//
[2007] AATA 1993
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2007-11-20
Original judgment source is linked above.
CATCHWORDS - FREEDOM OF INFORMATION - documents not found - whether a decision that Tribunal has jurisdiction to review - Tribunal has jurisdiction
Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health [1985] AATA 201; (1985) 8 ALD 163
Re Chu v Telstra Corporation Limited [2005] FCA 1730; (2005) 89 ALD 39
Re Hancock and Attorney-General's Department (AAT 2410, 13 November 1985)
Re Hancock and Department of Resources and Energy (1986) 10 ALN N65
Re Kalman and Department of Veterans' Affairs (AAT 8332, 23 October 1992)
Re La v Federated Furnishing Trade Society of Australasia [1993] FCA 62; (1993) 41 FCR 151; 113 ALR 137
Re Wilson and Australian Federal Police (1983) 5 ALD 343
Re Wiseman and Department of Transport [1985] AATA 284; (1984) 12 ALD 707
DECISION AND REASONS FOR DECISION [2007] AATA 1993
And COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Decision: The Tribunal decides that decision is reviewable by the Tribunal.
Mr Dejan Maksimovic made a request under the Freedom of Information Act 1982 (FOI Act) to the Director of Public Prosecutions (DPP) for access to any document and statement of reasons for all decisions to initiate prosecutions against him. The DPP responded that there were no documents or statements of reasons for such decisions. This case turns on the question whether the DPP can be said to have refused to grant access to a document in accordance with a request under the FOI Act. If he did, the Tribunal has jurisdiction to consider the matter further but not otherwise. I have decided that the DPP has made such a decision and that the Tribunal has jurisdiction.
2. In a letter dated 2 July 2007, Mr Maksimovic made a request to the Director of Public Prosecutions (DPP) under the FOI Act for "Any document and statement of reasons for all decisions to initiate prosecutions against ..." [him].[1] An officer authorised under s 23 to make the decision on the DPP' behalf wrote to Mr Maksimovic on 9 July 2007 advising that:
"As this matter commenced as a result of your arrest by members of the Australian Federal Police, there are no documents or statement of reasons for decisions to initiate prosecution against you."[2]
3. Following Mr Maksimovic's application for internal review of that decision, a different officer of the DPP decided on 10 August 2007 that:
"... the CDPP does not hold any documents falling within your request. I have come to this conclusion following my searching the relevant material. I note that the Melbourne Office indicated to you that your prosecution was initiated as a result of your arrest by the Australian Federal Police."[3]
On 20 August Mr Maksimovic applied to the Tribunal for review of the decision.
4. On 17 September 2007, the DPP applied for orders dismissing Mr Maksimovic's application be dismissed on two bases. The first is that it be dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act) as it did not disclose any basis on which the Tribunal could exercise jurisdiction. The second is that the "... application is untenable and manifestly groundless and accordingly frivolous pursuant to s 42B ..." of the AAT Act. The reasons for the DPP's application are encapsulated in the following two paragraphs of the submission made on his behalf:
"6. Section 55 of the Freedom of Information Act 1982 (Cth.) sets out the types of decisions for which an application to the AAT may be made for review. A decision by an agency that there are no documents which meet the terms of the request does not fall within the list of reviewable decisions in s 55.
5. At the hearing, Mr Gipp of counsel with Ms Burchill repeated this submission on behalf of the DPP. He added that a document must exist before a request for it may be refused. Whether a document exists is a question that can only be explored by the Ombudsman but not by the Tribunal. Neither the Federal Court nor the Tribunal is equipped to answer the question as neither has the power to conduct a search. The Ombudsman, on the other hand, has the power to investigate a matter and to send officers to the DPP's offices to conduct a search if necessary. In cases in which an agency states that there is no document, the proper course to take has three stages. The first is for the agency to advise the person making the request that is has no documents. The person then makes a complaint to the Ombudsman, who conducts an investigation. If the Ombudsman finds documents, the agency should consider them and make a decision claiming the relevant exemptions. If dissatisfied with the decision, the person may apply to the Tribunal for review of the decision.
6. The starting point for my consideration is the AAT Act by which the Tribunal was created. More particularly, the starting point is s 25. That section establishes the framework in which an enactment, other than the AAT Act itself, provides that an application may be made to the Tribunal for the review of a decision. Section 25(1) provides:
"An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment."
Section 25(4) provides the necessary corollary to this sub-section when it provides that the "... Tribunal has power to review any decision in respect of which application is made to it under any enactment." The general powers of the Tribunal are found in other provisions of the AAT Act.
7. The remaining ten sub-sections of s 25 go on to refine the general proposition made in s 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. Of particular interest in this case is s 25(6) which provides:
"Where an enactment provides for applications to the Tribunal:
(a) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications, and
(b) those sections and subsections have effect subject to any provisions so included."
