McGuirk v University of New South Wales [2008] NSWADT 11 (7 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
McGuirk v University of New South Wales [2008] NSWADT 11


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Michael Gerard McGuirk
RESPONDENT
University of New South Wales



FILE NUMBERS:
053197

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
24 August 2007



DATE OF DECISION:
7 January 2008

BEFORE:
Higgins S - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED:
McGuirk v University of New South Wales [2007] NSWADT 258
McGuirk (GD) v University of New South Wales [2007] NSWADTAP 65
Cianfrano v Director-General, Attorney General’s Department [2007] NSWADT 8
Dezfouli v Department of Corrective Services [2007] NSWADT 25
Cianfrano v Director-General, Department of Commerce & Anor [2006] NSWADT 195
Curtin v Vice-Chancellor, University of New South Wales (No.2) [2006] NSWADT 56
O’Hara v North Sydney Council [2005] NSWADT 100 at [11]; Chapman v Commissioner of Police, NSW Police [2004] NSWADT 35
Patsalis v Commissioner of Police, NSW Police Service [2003] NSWADT 213
DQ v Commissioner of Police, NSW Police Service [2002] NSWADT 215
Shepherd & Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); [1994] QICmr 7; (1994) 1 QAR 464

TEXTS CITED:


APPLICATION:
access to documents - adequacy of search
access to documents - advance deposit and fees and charges
Jurisdiction

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
In person
P Singleton, barrister


ORDERS:
1. The decision of the University in regard to the category 8 and 9 documents requested by Mr McGuirk is affirmed
2. Pursuant to s.63(3)(d) of the FOI Act, the decision of the University in regard to the category 10 documents requested by Mr McGuirk is set aside and remitted for further consideration


Reasons for Decision:

Introduction

1 This is an application by Mr McGuirk seeking review of a decision of the University of New South Wales (‘the University’) in regard to a request he made, pursuant to the Freedom of Information Act 1989 (‘the FOI Act’) for access to 10 categories of documents. That FOI application for access was made by Mr McGuirk on 18 April 2005.

2 In dealing with Mr McGuirk’s FOI request, on 16 May 2005, the University determined to request, pursuant to s.21 of the FOI Act, that Mr McGuirk pay an amount of $1,357.50 by way of advance deposit to cover the University’s estimated costs in dealing with his application. Prior to receiving the University’s decision, on 17 May 2005, Mr McGuirk, made an internal review request on the basis of the University, having failed to determine his request within the prescribed 21 days, had made a deemed determination to refuse him access to the documents requested (see s.24(2) of the FOI Act).

3 On 27 May 2007, the University wrote to Mr McGuirk acknowledging receipt of his 17 May 2005 internal review request and informed Mr McGuirk that the University was of the opinion that the time within which the University was required to deal with his FOI application did not commence until 11 May 2005, when Mr McGuirk responded to an earlier request of the University for clarification of his application. Mr McGuirk was also advised that if he failed to pay the amount of advance deposit within the time requested the University anticipated making a decision under s.22 of the FOI Act to refuse to deal with his application.

4 Notwithstanding the University’s letter of the 27 May 2005, on 8 June 2005, Mr McGuirk filed an application for external review with the Tribunal. In that application he expressly stated that the decision for which he sought review was a ‘deemed refusal as of 1 June 2005’. That deemed refusal being a deemed internal review determination under s.34(6) of the FOI Act to refuse him access to the documents he had requested.

5 When the matter first came before the tribunal the University argued that the tribunal had no jurisdiction to hear and determine Mr McGuirk’s application as a right to internal review had not arisen at the time Mr McGuirk made his application on 17 May 2005. Subsequently, the University appears to have conceded this point and by consent on 2 March 2006, Judicial Member Montgomery who had been allocated the matter, remitted it for reconsideration pursuant to s.65 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). The University redetermined the application on 21 March 2006.

6 After this re-determination the matter came back before Judicial Member Montgomery on several occasions and on 6 February 2007 came before me for further directions. I have dealt with the application since that date.

