Community Care Inc v Taylor, Information Commissioner & Ors [2007] QSC 148

SUPREME COURT OF QUEENSLAND CITATION: Community Care Inc v Taylor, Information Commissioner & Ors [2007] QSC 148 PARTIES: COMMUNITY CARE INC (applicant) v. CATHI TAYLOR, INFORMATION COMMISSIONER (first respondent) and F. HENRY, ASSISTANT INFORMATION COMMISSIONER (second respondent) and NIKKI A-KHAVARI, ADMINISTRATIVE REVIEW OFFICER (third respondent) FILE NO: BS1597 of 2007 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 June 2007 DELIVERED AT: Brisbane HEARING DATE: 28 March 2007 JUDGE: Helman J. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – Freedom of Information Act 1992 – character of administrative procedure generally – objection to disclosure of information in report furnished to auditor – whether the report a document for the purposes of the Act – requirement under Act to proceed expeditiously – whether directions hearing warranted – whether Commissioner should have disqualified herself – whether in reaching and communicating preliminary decision the Information Commissioner acted properly Freedom of Information Act 1992, part 5 Judicial Review Act 1991 s. 21 COUNSEL: Mr M. Plunkett for the applicant Mr T.J. Bradley for the first respondent SOLICITORS: Hall Payne Lawyers for the applicant -- 1 of 23 -- 2 [1] The applicant, a non-profit corporation that receives funding from the Queensland Government to provide care for disabled persons, seeks a statutory order of review under s. 21 of the Judicial Review Act 1991 against the first respondent, the Information Commissioner appointed by the Governor in Council under the Freedom of Information Act 1992. The second respondent is a solicitor and an Assistant Information Commissioner to whom the first respondent delegated powers under s. 90 of the Freedom of Information Act. The third respondent is an Administrative Review Officer employed by the first respondent and has no delegated powers. Mr Bradley appeared on behalf of the respondents to assist the court in the absence of any other contenders. The Honourable the Attorney-General and the Director-General of the Queensland Department of Communities were served with the papers but have not sought to intervene. [2] By a letter dated 10 May 2006 from a policy officer, Administrative Law Co-ordination/FOI, of the Department of Communities to the secretary of the applicant, the applicant was notified that the Department had received an application under the Freedom of Information Act requesting access to an audit report in relation to the applicant dated 18 November 2005, a copy of which had been sent to the applicant in December 2005. By a letter dated 26 May 2006 from the solicitors for the applicant to the Department the applicant objected to the release of the entirety of the report ‘on the basis that the audit report is a legal nullity, and as such, is not a document for the purpose of the Freedom of Information Act …’. Alternatively to its primary objection, the applicant objected to the disclosure of the information in specified paragraphs of the report on the ground that those paragraphs contained information which was confidential and had been communicated to the auditor in confidence. The letter was nineteen pages long and contained detailed argument, including references to many cases in support of the applicant’s contentions. By a letter dated 25 August 2006 from an officer of the Department to the solicitors for the applicant the applicant was notified that its objections to release of all of the report had been overruled but that only parts of it would be released, and that if the applicant was dissatisfied or aggrieved by that decision it might apply for an internal review of the decision by a more senior officer of the Department. [3] By a letter dated 22 September 2006 from the solicitors for the applicant to the Department the applicant sought a review of the Department’s decision under s. 52 (Internal review) of the Freedom of Information Act. That letter included submissions concerning procedural fairness and confidentiality. By a letter dated 13 October 2006 from the Department to the solicitors for the applicant, the applicant was notified that its decision had been reviewed under s. 52 and had been affirmed. It was noted that the submissions in the letters dated 26 May 2006 and 22 September 2006 had been considered. The applicant was also notified that if it was dissatisfied with that decision it might apply for an external review of the decision under s. 73 of the Act. [4] By a letter dated 9 November 2006 from the solicitors for the applicant to the first respondent the latter was notified that pursuant to s. 73 of the Freedom of Information Act the applicant sought an external review of the decision of the Department dated 13 October 2006 authorizing the partial release of the audit report. The grounds of the application for review, the decisions sought, and a request for a directions hearing appeared in the letter as follows: -- 2 of 23 -- 3 Grounds for Review Our client seeks a review on the basis that the Decision was: 1. wrong in law; and 2. in excess of jurisdiction, as: a. the Report was created without procedural fairness being afforded to the our client. In those circumstances the Report is a legal nullity and does