LEE -v- DEPARTMENT OF JUSTICE [2021] WASC 119 (22 April 2021)

1. Mr Lee is a director of a company known as Kingsfield Holdings Pty Ltd (Kingsfield) which was convicted under the Food Act 2008 (WA) and fined $2,500 plus costs on 20 April 2015 (the fine). It was also ordered to pay $7,500 in costs. Kingsfield paid the fine and costs in full on 4 June 2015.[5]
2. At a hearing on 2 October 2015, Kingsfield's appeal under the Food Act was allowed by consent and the appeal hearing was vacated.[6]
3. Mr Lee has made a freedom of information (FOI) application under the Act for access to documents. In response to the request he obtained screenshots of pages from the Fines Enforcement Registry (FER) electronic database.[7] The FER is part of the Integrated Court Management System (ICMS).
4. One of these screenshots contains the 'case details' concerning the fine and displays a number of fields, including 'Status' and 'Last Action' (the screenshot). The 'Status' field was populated with 'Paid in full', while the 'Last Action' field was populated with 'Re-start enforcement process - 02 Oct 2015 07:32 PM' (the entry).[8]
5. The entry was incorrect. There was no reason to restart the enforcement process since Mr Lee's appeal was successful.
6. The explanation for the creation of the entry provided by the Department was that 'Courts and Tribunal Services have been consulted and advised that the entry in Integrated Court Management System (ICMS) is generated automatically by the system.'[9]
7. There is no evidence that the enforcement process was in fact ever re‑started. Accordingly, there was no consequence, certainly no adverse consequence, for Mr Lee arising from the entry.

1. Mr Lee applied to the Department on 6 June 2019. In that application, Mr Lee requested access to:[10]

documents concerning and relating to the agency and staff or contractor responsible for the 'Last Action' referred to in the [screenshot] from the integrated court management system (ICMS) for the computer file of Kingsfield Holdings Pty Ltd. (the access application)

1. The Department provided its decision on 15 July 2019. The Department refused access by providing notice under s 26 of the Act that all reasonable steps had been taken to find documents within the scope of the access application and the Department was satisfied that such documents did not exist. This decision was reached based on consultation with the Courts and Tribunal Services from the Department who advised that the entry in ICMS is generated automatically by the system and that no documents were held meeting the scope of the request.[11]
2. On 22 July 2019, Mr Lee requested that the Department undertake an internal review of its decision to refuse access.[12]
3. By letter dated 30 July 2019, the Department affirmed its original decision, reiterating that the entry was automatically generated by ICMS and that the relevant area of the agency had confirmed that no documents were held meeting the scope of the request.[13]
4. On 29 August 2019, Mr Lee applied to the Commissioner for external review of the Department's decision to refuse access.[14]
5. On 19 September 2019, the Complaints Manager at the Office of the Commissioner emailed Mr Lee further information from the Department supporting its position that the entry was automatically generated by the system. As succinctly summarised by the Department in its submissions to the Court, this information provided that:[15]

[T]he relevant entries were from a legacy system called the 'FER Database', which had operated prior to November 2015, but had since been migrated from the legacy system to the ICMS. Further, in order to obtain the information the ICMS would have to be interrogated to produce a record (as opposed to extracting a pre-existing record).

1. The email of 19 September 2019 also stated:[16]

On 2 October 2015 at 1.12pm the hearing was vacated by consent (the appeal was concluded.

Supreme Court staff updated ICMS to reflect this.

In an overnight automated process, ICMS sent a message to the FER Database at 7.32 on 2 October 2015.

This is where the FER Database 'last action' of 're-start Enforcement was added'.

The 'currrent status' was still 'Paid in Full'.

1. Mr Lee responded by email dated 13 November 2019. He stated:[17]

It appears to me that the Agency which oversees these different departments should be able to from its records establish that the Supreme Court had access to the ICMS which caused the change to the FER database. When exactly did the Supreme Court update the ICMS?

...

There should also be an existing record of the message sent by the ICMS which updated the FER. I would seek a copy of this record.

