Re Shane Peter Ward and Secretary To the Department of Industry and Commerce [1983] AATA 351 (21 October 1983)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: SHANE PETER WARD
And: SECRETARY TO THE DEPARTMENT OF INDUSTRY AND COMMERCE
No. V83/261
Freedom of Information

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Mr I. R. Thompson (Senior Member)

CATCHWORDS

Freedom of Information - jurisdiction of tribunal - notice of decision - request for access - whether information in notice concerning rights with respect to review appropriate - failure to give appropriate information - effect on validity of notice of decision - deemed decision refusing access - internal review not required.

F.O.I. - application to Minister for access to documents - procedure where document not official document of Minister

Freedom of Information Act 1982 ss.3(1), 4(1), 15(1), 16, 19(1), 23(1), 26(1), 54, 55, 56(1)

HEARING

CANBERRA
21:10:1983

ORDER

1. The Administrative Appeals Tribunal has jurisdiction in respect of the applicant's application in relation to a refusal to grant him access to documents which he requested in letters addressed to the Minister for Industry and Commerce on 18 May 1983 and 2 June 1983 respectively. However, the application is to be taken to be an application for review of a decision deemed by virtue of section 56(1) of the Freedom of Information Act 1982 to have been made by the Secretary to the Department of Industry and Commerce refusing to grant access to the documents to which access was sought.

2. It is directed that the hearing is to proceed on 15 November 1983.

DECISION

1. The decision is concerned only with whether the Administrative Appeals Tribunal has jurisdiction to review the decision in respect of which the application for review has been made.

2. On 18 May 1982 the applicant wrote to the Minister for Industry and Commerce ("the Minister") asking for photocopies of the file 'held' on the applicant in the Internal Affairs Unit of the Department of Industry and Commerce ("the Department"). On 31 May 1983 an administrative officer in the Department replied to the applicant that his letter had been received and brought to the Minister's attention. On 2 June 1983 the applicant wrote a further letter to the Minister asking for photocopies of the complete file on him compiled by the former Federal Narcotics Bureau and the Department's Internal Affairs Unit. In that letter and in the letter of 18 May he made clear that his request was under the provisions of the Freedom of Information Act 1982 ("the Act").

3. On 24 June 1983 a First Assistant Secretary of the Department, Mr D. M. O'Connor wrote to the applicant informing him that the Minister had asked him to reply to the applicant on his behalf. In the letter Mr O'Connor wrote that the documents which the applicant was seeking had been identified as those contained on a certain file and that the file was held by the Internal Affairs Unit of the Department. Mr O'Connor stated in the letter that copies of a number of documents had been made available to the applicant, that copies of others had been made available to him with deletions and that copies of others would not be supplied to him because they were exempt from disclosure. He concluded the letter by informing the applicant that, if he wished to seek a review of the decision to refuse him access to certain documents or the decision to grant him access to other documents with deletions, his attention was drawn to his review rights under certain headings in a document headed 'Review Options under the Freedom of Information Act 1982', which was enclosed with the letter. Those headings related to review by the Administrative Appeals Tribunal, by the Ombudsman and by the Federal Court of Australia. The document contained details of the circumstances in which internal review by the Department is available but the applicant's attention was not drawn to them.

4. On 28 June 1983 the applicant applied to the Administrative Appeals Tribunal for review of the decision to 'refuse him documents'. It is not clear whether the application was intended to apply also to the decision to provide photocopies of some documents with deletions.

5. In the statement lodged with the Tribunal under the provisions of section 37(1)(a) of the Administrative Appeals Tribunal Act 1975 the Acting First Assistant Secretary in the Management Division of the Department stated that 'the Minister did not have any files in his office concerning the applicant so the (applicant's) request was referred to the Department for processing for a response on the Minister's behalf'. The documents were in the possession of the Internal Affairs Unit of the Department.

6. Mr O'Connor's letter did not make clear by whom the decisions stated in it were made. In the section 37 statement also it is stated only that Mr O'Connor 'replied to the applicant on behalf of the Minister'. At the hearing, however, Mr M. Lysewycz, the officer of the Department representing it at the hearing informed the tribunal that the decisions had been made by Mr O'Connor and that they had not been either made by the Minister personally or referred to him for his approval before they were made by Mr O'Connor.