not fall with the definition of a “document” for the purposes of the Act; b. further and/or alternatively the Report is exempt matter from disclosure pursuant to s 41 of the Act; c. further and/or alternatively the Report is exempt matter pursuant to s 46 of the Act. Pursuant to s 89 of the Act the decision sought is that the: 3. Decision be set aside; and 4. Report not be released. In view of the grounds for review being relied upon by our client, we seek that the matter be set down for a preliminary directions hearing to allow for directions as to the taking of evidence to be made. By a letter dated 27 November 2006 to the applicant from the office of the first respondent signed by the second respondent to the applicant receipt of the application for review dated 9 November 2006 was acknowledged and the applicant was notified that the decision would be reviewed, the Department of Communities had been contacted, copies of the relevant documents requested, and that following a preliminary assessment of the documents the applicant would be contacted to arrange the next step in the review. [5] On 12 December 2006 Mr Charles Massy, solicitor employed by the applicant’s solicitors, had a telephone conversation with an officer employed by the first respondent in which Mr Massy mentioned that there had not been a response to the request for a directions hearing. The officer replied that the file was being reviewed to determine what the next step would be and that once a decision had been made Mr Massy would be advised in writing. Mr Massy said that the applicant was seeking a directions hearing as it wished to adduce evidence in support of the application and that guidance was needed as to how that was to be done. The officer replied that the first respondent usually did not hold directions hearings as there were no hearing rooms but that that matter would be referred to in later correspondence. [6] In a letter dated 24 January 2007 to the solicitors for the applicant from the office of the first respondent signed by the second respondent, a preliminary view in relation to ground 2(a) was expressed and an invitation made to the applicant to make further submissions and provide evidence. Formal parts omitted the letter was as follows: -- 3 of 23 -- 4 I refer to your telephone discussion with Michael Buckler of our Office on 12 December 2006 and to the external review application made on behalf of Community Care Inc, dated 9 November 2006 (Application). I am writing to: • provide you with my preliminary view in relation to your client’s submissions set out at item 2(a) of the Application; and • invite your client to make further submissions, in relation to items 2(b) and (c) of the Application. Item 2(a) of the Application I have carefully considered the detailed submissions set out in your letter to the Department of Communities, dated 26 May 2006, in relation your client’s submission that the Audit Report, dated 18 November 2005 (Report) was: • created without procedural fairness; and • is a legal nullity; and • does not fall within the definition of a “document” for the purposes of the Freedom of Information Act 1992 (Qld) (FOI Act). Preliminary View On the information available to me it is my preliminary view that the Report is a document for the purposes of the FOI Act. I have formed this preliminary view as “document” is defined by section 7 of the FOI Act as follows: document includes – (a) a copy of a document; and (b) a part of, or extract from, a document; and (c) a copy of a part of, or extract from, a document. Reference is also made in this section to the definition of “document” under section 36 of the Acts Interpretation Act 1954 (Qld) which includes: (a) any paper or other material on which there is writing; and (b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and (c) any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device) -- 4 of 23 -- 5 Accordingly, it is my preliminary view that the Report falls within the definitions set out above. Please advise me in writing, by no later than 7 February 2007 whether you accept my preliminary view in relation to item 2(a) of the Application. If you do not accept my preliminary view, I invite you to lodge by no later than 7 February 2007, written submissions and/or evidence in support of your case. Any submissions should set out the material facts and circumstances and any legal arguments on which you rely to support your case. If I do not hear from you by 7 February 2007, I will proceed on the basis that you accept my preliminary view in relation to item 2(a) of the Application. Items 2(b) and (c) of the Application In relation to items 2(b) and 2(c) of the Application, I would like to invite your client to provide further submissions in relation to its submissions that the Report is exempt from disclosure under: • section 41 of the FOI Act; and/or • section 46 of the FOI Act. In particular could you please address issues including the following in your client’s submissions: 1. the application of section 41(1) to the Report; 2. if section 41(1) is applicable to the Report, whether section 41(2)(c) or section 41(3)(a), operate to prevent the Report from being exempt; 3. the application of section 46(1) to the Report; 4. if your client submits that section 41(1) and section 46(1) are