1. On 16 December 2019, the Commissioner sent Mr Lee a letter setting out her preliminary view of his complaint. The Commissioner's preliminary view was that the decision to refuse him access to further documents on the basis that further documents could not be found, or do not exist, was justified (Preliminary View).[18]
2. The Commissioner relevantly stated:[19]

In summary, the relevant field on ICMS was updated by Supreme Court Staff on 2 October 2015. As a result of that update, at 7.32 pm on 2 October 2015, the ICMS sent an automated update to the FER database and the 'Last Action' field was automatically populated with 're-start enforcement'. However, because the fine had already been paid in full the 'current status' [of the fine on the FER database] remained as 'Paid in Full'. Whilst I acknowledge that there appears to be an inconsistency between these two field entries on the FER database, the purpose of [the Act] is to provide access to documents (where appropriate), there is no requirement to ask questions or to create a record to satisfy for information.

I understand you to submit that there must be a document or record that was created outside of the ICMS [and FER] database(s) which was ultimately responsible for the population of the 'Last Action' field in the FER database.

You submit that there should be an existing record of the message sent by the ICMS which updated the FER and it is this record which you seek to access. You claim that the FER is not automatically populated by the ICMS. However, other than that assertion, you have not provided information to substantiate this claim.

1. Accordingly, the Commissioner was not convinced that there were reasonable grounds to believe that further documents within the scope of Mr Lee's access application existed.[20]
2. The Commissioner invited Mr Lee to make further submissions if he did not accept her Preliminary View.

1. Mr Lee provided further submissions to the Commissioner by email dated 13 January 2020.[21]
2. Mr Lee attached an application that he had previously made with respect to a company known as Abellio Pty Ltd, which was prosecuted and fined under the Food Act. Mr Lee asserted that '[t]here must be documents as in the Abellio matter which explain the entry'.[22]
3. On 5 April 2020, Mr Lee sent a further email to the Commissioner. In this email, he broadly submitted that there must be metadata in respect of the entry but that the Department had not conducted reasonable searches for such metadata.[23]
4. Mr Lee further submitted that the entry had come from the Department of Health.[24] Why Mr Lee believes the Department of Health would have anything to do with the Department's systems is unexplained. He also fails to explain how or why the Department of Health would have access to ICMS.
5. As the Department noted in its submissions, Mr Lee's email of 5 April 2020 was the first time he:[25]

had specifically raised the contention that he was seeking 'metadata' or that some form of metadata should be provided to confirm that the Department of Health was not the source of the entry from the FER database.

1. After receiving Mr Lee's submissions, the Commissioner provided her final decision to him by letter dated 16 April 2020. The Commissioner decided to stop dealing with the complaint pursuant to s 67(1)(b) of the Act on the basis that it was lacking in substance (Final Decision).[26]
2. The Commissioner relevantly stated:[27]

I have carefully considered your submissions of 5 April 2020. In my view the submissions regarding metadata are unclear insofar as it is unclear what metadata you say exists. In any event, I note that your access application was very explicit in terms of what documents you sought. Your access application did not include any reference to 'metadata'. In addition, neither the request for internal review nor your communications with the agency and my office referred to 'metadata', except for a very recent reference in your email of 5 April 2020 to the kinds of documents that are metadata.

Further, an applicant cannot unilaterally extend the terms of an FOI access application at the stage of external review: see Re Leighton and Shire of Kalamunda [2008] WAICmr 52 AT [72]. To do so would undermine the effective operation of [the Act].

In the circumstances set out above, I do not consider that the agency could or should have interpreted metadata as being the kind of document falling within the scope of your access application. Therefore, it is not reasonable to expect that the agency should have conducted searches for metadata.

In relation to the second part of your email where you reference Department of Health, and in relation to the attachments you have included with your most recent email, it is unclear to me how these relate to this matter. This matter is concerned with the agency and not the Department of Health. You were very specific in your access application and your references to the Department of Health appear to relate to a different matter. The attachments are not relevant to the question of metadata that you now seek to raise and neither to they appear to be relevant in general to this matter.

Having reviewed all of the information before me, I remain of the view expressed in my preliminary view letter that the decision of the agency is justified. Therefore, for the reasons stated in the preliminary view letter, dated 16 December 2019, and in this letter, pursuant to section 67(1)(b) of [the Act], I have decided to stop dealing with this complaint on the basis that the complaint is now lacking in substance.