7. At the hearing Mr Lysewycz initially stated that the Department regarded the decision as having been made by the Minister in relation to a request to the Department and that in consequence an internal review was not required by section 54(1) of the Act. It is clear that Mr O'Connor took the same view when he wrote his letter of 24 June 1983 and that it was for that reason that he drew the applicant's attention to the parts of the Review Options document which related to review by the Administrative Appeals Tribunal, the Ombudsman and Federal Court and did not draw his attention to the part relating to the provisions for internal departmental review. It appears that the applicant believed that the decisions had been taken by the Minister and that he was not required to apply for internal departmental review before being entitled to apply to the Administrative Appeals Tribunal for review. In the course of the hearing, however, Mr Lysewycz accepted a suggestion by the Tribunal that, on the facts as he had stated them, Mr O'Connor's decisions could not be regarded as decisions made by the Minister and that an application should have been made by the applicant for internal review. The applicant said that he had made his request to the Minister and that it was, therefore, not a request to an agency and in consequence internal review was not required.

8. The provisions of the Act which are relevant to the issue which has to be decided in these proceedings are contained in section 15(1), section 16, section 19(1), section 23(1), section 26(1), section 54, section 55 and section 56(1) and the definitions of 'agency', 'Department', 'document of an agency', 'official document of a Minister', 'principle officer' and 'responsible Minister' in section 4(1). Those provisions are as follows:-

''agency' means a Department or a prescribed authority;

'Department' means a department of the Australian Public Service other than the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff and the Joint House Department;

'document of an agency' or 'document of the agency' means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency;

'official document of a Minister' or 'official document of the Minister' means a document in the possession of a Minister, or in the possession of the Minister concerned, as the case requires, that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access to the document and the document is not a document of an agency;

'principal officer' means _

(a)in relation to a Department _ the person holding, or performing the duties of, the office of Permanent Head of the Department; and

(b)in relation to a prescribed authority _

(i) if the regulations declare an office to be the principal office in respect of the authority _ the person holding, or performing the duties of, that office; or

(ii)in any other case _ the person who constitutes that authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he is present;

'responsible Minister' means _

(a)in relation to a Department _ the Minister administering the relevant Department of State;

(b)in relation to a prescribed authority referred to in paragraph (a) of the definition of 'prescribed authority' _ the Minister administering the enactment by which, or in accordance with the provisions of which, the prescribed authority is established;

(c)in relation to a prescribed authority referred to in paragraph (c) of that definition _ the Minister administering the enactment by which the office is established; or

(d)in relation to any other prescribed authority _ the Minister declared by the regulations to be the responsible Minister in respect of that authority,

or another Minister acting for and on behalf of that Minister;'

'15. (1)A person who wishes to obtain access to a document of an agency or an official document of a Minister may make a request in writing to the agency or Minister for access to the document.

16. (1)Where a request is made to an agency for access to a document and _

(a)the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency; or

(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.

(2) Where a request is made to an agency for access to a document that _

(a) originated with, or has been received from, a body which, or person who, is not an agency but would be an agency but for section 7, or regulations made under that section; and

(b) is more closely connected with the functions of that body or person than with those of the agency to which the request is made,

the request shall be transferred to the Department corresponding to the Department of State administered by the Minister who administers the enactment by or under which the body or person is established, continued in existence or appointed.

(3) Where a request is made to an agency for access to a document that _

(a) originated in, or has been received from, another agency; and

(b) is more closely connected with functions of the other agency in respect of which the other agency is exempt from the operation of this Act than with the functions of the agency to which the request is made,

the agency to which the request is made shall transfer the request to the other agency.

(4) Where a request is transferred to an agency in accordance with this section, the agency making the transfer shall inform the person making the request accordingly and, if it is necessary to do so in order to enable the other agency to deal with the request, send the document to the other agency.

(5) Where a request is transferred to an agency in accordance with this section, it shall be deemed to be a request made to that agency and received at the time at which it was originally received.

(6) In this section, 'agency' includes a Minister.

19.(1) If a request for access to a document that is made to an agency or Minister _

(a) is made in writing and is expressed to be made in pursuance of this Act;

(b) specifies an address in Australia at which notices under this Act may be sent to the person making the request; and

(c) is sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at an address of the agency or of the Minister, as the case may be, that is under the regulations, an address to which requests made in pursuance of this Act may be sent or delivered in accordance with this section,

the agency or Minister shall take all reasonable steps to enable the applicant to be notified of a decision on the request as soon as practicable but in any case not later than 60 days after the day on which the request is received by or on behalf of the agency or Minister.

23.(1) Subject to sub-section (2), a decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, subject to the regulations, by an officer of the agency acting within the scope of authority exercisable by him in accordance with arrangements approved by the responsible Minister or the principal officer of the agency.

26.(1) Where, in relation to a request, a decision is made under this Part refusing to grant access to a document in accordance with the request or deferring provision of access to a document, the agency or Minister concerned shall cause the applicant to be given notice in writing of the decision, and the notice shall _

(a) state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision;

(b) where the decision relates to a document of an agency, state the name and designation of the person giving the decision; and

(c) give to the applicant appropriate information concerning his rights with respect to review of the decision and the procedure for the exercise of those rights, including (where applicable) particulars of the manner in which an application for a review under section 54 may be made.