7 At subsequent directions hearings the parties consented to the Tribunal determining the matter on the papers. At a directions hearing Mr McGuirk identified those categories of documents for which he remained dissatisfied with the University’s determination. These were the determination in regard to the category 8 and 9 requested documents and the decision to request an advance deposit of $660.00 for dealing with the category 10 requested documents. In regard to the category 8 and 9 requested documents the University had determined that it held no documents that came within the terms of these requested categories. The University also provided evidence in support of its amended request for an advance deposit.

Issues

8 There are essentially two issues for determination and these are:

(a) has the University adequately searched for documents it holds that fall within the terms of the eighth and ninth category of documents requested by Mr McGuirk in his FOI application? and

(b) is the decision of the University to request and advance deposit a reviewable decision by the tribunal and if it is, whether it was a decision the University had power to make?

Adequacy of search

9 Where, in dealing with an FOI application, an agency fails to adequately search for documents it holds and which come within the terms of the application, this is in effect a deemed determination refusing the FOI applicant access to those documents it does in fact hold: see s.24(2) of the FOI Act. And in determining whether there has been adequate search for documents the tribunal has followed the approach of the Information Commissioner of Queensland in Shepherd & Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); [1994] QICmr 7; (1994) 1 QAR 464 at [19]: That approach is as follows:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,

(b) whether the search effort made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

see Cianfrano v Director-General, Attorney General’s Department [2007] NSWADT 8 at [47]; Dezfouli v Department of Corrective Services [2007] NSWADT 25; Cianfrano v Director-General, Department of Commerce & Anor [2006] NSWADT 195 at [69]; Curtin v Vice-Chancellor, University of New South Wales (No.2) [2006] NSWADT 56 at [4]; O’Hara v North Sydney Council [2005] NSWADT 100 at [11]; Chapman v Commissioner of Police, NSW Police [2004] NSWADT 35 at [14]; Patsalis v Commissioner of Police, NSW Police Service [2003] NSWADT 213 at [52] and DQ v Commissioner of Police, NSW Police Service [2002] NSWADT 215 at [8].

10 There is however, a threshold issue that must be met by the FOI applicant. This threshold issue was set out by the President, His Honour Judge O’Connor in Cianfrano v Director-General, Department of Commerce (supra) at [69]. In that decision the President said that when an applicant contends that an agency has failed to perform a sufficient search, the applicant must first and foremost put some credible material or submissions before the tribunal that documents of the kind requested exist. That is, it is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency.

11 In this application the relevant documents for which Mr McGuirk sought access were as follows:

8. Copy of correspondence between Professor John Ingleson and Ms Hong Ha of late 200/early 2001 in regard to Professor Ingleson’s interpretation of the Protected Disclosures Act 1974, and of his claimed right to ‘confer’ or ‘withhold’ protected disclosure status no(sic) the complaints made by Ms Ha in regard to Professor Hall.

9. Copies of minutes of the UNSW Council and the UNSW Chancellor’s committee in relating(sic) to the action against Professor John Niland, Professor John Ingleson, Professor Roget Layton, Professor Greg Whittred and Mr Neil Morris under the Protected Disclosures Act 1994 commenced by Gerard Michael McGuirk in December 2003.

12 In a statement, dated 13 March 2007, Ms Deborah Gibson, the Freedom of Information Officer of the University said that in regard to the requested category 8 documents she caused 3 administrative staff to review various files relating to the ‘Hall matter’ and that they were requested to search for any relevant documents in these files that were dated between 1 July 2000 to 30 June 2001. These 3 administrative staff advised her that there were no documents in the files reviewed. Ms Gibson went on to say that she had also searched these files and found no documents that came within the terms of Mr McGuirk’s request.

13 In regard to the documents held by the University and which fell within the terms of the category 9 documents requested by Mr McGuirk, Ms Gibson said that she caused an electronic search to be conducted of the University’s Council minutes and Chancellor’s Committee minutes for the period December 2003 to July 2005 for the name ‘McGuirk’. The July date was 4 months after the conclusion of the proceedings initiated by Mr McGuirk and referred to in his category 9 documents. In her search Ms Gibson located one document that fell within the terms of Mr McGuirk’s request. That document was the University Council minutes of 21 February 2005, which was a document for which Mr McGuirk had already been granted access under another FOI application he had made.

