. First he considered whether there were reasonable grounds to believe that additional documents within the scope of the application exist and are held by the agency. He concluded that "it is reasonable to believe permanently deleted emails which fall within the scope of the request may exist". Second, he considered whether the agency's searches to locate such documents had been reasonable in the circumstances of the case. He concluded that the searches had been reasonable.

12. Hence the Ombudsman's determination was limited to the variation referred to in paragraph 10 above.

13. The application to this Tribunal is based entirely on the applicant's claim that the agency has not conducted sufficient searches for documents. There is no issue in relation to documents which have been identified as held by the agency.

14. The respondent contends that this Tribunal has no jurisdiction to review a statement by an agency that it does not hold a document (or, that it holds no further documents). The respondent contends that the Tribunal has no jurisdiction to enquire into the sufficiency of an agency's searches for documents.

15. The respondent contends that, insofar as the Ombudsman did review the sufficiency of the search for documents, he did so under powers granted to him under the Ombudsman Act 1972. He did not do so as part of his jurisdiction to review the agency's determination. It seems clear, however, that this is not how the Ombudsman saw the matter. He stated quite clearly that he was reviewing the "determination" by the agency that no further emails within the scope of the request existed (see paragraph 7 above).

16. The following extracts from the FOI Act are relevant:

A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act.

_(1) After considering an application for access to a document, an agency must determine - _

(a) whether access to the document is to be given (either immediately or subject to deferral) or refused; and

(b) if access to the document is to be given - any charge payable in respect of the giving of access; and

(c) any charge payable for dealing with the application.

(i) the principal officer of an agency has, under section 14A, extended the period within which an application must be dealt with by the agency; and

(ii) the agency fails to determine the application within the period as so extended; or

(b) in any other case - an agency fails to determine an application within 30 days after receiving the application,

the agency is to be taken to have determined the application by refusing access to the document to which it relates for the purposes of the provisions of Division 3 and Part 5.

(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge; or

(c) if it is a document that is usually and currently available for purchase; or

(i) was not created or collated by the agency itself; and

(ii) genuinely forms part of library material held by the agency; or

(e) if it is a document that came into existence before 1 January 1987.

_(1) An agency must notify an applicant in writing - _

(a) of its determination of his or her application; or

(b) if the application relates to a document that is not held by the agency - of the fact that the agency does not hold such a document.

(a) the day on which the determination was made; and

(i) the name and designation of the officer by whom the determination was made; and

(ii) the rights of review conferred by this Act; and

(iii) the procedures to be followed for the purpose of exercising those rights; and

(c) if the determination is to the effect that access to a document is to be given (either immediately or subject to deferral) - the amount of any charge payable in respect of the giving of access; and

(d) if the determination is to the effect that the document is an exempt document and that access is to be given to a copy of the document from which exempt matter has been deleted - the fact that the document is such a copy and the provision of Schedule 1 by virtue of which the document is an exempt document; and

_(e) if the determination is to the effect that access to a document is to be given subject to deferral - _

(ii) if applicable - the likely period of deferral; and

_(f) if the determination is to the effect that access to a document is refused - _

(A) the grounds for the refusal under section 20(1); and

(B) if a ground for the refusal is that the document is an exempt document - the particular provision of Schedule 1 by virtue of which the document is an exempt document and, if under the provision disclosure of the document must, on balance, be contrary to the public interest in order for the document to be exempt, the reasons why disclosure of the document would be contrary to the public interest; and

(ii) the findings on any material questions of fact underlying the reasons for the refusal, together with a reference to the sources of information on which those findings are based; and

_(g) the amount of any charge for dealing with the application, together with - _

(i) a statement of any amount payable by the applicant; or

(ii) a statement of any amount refundable to the applicant,

in relation to the charge, having regard to the sum of any advance deposits paid in respect of the application.

(1) Subject to subsection (5), a person who is aggrieved by a determination made by an agency under Division 1 is entitled to a review of the determination.

Division 1 - Reviews by Ombudsman or Police Ombudsman

relevant review authority_, in relation to a determination, means - _

(a) if the determination was not made by a person described in paragraph (b) - the Ombudsman; or

(b) if the determination was made by a police officer or the Minister responsible for the administration of South Australia Police in that capacity - the Police Ombudsman.

(a) who is aggrieved by a determination of an agency following an internal review; or

(b) who is aggrieved by a determination that is not liable to internal review,

may apply to the relevant review authority for a review of the determination.