1. The statutory framework of the Act has been considered in several previous decisions of this Court.[28] Her Honour Archer J recently summarised the Act's significant features in Lee v Department of Health.[29] Her Honour relevantly stated:

The long title of the Act provides that, among other things, it is an Act to provide for public access to documents. The objects of the Act are to enable the public to participate more effectively in governing the State, and make the persons and bodies that are responsible for State and local government more accountable to the public.[30] One of the means by which those objects are to be achieved is by creating a general right of access to State and local government documents.[31]

Section 10(1) of the Act gives a person a right to access the documents of an agency subject to and in accordance with the Act. An agency is a minister, a public body or office.[32] The Department is an agency.

By s 10(2) of the Act, a person's right to access is not affected by the person's reasons for wanting access.

As s 10 foreshadows, there are provisions in the Act which condition the general right of access. Relevantly to this appeal, s 26 is one of those provisions.[33]

Under s 26 of the Act, an agency may advise an applicant that it is not possible to give access to a document if all reasonable steps have been taken to find the document, and the agency is satisfied it cannot be found or does not exist.

Under s 65(1)(d) of the Act, a complaint may be made against an agency's decision to refuse access to a document. An advice under s 26 is deemed to be a decision to refuse access to the document. It may therefore be the subject of a complaint to the Commissioner under s 65(1)(d) of the Act.

Section 70 sets out the procedure for dealing with a complaint. It relevantly provides:

Complaint, procedure for dealing with

(1) In order to deal with a complaint the Commissioner may obtain information from such persons and sources, and make such investigations and inquiries, as the Commissioner thinks fit.

(2) Proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Commissioner permit, and the Commissioner is not bound by rules of evidence.

(3) The Commissioner has to ensure that the parties to a complaint are given a reasonable opportunity to make submissions to the Commissioner.

(4) The Commissioner may determine the procedure for investigating and dealing with complaints and give any necessary directions as to the conduct of the proceedings.

(5) For example, the Commissioner may -

(a) deal with the complaint without holding formal proceedings or hearings;

Section 76 relevantly sets out what the Commissioner must do if the Commissioner decides to confirm an agency's decision. Section 76 relevantly provides that such a decision must be in writing and the Commissioner must 'include in the decision the reasons for the decision and the findings on material questions of fact underlying those reasons, referring to the material on which those findings were based'.

1. Under s 85(1) of the Act, an appeal lies to the Supreme Court on any question of law arising out of any decision of the Commissioner on a complaint relating to an access application.
2. Appeals under s 85 of the Act are in the nature of judicial review.[34] However, questions of law are not confined to jurisdictional errors and extend to non‑jurisdictional questions of law.[35]
3. Section 87 of the Act lists the appeal court's powers. It provides:

(1) On the determination of an appeal under section 85(1), (2)(a) or (4) the Supreme Court may by order -

(a) confirm the Commissioner's decision; or

(b) vary the Commissioner's decision; or

(c) set aside the Commissioner's decision and -

(i) make a decision in substitution for that decision; or

(ii) remit the matter to the Commissioner for reconsideration with any direction or recommendation the Supreme Court thinks fit.

(2) On the determination of an appeal under section 85(2)(b) the Supreme Court may order that an exemption certificate no longer apply to a document.

(3) If it is established that a document is an exempt document the Supreme Court does not have power to make a decision to the effect that access is to be given to the document.

1. The powers of the appellate court must be:[36]

exercised with restraint to avoid an appeal on a question of law opening the door to an appeal by way of rehearing. The reasons of an administrative decision‑maker are not to be construed minutely and with an eye 'keenly attuned to the perception of error'.

1. Before turning to the specific matters, I note that Mr Lee mischaracterises the Commissioner's decision. The Commissioner recognised that 'document' includes metadata. Mr Lee's assertion that the Commissioner failed to recognise that 'document' includes metadata is simply wrong. That alone is sufficient to lead to the dismissal of this appeal.

1. There are three main issues for determination:
   1. Does metadata fall within the definition of 'document' in the glossary of the Act?
   2. Has the appellant identified a question of law?
   3. If the appellant has identified a question of law, did the Commissioner make an error of law by failing to recognise that the term 'document' as defined in the glossary of the Act includes metadata?

Is metadata a 'document' for the purposes of the Act?

