Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors

[2008] NSWCA 140

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Freedom of information
3. › Access to documents
4. › Determination of applications
5. › Whether notification that agency does not hold document is a 'determination' under s 24
6. › Whether formation of opinion that document not held is a determination
7. › Freedom of Information Act 1989 (NSW), ss 24, 25, 28, 53
1. Administrative Law
2. › Freedom of information
3. › Jurisdiction of Administrative Decisions Tribunal
4. › Review of adequacy of agency searches
5. › Whether Tribunal jurisdiction extends to review of sufficiency of search
6. › Appropriate avenues of review where search alleged to be inadequate
7. › Freedom of Information Act 1989 (NSW), ss 24, 53
8. › Ombudsman Act 1974 (NSW)
1. Statutory Interpretation
2. › Implication of words into statute
3. › Conditions for reading words into legislation
4. › Whether words could be implied to create additional ground of review
5. › Jones v Wrotham Park Settled Estates [1980] AC 74
6. › Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404

Quick Take

Under the Freedom of Information Act 1989 (NSW), the Administrative Decisions Tribunal has no jurisdiction to review the adequacy of an agency's search for documents in response to an FOI request. A notification that an agency does not hold a document is not a 'determination' under s 24 and is not reviewable under s 53. Applicants dissatisfied with the adequacy of an agency's search must seek review through the Ombudsman under Part 5 Division 1 of the FOI Act, or by way of prerogative relief in the Supreme Court. The approach taken in Victoria (Burton) and by the Commonwealth AAT (Smedley, Anti-Fluoridation Association) does not apply to the NSW FOI Act.