_(5) In conducting a review under this section, the relevant review authority - _

(a) may carry out an investigation into the subject matter of the application (and for the purposes of such an investigation may exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman Act 1972 in relation to an investigation duly initiated under that Act, including the powers of a commission as defined in the Royal Commissions Act 1917); and

_(b) may, if it appears to the relevant review authority that the agency has failed to properly sort or compile documents relevant to the review or to undertake consultations relevant to the review that should have been undertaken by the agency - _

(i) require the agency to sort or compile the documents or undertake the consultations; or

(ii) require officers of the agency to attend at a time and place specified by the relevant review authority for the purpose of sorting and compiling the documents or undertaking the consultations; and

(i) try to effect a settlement between the participants to a review at any time during the review; and

(ii) at the request of the agency, suspend proceedings under this section at any time to allow an opportunity for a settlement to be negotiated.

(11) On an application under this section, the relevant review authority may (based on the circumstances existing at the time of the review) confirm, vary or reverse the determination the subject of the review.

(a) who is aggrieved by a determination of an agency following an internal review; or

(b) who is aggrieved by a determination that is not subject to internal review; or

(c) who is aggrieved by a determination made on a review under Division 1,

may apply for a review under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the determination by SACAT.

17. The objects of the FOI Act are set out in section 3. The aim (in general terms) is to promote openness in government and accountability. The Act is to be interpreted so as to further such objectives (section 3A). I approach the interpretation of the Act on that basis. I observe that the objects of the Act might be defeated if there was no means of ensuring that agencies search with reasonable diligence for documents concerning which access has been requested.

18. However, the FOI Act does not deal expressly with the issue at hand. Parliament must be taken to have recognised that an application might well require a search for documents (see, for example, sections 14A, 17 and 18). It goes without saying that potentially some documents may not be found even if there is a suspicion that they exist. There are no provisions in the Act, however, which expressly deal with sufficiency of search.

19. The Act does refer in a very precise manner to the concept of a "determination". It is only a "determination" which can be the subject of an application for internal review or review by the Ombudsman or this Tribunal.

20. Section 19 sets out what must be determined when an application is made. The primary choice is whether access will be granted or refused to a document. The agency must also determine the amount of any charge payable.

21. Section 23 refers to the notice to be given to an applicant when an application has been determined. Sub-section (1) (a) requires notice to be given of the agency's "determination". Alternatively, sub-section (1) (b) requires that notice be given "of the fact that the agency does not hold such a document". There is a clear implication that the alternative notice under paragraph (b) is not notice of a "determination".

22. The use of the word "fact" in paragraph (b) is also instructive. If it was intended that an applicant could review a claim by the agency that it did not hold a document, one would expect that paragraph (b) might refer to a "claim" or a "decision" or even more relevantly a "determination", rather than a "fact". One can review a decision as to fact, but one cannot review a fact.

23. Initially, I thought that subsection (2) of section 23 tended to muddy what otherwise might be clear waters. This was because it seemed to assume that every notice would contain a determination even though there may be no documents held. However, section 19 (1) makes it clear that there must always be a determination as to any charge payable (even if no document is found). Hence sub-section (2) requires notice of that determination.

24. The Act also provides expressly that certain other decisions are "determinations" for the purposes of the Act. For example, section 14A (5) provides that a decision to extend the time for handling an application "is a determination for the purposes of this Act". Section 18 (8) provides that a "refusal to deal with, or to continue to deal with an application under this section is a determination for the purposes of this Act". Section 19 (2) provides for a deemed determination where an application is not dealt with on time. Conversely it would seem that a decision to transfer an application to another agency under section 16 is not a "determination".

25. Hence the legislature has been at pains to identify what decisions are "determinations" which are subject to review. The Act does not state that a claim that an agency does not hold a document is a "determination". Given the scheme of the Act, the absence of a statement to that effect is telling.

26. In some other jurisdictions it has been suggested that a claim by an agency that it does not hold a document may be tantamount to a refusal of access and therefore a reviewable decision. This argument is unattractive as one cannot refuse to give access to a document that one does not have[1] and which may not even exist. In any event section 20 of the FOI Act sets out expressly what can be the basis for a refusal.