both applicable, rather than section 41(1) or in the alternative section 46(1), how the Report is exempt under section 41(1) and 46(1) given section 46(2) of the FOI Act; 5. whether your client claims exemption over the full Report in relation to the applicable sections (ie 41(1) and/or s46(1)) or only over certain parts of the Report; and 6. if your client claims exemptions over only parts of the Report, please particularise the relevant parts and provide details of the exemptions(s) claimed for each part. As previously indicated, I have a copy of your letter to the Department of Communities, dated 26 May 2006, in relation to the application of section 46(1) to certain specified sections of the Report. If these submissions are still applicable, please feel free to refer me to these submissions. -- 5 of 23 -- 6 Please provide these additional submissions to me by 7 February 2007. If I do not hear from you in relation to these submissions by 7 February 2007, I will assume that your client does not wish to make any further submissions, and proceed to drafting a preliminary view in respect of the substantive exemptions claimed under Items 2(b) and (c) of your client’s application. Ms Nikki A-Khavari is the Administrative Review Officer handling your Application. Please contact Ms A-Khavari or myself on 3005 7155 if you wish to discuss any aspect of this external review further. [7] In a letter dated 5 February 2007 the solicitors for the applicant responded to the second respondent’s letter as follows: Re: Application for external review of decision made under the Freedom of Information Act 1992 (Qld) Applicant: Hall Payne Lawyers for Community Care Inc Agency: Department of Communities, Disability services Decision-maker: C Irvine Date of decision: 13 October 2006 Type of decision: Reverse FOI Thank you for your letter dated 24 January 2007 in which you express your preliminary views in respect to the above referred to application. From the outset we note that you do not express any preliminary view as to ground 1 of the application and ponder what inferences are to be drawn from this. Ground 2(a) of the application You state that you write to provide a preliminary view in relation to our client’s submissions (sic) set out in item 2(a) of the Application. So as to ensure that there is no ambiguity about our letter to you dated 9 November 2006, we point out that this is our client’s application made to the Information Commissioner under the under the Freedom of Information Act 1992 (Qld) (the Act). Paragraph 2(a) of the application by its heading states that these are “grounds for review” of the application. Plainly, they are not submissions. While we are grateful that you carefully considered the detailed submissions in our letter to the Department of Communities dated 26 May 2006. These are submissions to the Department which it -- 6 of 23 -- 7 erroneously chose to reject for the reasons set out in the Department’s letter dated 25 August 2006 and which were further erroneously rejected by the internal review by letter dated 13 October 2006. We regret that you have chosen to form a preliminary view without hearing from us as to the nature and content of these errors contained in these decisions. We respectfully ask: (a) whether you had any communication from the Department or any other person in forming this preliminary view; (b) if by document please forward to us a copy of such; (c) if oral: (i) by whom; (ii) when; (iii) the content of the communications; (iv) if any notes of the conversation were made please forward to us a copy of the notes; (d) reasons in writing for your preliminary decision pursuant to sections 3, 32 and 34 of the Judicial Review Act 1991 and s. 27B of the Acts Interpretation Act 1954. (e) a list of the material relied upon by you in the forming of the preliminary view; (f) set out the findings on material questions of fact in forming this preliminary view; (g) refer to the evidence or other material on which those findings were based for You have formed your preliminary view that the Report is a document for the purposes of the Act without hearing from us. We formally advise that our client rejects your preliminary view on the grounds that: (a) it was made in breach of the rules of procedural fairness; and (b) is wrong. In regard to your approach to ground 2(a) of the application we take umbrage at your presumptive approach that if you did not hear from -- 7 of 23 -- 8 us by 7 February 2007 you would proceed on the basis that we accept your preliminary view in relation to ground 2(a) of the application. Our client wishes to make submission to you in support of this specific ground of its application However in view of the fact that your formed a preliminary view without having given our client an opportunity to be heard we respectfully submit that you have pre-judged the application in a way that gives rise to a reasonable apprehension of bias: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 331-2, 342-4, per Smithers J and Dean J respectively; Kioa v West (1985) 159 CLR 550 at 582 per Mason J, 628 per Brennan J; 62 ALR 321; Minister for Immigration, Local Government and Ethnic Affairs v Mayur and Manju Govind (unreported, Fed C of A, FC, 31 May 1990), per Hill J; NAIS and Others v Minister For Immigration