54.(1) Where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being _

(a) a decision in relation to the provision of access to a document that is the subject of the request; or

(b) a decision that the applicant is liable to pay a charge in respect of the request for access to a document or in respect of the provision of access to a document to which the request relates,

the applicant may, within 28 days after the day on which that decision is notified to him or within such further period as the principal officer of the agency allows, apply to the principal officer of the agency for a review of the decision in accordance with this section.

(2) Subject to sub-section (3), where an application for a review of a decision is made to the principal officer in accordance with sub-section (1), he shall forthwith arrange for himself or a person (not being the person who made the decision) authorized by him to conduct such reviews to review the decision and make a fresh decision.

(3) Sub-section (1) does not apply in relation to _

(a) a decision made on a review under this section; or

(b) a decision in relation to the provision of access to a document upon a request that is, under sub-section 56(1) or (3), to be deemed to have been given.

(4)The provisions of section 26 extend to a decision made under this section upon a review of a decision in relation to the provision of access to a document that is the subject of a request.

55.(1) 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 deferring the provision of access to a document;

(b) a decision refusing to allow a further period for making an application under sub-section 54(1) for a review of a decision; or

(c) a decision referred to in section 29.

(2) Subject to sub-section (3), where, in relation to a decision referred to in paragraph (1)(a) or (c), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under sub-section (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.

(3) Sub-section (2) does not prevent an application to the Tribunal in respect of a decision where _

(a) the person concerned has applied under section 54 for a review of the decision;

(b) a period of 14 days has elapsed since the day on which he made that application; and

(c) he has not been informed of the result of the review,

and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by sub-section (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal.

(4) Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975, the period within which (subject to any extension granted by the Tribunal) an application under sub-section (1) of this section is to be made in respect of a decision is _

(a) except where paragraph (b) or (c) applies _ the period commencing on the day on which notice of the decision was given to the applicant in accordance with section 26 and ending on the sixtieth day after that day;

(b) where the decision is a decision that is to be deemed by sub-section 56(1) or (3) to have been made _ the period commencing on the day on which the decision is to be deemed to have been made and ending on the sixtieth day after that day; or

(c) where sub-section 57(4) is applicable _ the period commencing on the day on which the Ombudsman has informed the applicant as referred to in that sub-section and ending on the sixtieth day after that day.

56.(1) Subject to this section, where _

(a) a request has been made to an agency or Minister in accordance with section 19;

(b) the period of 60 days or such other period as is applicable by virtue of regulations under sub-section 19(2) has elapsed since the day on which the request was received by or on behalf of the agency or Minister; and

(c) notice of a decision on the request has not been received by the applicant, the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document."

9. In section 3 of the Act there is a statement of the manner in which the provisions of the Act are to be interpreted. The following provisions of that section are particularly relevant in these proceedings.

'3. (1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by _

(a) . . .

(b) . . .

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.'

10. Mr Lysewycz, as already noted, informed the Tribunal that the Department regarded the request which was made to the Minister as a request made to the department, so that in terms of section 15(1) and section 54(1) it was 'a request to an agency'. The applicant has stated that he regarded it as a request to the Minister and not to the Department. Section 15(1) provides for a request to be made for access either to a document of an agency or to an official document of a Minister; it is to be made either to the agency or to the Minister. It is significant that the reference is to the Minister simpliciter and not 'the responsible Minister'. It is also significant that the alternative to the Minister is not the principal officer of the agency but the agency itself. I see difficulty in identifying the responsible Minister with his Department so that a request made to him is to be regarded as a request made to the Department, although administratively it might be convenient to do so. However, I think it unnecessary to reach any firm conclusion on that point for the purposes of these proceedings. What is plain from the use of the reference to the Minister and not the responsible Minister is that a request for access to a document of an agency must be made to the agency, and a request for an official document of a Minister must be made to that Minister. If a request to a responsible Minister for a document of his Department is to be made it must be such for the purpose of section 54(1) of the Act. If, however, any request made to a Minister must be regarded as a request for access to an official document of the Minister and the document is in fact a document of his Department, and therefore not an official document of the Minister, section 16 of the Act is applicable. It states the manner in which a Minister should deal with a request received by him for a document which is not included among his official documents but which is in the possession of another Minister or Department, including his own Department. Unless he decides to reply to the applicant that it is not in his possession and to invite the applicant to write to the other Minister or the principal officer of the Department which has possession of it, he may, with the consent of that Minister or Department transfer the request to him or it, as the case may be. It thus is deemed to be a request made to that other Minister or that Department and to have been received at the time when it was received by the Minister who received it initially (section 16(5)). In view of the provisions of section 3 of the Act one would expect the Minister to adopt the latter course, whenever possible. If he transfers the request to his own Department, he may still insist that the decision is to be made himself; that is clear from the provisions of section 23(1), which envisage that a decision in respect of a request made to a Department may be made on behalf of the Department by the responsible Minister. On the other hand, the decision may be taken by the principal officer of the Department or by another officer of the Department authorized to do so under the provisions of section 23(1). Where a decision is made by such an authorized officer, it cannot be regarded as having been made by the responsible Minister or the principal officer for the purposes of section 54(1).