27. For these reasons I am of the view that a claim by an agency that it does not hold a document is not a determination which is reviewable under the FOI Act. I note that this same view was expressed by Chivell J in Kerekes v Department for Education and Child Development [2013] SADC 149. His Honour relied on a decision of the NSW Court of Appeal in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140. This decision concerned the provisions of the (now repealed) (NSW) Freedom of Information Act 1989 ("the NSW Act").

28. There are some distinctions to be drawn between the provisions in the two Acts (particularly the absence of any SA equivalent of section 34 (7) of the NSW Act), but the reasoning of the Court of Appeal nonetheless strongly supports the interpretation set out above. Many of the key provisions of the legislation in NSW and SA are very similar. In particular, there appears to be no relevant difference between sections 24, 25 and 28 of the NSW Act and sections 19, 20 and 23 of the FOI Act. As I read the judgements, the NSW Court of Appeal reasoned that these sections made it clear that notice that the agency did not hold a document was not a reviewable determination. In coming to this conclusion, the Court of Appeal effectively overruled or declined to follow earlier decisions which were cited and relied on by the Ombudsman in the present case.

29. It will be observed that the jurisdiction of SACAT is to review the determination of the Ombudsman. Counsel for the applicant placed emphasis on this fact. He argued that, if the Ombudsman had jurisdiction to review the sufficiency of the search (or the statement that the agency had no additional documents), this Tribunal must have jurisdiction to review the Ombudsman's findings on these issues. It is therefore important to consider the extent of the Ombudsman's jurisdiction and powers and from whence they are derived.

30. The basic jurisdiction of the Ombudsman under section 39 of the FOI Act is to review a determination made by the agency. On the analysis above, this does not include a claim by the agency that it does not hold a document. It does not include a review of the adequacy of an agency's search for documents.

31. Section 39 (5) provides for the powers that the Ombudsman may exercise "in conducting a review under this section". As a matter of principle, those powers may only be exercised for the purposes of the review and not for extraneous purposes. Their exercise must relate to matters within the review jurisdiction. Such powers cannot be used to extend the review jurisdiction[2]. If I am correct in my conclusions as to what is and is not a reviewable determination, the powers set out in section 39(5) do not authorise a review of a claim that the agency does not hold a document, nor a review of the sufficiency of search. Neither of these matters are within the review jurisdiction.

32. It is instructive that sub-section (5) confers specific powers to require an agency to undertake consultation and to direct officers to attend as specified for that purpose. This is a power necessary for the purpose of reviewing matters within jurisdiction. If the Ombudsman had jurisdiction to review a claim that the agency did not hold a document (and in doing so to review the sufficiency of search), one would have expected that this sub-section would contain an express power to direct the agency to conduct further searches. It is highly unlikely that such a fundamental matter would have been left unstated when other matters were spelt out.

33. Furthermore, having reviewed the determination, the outcomes open to the Ombudsman under section 39(11) are to confirm, vary or reverse the determination. There is no power to order the agency to conduct a further search or to remit the matter to the agency for further consideration such as one might expect if there was a review of sufficiency of search.

34. All of these matters tend to confirm the views expressed above about the limits of the review jurisdiction.

35. In my view, the Ombudsman did not have jurisdiction in a review under the FOI Act to review the sufficiency of search. It follows that his findings on that topic are not reviewable by this Tribunal. Given that there is no ongoing dispute in relation to documents claimed as exempt, I am of the view that this Tribunal has no jurisdiction to hear the application for review. The application must be dismissed for want of jurisdiction.

36. These findings do not mean that there is no means to challenge a claim that an agency does not hold a document or to examine the sufficiency of searches conducted. The Ombudsman has broad powers under the provisions of the Ombudsman Act 1972 to investigate any "administrative act". This is a concept broadly defined. The Ombudsman would be entitled under that Act to carry out an investigation very similar to that conducted in this case. The same purpose would be served. However, the remedies available are those prescribed in the Ombudsman Act. They are not those available on a review under the FOI Act. It is preferable, in my view, if the processes under the two Acts are kept separate and distinct.

37. The order of the Tribunal will be that the application for review be dismissed for want of jurisdiction. I will give liberty to apply on consequential matters but indicate that (subject to submissions which may be made) I am not presently inclined to award costs in this matter.

[1] Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140 per Beazley JA (with whom Giles JA agreed) at [58-59].

[2] "jurisdiction of a court is not to be confused with its powers" - per Mason P in Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 132 (as cited by the Court of Appeal).