8. It is clear from s 25 generally and from ss 25(1) and 25(2), which I have set out, that Parliament intended that the Tribunal's power of review be defined and circumscribed by the enactment providing for that review. This interpretation is consistent with the statements made by the Attorney-General in his Second Reading speech in the House of Representatives.[4]
The Tribunal's jurisdiction to review decisions regarding decisions under the FOI Act
9. The effect of s 25 is that regard must be had to the terms of the enactment to decide whether or not the Tribunal has been given jurisdiction. In this case, regard must be had to the FOI Act.
10. Sections 55 and 56 provide for the decisions in respect of which an application may be made to the Tribunal. Only one of those decisions is relevant - that in s 55(1)(a) - but I will put it in the context of four of the others provided for in s 55(1) and relevant to a request for access to a document:
"Subject to this section, 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
(f) a decision to grant access to a document only to a qualified person under s 41(3); or
11. As can be seen, s 55(1) begins by stating that what follows is "Subject to this section". That means that a person's right to make an application for review is qualified by other provisions of s 55. One of the qualifications applicable in this case is that the decision of which review is sought must be the decision that the DPP made after making an application for review under s 54.[5] It cannot be the DPP's initial decision. Mr Maksimovic properly applied for internal review under s 54 and has sought review of the decision made on that review.
12. It is apparent from these five subsections that Parliament has chosen two ways in which to describe the decisions. One way is found in ss 55(1)(b) and (f). Each of those subsections is concerned with access to a decision; one with deferral of the provision of access and the other with the way with granting access to a qualified person under s 41(3). It is implicit in the way in which the decision is described in each of ss 55(1)(b) and (f) that the agency or Minister has found and identified a specific document (or documents). The decision relates to that specific document. Also implicit in each of the subsections is that, assuming the agency or Minister could do so, the agency or Minister has decided that no exemption will be claimed in respect of the documents. All that is in issue is the timing of access or the mode of access to a particular document.
13. It is neither explicit nor implicit in ss 55(1)(b) and (f) that the decisions relating to deferral or mode of access to a document are decisions that relate to the whole of the request. The three decisions referred to in ss 55(1)(a), (aa) and (ab) are more broadly based than those in ss 55(1)(b) and (f). Each refers back to what was requested and, in effect, to whether what was given as a result of a decision was "in accordance with a request". Was the decision to refuse access to documents, a decision to grant access to some but not all documents or a decision purporting to grant, but not actually granting, access to, in all three instances, a document(s) "in accordance with a request"?
14. The words "in accordance with" are often considered in the context of whether substantial compliance is sufficient. That is not the context here. A more apt consideration of them was given by Gray J in Re La v Federated Furnishing Trade Society of Australasia[6] when he considered the requirement in then r 98 of the Industrial Relations Regulations 1989 that a certain application "must be ... in accordance with Form 11". His Honour said:
"... Counsel for Mr La referred to the definition of 'accordance' in the Shorter Oxford English Dictionary_. He contended that 'accordance' in reg 98(1)(a) means 'harmony'. In my view, the alternative meaning, 'conformity' , is more appropriate. The notion of a document being in conformity with a form is easier to grasp than the notion of a document and the form being in harmony. Alternatively, disconformity is easier to recognise than disharmony. In my view 'in accordance with' in reg 98(1)(a) means in complete agreement with._"[7]
15. It seems to me that I should adopt a similar interpretation in the context of ss 55(1)(a), (aa) and (ab). If the decision were to refuse access to documents, a decision to grant access to some but not all documents or a decision purporting to grant, but not actually granting, access to, in all three instances, a document(s) in conformity with a request, that decision would be reviewable.
16. That interpretation of the words "in accordance with" is equally applicable when they are used in s 11(1) of the FOI Act. That section gives every person "a legally enforceable right to obtain access in accordance with this Act to ..." a document of an agency or an official document of a Minister provided the document is not an exempt document. That means that the right to obtain access must be in conformity with the FOI Act and so is not absolute. It must be tempered by reference not only to the exemption provisions of Part IV of the FOI Act but also by the provisions of Part III.
17. Part III circumscribes the right in several ways. For example, it removes from the right to have access certain documents that are described in ss 12 and 13 and providing for the circumstances in which an agency or Minister may refuse to grant access in accordance with a request on what might be described broadly as workload considerations.[8] It provides for the way in which a request may be made[9] or the necessary steps that must be taken before making a request for particular documents[10] and so limits the right in that way.