11. In the present case the application was made to the Minister. The documents to which the applicant wished to have access were in the possession of the Internal Affairs Unit of the Department. They were, therefore, not official documents of the Minister. The Minister referred the request to the Department. Unless he is to be regarded as having received the request as the Department, he was, in terms of the provisions of the Act, transferring it to the Department and at that stage it became a request to the Department. To comply strictly with the provisions of section 16(4) the Minister should then have informed the applicant that he had transferred the request to the Department; but that does not affect the validity of the transfer. Either way I am satisfied that the decisions made by Mr O'Connor were made in relation to a request to the Department and that they were not made by the responsible Minister or the principal officer of the Department. Accordingly the provisions of section 54(1) were applicable to them.

12. However, that is not the end of the matter so far as the jurisdictional issue in these proceedings is concerned. Section 54(3) provides that sub-section (1) of that section does not apply 'in relation to a decision in relation to the provision of access to a document upon a request that under section 56(1) is to be deemed to have been given', that is to say a decision deemed to have been given by the principal officer of the agency. It is deemed to have been given where a request for access has been made to a Department or a Minister in accordance with section 19 of the Act and the period within which a decision should have been made upon the request has elapsed without the applicant having received notice of any such decision. In the present case it is not in dispute that the request made to the Minister conformed with the requirements of section 19(1). It is to be taken to have been received at the latest by the date on which the Minister received the applicant's letter dated 2 June 1983. That is stamped as having been received on 6 June 1983. The period of 60 days for notification of a decision on the request has, therefore, expired.

13. Section 26(1)(c) provides that notice of a decision shall be in writing and shall give to the applicant appropriate information concerning his rights with respect to review of the decision and the procedure for the exercise of those rights, including, where applicable, particulars of the manner in which an application for review under section 54 may be made. Although Mr O'Connor sent to the applicant with his letter of 24 June 1983 the document headed 'Review Options under the Freedom of Information Act 1982' and containing details of the nature of internal departmental review, it was to the details of review by the Administrative Appeals Tribunal, the Ombudsman and the Federal Court of Australia that Mr O'Connor expressly drew the applicant's attention, not to the details of internal departmental review. Section 26(1)(c) requires that the information given in the notice of a decision with respect to the review of that decision be 'appropriate'. The applicant had not been informed that the Minister had transferred the request to the Department. Mr O'Connor's statement in the letter that 'the Minister has asked me to reply to you on his behalf' could reasonably have been understood by the applicant as meaning that the Minister had taken the decision and had asked Mr O'Connor to convey it to him. In these circumstances I am satisfied that the information given to him regarding his rights with respect to review of the decisions was not appropriate; indeed it had great potential to mislead him as to what they were. Consequently the notice of the decision did not conform with the requirements of section 26(1).

14. It remains only to decide whether, for the purposes of section 56(1), valid notice of the decisions on the applicant's request have been received by him or not. Two countervailing considerations are relevant to this matter. On the one hand, the scheme of the Act is that a decision made in relation to a request to a Department by a person other than the responsible Minister or the principal officer of the Department should be subject to internal review before there is any review by the Administrative Appeals Tribunal. It is obviously desirable that the Tribunal should not be unduly delayed in dealing with the applications under the Act by an overload of cases in which access might have been conceded as a result of such an internal review. On the other hand, in a case such as the present where a person requesting access to documents has not sought internal review because he has been misled as to the nature of the review available to him, the delay involved in requiring him at this late stage to apply for internal review may properly be regarded as unfairly prejudicial to his interests, particularly as the principal officer of the Department has a discretion whether or not to extend the period of 28 days within which the application for internal review should have been made.

15. Having regard to the provisions of section 3 of the Act, I have come to the conclusion that, because of the defective nature of the purported notice of the decision sent to the applicant in respect of his request, he should, for the purposes of section 56(1), be regarded as not having received notice of any decision on his request. Accordingly, by virtue of the provisions of section 54(3), the provisions of section 54(1) are not applicable and the Tribunal has jurisdiction to review that deemed decision. Although his application is expressed as being for review of Mr O'Connor's decision, in view of the provisions of section 3 of the Act I am satisfied that it is proper to regard it as an application for a review of the deemed decision; accordingly it will be heard as such.