14 Mr McGuirk has not provided any material or submissions which provide support for his contention of the existence of documents, or further documents, being held by the University that fall within his requested category 8 and 9 documents. Nor do the terms of his request give rise to such a conclusion. Accordingly, he has failed to meet the threshold test and on this basis alone his assertion of there being a failure to search for relevant documents must be rejected. On the basis of the uncontested evidence of Ms Gibson I am otherwise satisfied that there are no reasonable grounds to believe that the requested documents exist.

15 Accordingly, the decision of the University in regard to the category 8 and 9 documents requested by Mr McGuirk is affirmed.

Request for advance deposit

16 As mentioned above, the University has requested Mr McGuirk pay an advance deposit only in respect to its dealing with his requested category 10 documents. This was a variation on the earlier decision to request a sum of $1,357.50 for dealing with each of the categories of documents requested.

17 In McGuirk (GD) v University of New South Wales [2007] NSWADTAP 65 at [18] the Appeal Panel held that the tribunal has no jurisdiction to review a decision of an agency, pursuant to s.21 of the FOI Act, to request an advance deposit from an FOI applicant. Decisions of agencies in regard to requests for access to document under the FOI Act which the tribunal does have jurisdiction to review are determinations made under ss.22(3) and 24(1) of the FOI Act. Determinations under s.22(3) are of no relevance to this application, but a determination under s.24(1) includes a determination to impose of a ‘charge’ for granting access to the documents requested, or for dealing with the FOI application (see s.24(1)(b) and (c) and s.53(3)(iv) and (v) of the FOI Act).

18 The determination the subject of review in this application is not such a determination. Indeed the University has not made such a determination in regard to Mr McGuirk’s FOI request the subject of this application.

19 In University of New South Wales v McGuirk (No.2)(GD) [2005] NSWADTAP 66 at [35] and [36] the Appeal Panel held that an agency could not make a request for an advance deposit when making an internal review determination. That is, such a request must be made before a determination is made under s.24(1) of the FOI Act. If this is correct, then it must equally apply to an internal review determination where the original determination is a deemed determination under s.24(2) of the FOI Act.

20 In this application there was both a deemed original determination and a deemed internal review determination. It is the latter determination which was the decision for which Mr McGuirk sought review. However, on remittal under s.65 of the Administrative Decisions Tribunal Act 1997, the University in effect set aside that decision and made a new decision. It is that new decision which is the subject of this application and in my opinion, consistently with the reasoning of the Appeal Panel in McGuirk [2005] NSWADTAP 66, to the extent that the new decision was a decision to request the payment of an advance deposit, it was a decision the University had no power to make.

21 This leaves the new determination, in so far as it relates to the requested category 10 documents, as a determination to effectively refuse Mr McGuirk access to the documents requested, without the University having dealt with his request. The University should be given an opportunity to deal with the request. Accordingly, it is appropriate to find that the decision of the University in regard to the requested category 10 documents be set aside and remitted to the University for reconsideration. The tribunal would point out that on reconsideration and redetermination, the University continues to have the power to make a determination in accordance with s.24(1)(b) or (c) of the FOI Act. That is it may determine to impose a charge on Mr McGuirk for dealing with his request or for granting him access to the documents requested. For these reasons the tribunal recommends that Mr McGuirk provide sufficient clarification as to the documents for which he seeks access. In this regard the tribunal notes that the University had sought clarification 10 days after it received Mr McGuirk’s request and that Mr McGuirk responded some 10 days later. Further clarification may be necessary.

22 For the reasons set out above, the decision of the University in regard to the category 10 documents is not the correct and preferred decision and should be set aside and remitted for further consideration pursuant to s.63(3)(d) of the FOI Act.

Orders

The Tribunal orders:

1. The decision of the University in regard to the category 8, and 9 documents requested by Mr McGuirk is affirmed.

2. Pursuant to s.63(3)(d) of the FOI Act, the decision of the University in regard to the category 10 documents requested by Mr McGuirk is set aside and remitted for further consideration.