18. Part III of the FOI Act also sets out the way in which an agency or Minister may deal with a request and make a decision upon it. Section 20, for example, provides for the form in which access to a document may be given to the person requesting it. Section 21 deals with the circumstances in which provision of access to a document may be deferred. In certain circumstances, s 22 permits an agency or Minister to delete exempt or irrelevant material from a document and give access to the remainder. Of particular note in this case is s 24A which provides that:
"An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency's or Minister's possession but cannot be found; or
19. It follows that a person may make a request for a document but that Parts III and IV provide for a number of circumstances in which an agency or Minister may decide that the person is not to be given access to any or all of the documents requested or that the person is not to be given access in the form requested. If that is the case, access is not given in conformity with the request. Access is not given "in accordance with" the request.
20. That brings me to s 55(1)(a), which is the focus of this case. Inherent in every request is an assumption that documents exist that match the description given in the request. A decision refusing a request on the basis that an agency or Minister does not have documents of that description cannot be in conformity with the request. That is so because it denies the assumption on which the request is based i.e. that the agency or Minister does have such documents. It follows that a "decision refusing to grant access to a document in accordance with a request" must encompass a decision refusing a request on the basis that an agency or Minister has no documents of the sort described in the request.
21. The same conclusion can be reached by a different route. Section 24A, which I have set out above, authorises an agency or Minister to "refuse a request for access to a document" if, in summary, documents cannot be found or do not exist. Although the words used in s 24A do not precisely match the words used in s 55(1)(a), a decision which is a decision to "refuse a request for access to a document" under s 24A is clearly a "decision refusing to grant access to a document in accordance with a request" within the meaning of s 55(1)(a). The decision is reviewable.
22. Mr Gipp was unable to refer me to any previous cases in which the issue has been considered previously. There are five cases that I am aware of: Re Wilson and Australian Federal Police,[11] Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health,[12] Re Wiseman and Department of Transport,[13] Re Hancock and Attorney-General's Department[14] and Re Hancock and Department of Resources and Energy.[15] I summarised each of these cases in Re Kalman and Department of Veterans' Affairs[16] and concluded:
"49. In each of these cases, other than Re Wilson and Australian Federal Police and Re Anti-Fluoridation Association of Victoria and Secretary to the Department of Transport_, there has either been a decision of the agency actually refusing access to the document or a decision to refuse deemed to have been made by virtue of section 56. In_ Re Anti-Fluoridation Association of Victoria and Secretary to the Department of Transport_, the Tribunal was able to interpret the events as meaning that there was, as in the other cases, a deemed decision to refuse or a decision to defer access. In any of those cases, there can be no doubt that there is clearly power to review the decision pursuant to section 55 provided it has been through the internal review process under section 54. It was in relation to the absence of that preliminary step under section 54 that the Tribunal in_ Re Wilson and Australian Federal Police held that it did not have jurisdiction and it did not go further and consider whether it would have had power to review a decision made after internal review that an agency's searches had failed to reveal any documents."
23. These cases preceded the inclusion of s 24A in the FOI Act in 1991.[17] That section overcame any doubt that the Tribunal might previously have entertained regarding its power in case of a refusal of a request when documents could not he found or do not exist.
24. In more recent times, Finn J considered s 24A in Chu v Telstra Corporation Limited.[18] Other than those which it had previously provided to Mr Chu, Telstra Corporation Limited (Telstra) had refused his request for access to personal and personnel files relating to him. Telstra had made its decision under s 24A. After Telstra affirmed its decision on internal review, Mr Chu lodged an appeal to the Federal Court under s 44 of the AAT Act. Finn J's judgment turned on the adequacy of the searches that had been undertaken and, in particular, whether Telstra had undertaken "all reasonable steps" (emphasis added) to find the documents. The jurisdiction of the Tribunal to review the decision made under s 24A was never questioned by the parties or by Finn J. For the reasons I have given, I would respectfully agree that there was no reason to question the Tribunal's jurisdiction in that case just as there is none in this.
I certify that the twenty-five preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .................................................................
Date of Telephone Jurisdiction Hearing 20 November 2007
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents), T3
[4] Hansard, House of Representatives, page 1187
[7] [1993] FCA 62; (1993) 41 FCR 151; 113 ALR 137 at 158; 145
[10] s 15A relating to access to personal records
[11] (1983) 5 ALD 343 (Deputy President Hall, Senior Member Balmford and Sir Ernest Coates, Member)
[12] [1985] AATA 201; (1985) 8 ALD 163 (Deputy President Thompson)
[13] [1985] AATA 284; (1984) 12 ALD 707 (Senior Member Balmford and Mr Sinclair and Mr Trinick, Members)
[14] (AAT 2410, 13 November 1985) (Deputy President Todd and Mr Grant and Mr Taylor, Members)
[15] (1986) 10 ALN N65 (Deputy President McMahon, then Senior Member, and Dr Renouf and Mr Taylor, Members)
(1993) 41 FCR 151