1. To determine whether any potential error of law exists, it is necessary to establish whether metadata is a document as defined in the glossary of the Act.
2. Mr Lee submits that metadata falls squarely within the scope of the definition of 'document' under the glossary of the Act because it satisfies the definition of as a 'record' at cl 1(f), which is 'any article on which information has been stored or recorded, either mechanically, magnetically or electronically.'[37] This paragraph is a catch‑all provision to cover any records which would fall outside the scope of the preceding paragraphs.
3. The Department accepts that metadata can constitute a 'document' to which access must be given under the Act.[38]
4. The Macquarie Dictionary defines 'metadata' as 'Information about data, especially in relation to its structure or organisation.'
5. The term also received judicial consideration in Jarra Creek Central Packing Shed v Amcor Ltd[39] where Tamberlin J stated:

The expression 'meta-data,' which is the subject of a substantial part of the claim for discovery in relation to electronic records, is a reference to electronic information created by and embedded in electronic documents in the form of electronic data. The term describes data contained within an electronic file relating to the identification, origin or history of the file itself. It is, in effect, electronic information about other electronic data. Meta-data can be used to ascertain the author and origin of a document, the existence of any attachments, and whether the document was sent or received by any particular individual. The information which is contained in the meta-data is not visible on a print‑out of the relevant document, which shows only the face content and does not disclose the layers of electronic data beneath the visually readable information.

1. The definitions of 'document' and 'record' provided in the glossary of the Act are sufficiently broad to encompass information recorded electronically.
2. Therefore, I am satisfied that metadata is a document capable of forming the subject of a FOI application. In any event, this issue is not contested by either party.

1. To appeal the Commissioner's decision to stop dealing with Mr Lee's complaint, he must first establish that there is a question of law arising out of the decision.[40]
2. As noted earlier, Mr Lee appeals the decision on the ground that the Commissioner made an error of law by failing to recognise that the term 'document' as defined in the glossary of the Act includes metadata.
3. Mr Lee submits that, in requesting 'documents concerning or relating to the [party] responsible for the "Last Action"', the scope of his access application always included metadata.[41] He further submits that in referring to 'metadata' in the course of external review, he 'was simply using a term to refer to something that had always been covered by the words of his access application.'[42]
4. Mr Lee claims that the Commissioner failed to consider the full scope of the term 'document', and that had she done so, she would have recognised that the initial access application included metadata.[43] This failure on the part of the Commissioner, he submits, constitutes an error of law.[44]
5. To determine whether such an error exists, the relevant inquiry is whether, having regard to the Commissioner's reasons, she found that metadata did not fall within the scope of the definition of 'document' (a question of law), or whether she found that metadata did not fall within the scope of Mr Lee's access application (a question of fact). If it is the latter, the appeal would fail. If it is the former, the inquiry would then turn to whether the Commissioner's finding constitutes an error of law.
6. The Commissioner found that she did 'not consider that the agency could or should have interpreted metadata as being the kind of document falling within the scope of the access application'.[45]
7. Notably, the Commissioner did not make reference to the definition of document under the Act but rather confined her analysis to the appellant's 'access application'. Indeed, the Commissioner made no explicit finding that metadata did not fall within the definition of document. The fact that the Commissioner did not go so far as to address this important definitional issue is significant.
8. The Department submits that the Commissioner's characterisation of metadata as 'not the kind of document' falling with the scope of the access application indicates that the Commissioner was clearly of the view that metadata could constitute a 'document'.[46] I accept that, having regard to the whole of the Commissioner's reasons, such an inference can be drawn.
9. The Commissioner's omission of any findings relating to the definition of document and her reference to metadata as 'not the kind of document' leads me to conclude that the Commissioner did not fail to recognise that the term 'document' in the Act includes metadata.
10. Instead, the Commissioner was of the view that the terms of the Mr Lee's access application did not encompass a request for metadata. Mr Lee challenges the Commissioner's finding as to the scope of the access application on the basis that the application:[47]

did not use the term 'document' at large, but rather limited it, in context, to records concerning or relating to a particular entry in a database. That in itself points to documents giving information about that entry.

1. This submission relates to the Commissioner's understanding and interpretation of the terms of the access application. It does not relate to the Commissioner's interpretation of the Act. As such, what Mr Lee seeks to challenge is a finding of fact, not law. It is thus not matter which involves a question of law and able to be the subject of an appeal to this Court.
2. Merely finding facts wrongly or upon a doubtful basis does not give rise to an error of law.[48] Similarly, a misconstruction or misapprehension about what a document says may be no more than an error of fact of the same nature as a misunderstanding of oral testimony. That such a misapprehension may 'affect, even decisively, the exercise of an administrative discretion does not convert an error of fact into an error of law'.[49]
3. It is not the role of this Court to conclude whether the Commissioner erred as a matter of fact in finding that the scope of the access application did not include metadata.
4. The Department submits that questions of law can be raised by the following allegations in relation to a finding of fact:[50]

(a) that the finding was not open on the evidence (in the sense that there was no evidence to support the finding);[51]

(b) that the finding was so unreasonable that no reasonable decision maker could have made it;[52] or

(c) that the finding was made by a process of reasoning that was illogical, irrational, or lacked a basis in findings or inferences of facts supported on logical grounds.[53]

1. Mr Lee has not identified any such allegation in relation to the Commissioner's findings. There is therefore no question of law in support of his appeal.
2. For that reason, it is not necessary to address the third issue by considering whether the Commissioner made an error of law in deciding to stop dealing with Mr Lee's complaint.
3. Mr Lee's sole ground of appeal is without substance. There is therefore no need to deal with the consequences which Mr Lee submitted arose from the Commissioner's alleged error of law.[54]
4. Mr Lee's appeal fails.

1. I make the following orders:
   1. The appeal be dismissed.
   2. The appellant pay the respondent's costs of this appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Curthoys

[1] Affidavit of Jeffrey Stewart Lee sworn 11 May 2020, annexure JL-11, 170 (First Lee Affidavit).

[2] See Affidavit of Jeffrey Stewart Lee sworn 17 June 2020, annexure JL-1 (Second Lee Affidavit).

[3] Re Leighton and Shire of Kalamunda [2008] WAICmr 52.

[4] Second Lee Affidavit, annexure JL-1, 5.

[5] Appellant's Outline of Submissions, 4 September 2020 [2] ‑ [3].

[7] See First Lee Affidavit, annexure JL-4, 20 ‑ 21.

[8] First Lee Affidavit, annexure JL-4, 20.

[9] First Lee Affidavit, annexure JL-3, 10.

[10] First Lee Affidavit, annexure JL-2, 9.

[11] See First Lee Affidavit, annexure JL-3, 10 ‑ 12.

[12] See First Lee Affidavit, annexure JL-4, 14.

[13] First Lee Affidavit, annexure JL-4, 15 ‑ 17.

[14] See First Lee Affidavit, annexure JL-5, 23.

[15] Respondent's Outline of Submissions and List of Authorities [9]. See also First Lee Affidavit, annexure JL‑6, 50 ‑ 51.

[16] First Lee Affidavit, annexure JL-6, 51.

[17] First Lee Affidavit, annexure JL-6, 56 ‑ 57.

[18] First Lee Affidavit, annexure JL-8, 65.

[19] First Lee Affidavit, annexure JL-8, 65.

[20] First Lee Affidavit, annexure JL-8, 64 ‑ 65.

[21] See First Lee Affidavit, annexure JL-9, 68.

[22] First Lee Affidavit, annexure JL-9, 68.

[23] First Lee Affidavit, annexure JL-11, 168 ‑ 169.

[24] First Lee Affidavit, annexure JL-11, 168 ‑ 169.

[26] First Lee Affidavit, annexure JL-11, 170.

[27] First Lee Affidavit, annexure JL-11, 104.

[28] See Department of State Development v Latro Lawyers [2016] WASC 108 [23] ‑ [33]; Apache Northwest Pty Ltd v Department of Mines and Petroleum [No 2] [2011] WASC 283 [18] ‑ [24].

[29] [2020] WASC 103 [32] ‑ [39].

[33] Other examples are the provisions dealing with exempt documents and s 20 of the Act.

[34] Department of State Development v Latro Lawyers [34].

[35] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [72].

[36] Department of State Development v Latro Lawyers [35].

[39] [2006] FCA 1802 [11].

[45] First Lee Affidavit, annexure JL11, 170.

[48] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 382 [55].

[49] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331, 374 [199].

[50] Respondent's Submissions [33]. See also Legal Profession Complaints Committee v Rayney [2017] WASCA 78; 51 WAR 142 [193].

[51] Paridis v Settlement Agents Supervisory Board [54]. See also Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [91]; Panegyres v Medical Board of Australia [2020] WASCA 58 [254].

[52] Paridis v Settlement Agents Supervisory Board [56].

[53] Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [212]. The court noted at [213] that a conclusion of such a nature is not to be lightly drawn and not every lapse in logic is sufficient to constitute an error of law.

[54] See [3] of this judgment.