And Multicultural And Indigenous Affairs and Another [2005] HCS 77; (2005) 88 ALD 25; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCS 63 (15 December 2006) Accordingly, we respectfully ask that: (a) you disqualify yourself further from determining the application; and (b) the application be given the Information Commissioner or delegate to determine according to law. In the event that you do not disqualify yourself we ask for a reasonable opportunity to make submission to you as to why you should recant your preliminary view. You letter advising us of the formation of this view was dated 24 January. Notwithstanding the Australia Day public holiday and two weekends, you have only given us 7 working day within which to respond. Accordingly we ask for 90 clear days and that we be granted an extension of time until 18 April 2007. In this regard we remind you of Strategic Goal Number 1 Independent Review of FOI Disputes of that the Office of Information Commissioner 2006-2010 Strategic Plan is to “give fair but firm time frames for responses form all parties”. Ground 2(b) and 2(c) of the application In regard to your approach to ground 2(b) and 2(c) of the application we take umbrage at your presumptive approach that if you did not hear from us by 7 February 2007 you would will assume that our “client does not wish to make any further (sic) submissions”. -- 8 of 23 -- 9 However in view of the fact that you have expressed a preliminary view as to ground 2(a) we as repeat our request that you disqualify yourself from further determining the application in respect to ground 2(b) and 2(c). We are grateful that, unlike your approach to ground 2(a) which constituted an egregious denial of procedural fairness, you invite further (sic) submissions in relation to submissions that the Report is exempt from disclosure under s. 41 and 46 of the Act. We again point out that we have not until now been given an opportunity to make any submissions to you at all in respect to these matters. In the event that you do not disqualify yourself we ask for a reasonable opportunity to make submissions. You letter advising us of the formation of this view was dated 24 January. Notwithstanding the Australia Day public holiday and two weekends, you have only given us 7 working day within which to respond. Accordingly we ask for 90 clear days and that we be granted an extension of time until 18 April 2007. Given what appears to be regarded by you as a novel argument, the making of a decision on this point would be greatly assisted by considered argument from our client and from a proper contender which should be the Department. This is important if, in the event that you reject our client’s application, the legal issue should be taken to the Supreme Court by way of judicial review of your decision. To this end directions are necessary to have the Department joined as a party and a time table set for the exchange of submissions. We ask to be orally heard on this directions hearing. Directions We note that contrary to the requirements of the Act and s. 8(2) and 10 of the Public Sector Ethics Act 1994 you have not been responsive to our application contained in our letter dated 9 November 2006 that you exercise the power contained in s. 72(2) and s. 87 of the Act to make directions to take evidence as to the fact that information was communicated in confidence, a view rejected by the Department and the internal review without having evidence before it. We re-make our application that you hold a preliminary directions hearing to allow directions to be made as to the taking of evidence for this purpose of determining the confidential nature of the passing of the information used in the making of the report. You have an express power under the Act to do this and this is an appropriate case for it to be done. In this regard we ask to address you orally as to the form and content of the directions. -- 9 of 23 -- 10 Opportunity for Informal Resolution through Mediation Further we note that the 2005-06 Office of the Information Commissioner Annual Report which was tabled in Parliament on 3 November 2006 your office has stated:- “The FOI Act provides the Information Commissioner with considerable flexibility as to the procedures for conducting an External Review.” Again we also note that in the same report the Information Commissioner states that the “Staff of the Office endeavour to resolve the vast majority of external reviews informally through mediation between the parties involved in a dispute. In 2005-06, 77 per cent of finalised reviews were resolved in that way. If disputes cannot be resolved informally, participants are given an opportunity to provide submissions and evidence in support of their cases, and the Information Commissioner (or delegate) makes a written decision on the issues under review.” Later in the Annual Report under the heading Informal resolution of FOI disputes the Information Commissioner advises:- “the Office’s general approach is to attempt informal mediation to achieve timely resolution of disputes. The aim of informal resolution is to secure an agreement of all parties to an informal resolution of the External Review within a short time frame. Strategies used include telephone conferences, face to face conferences, providing information (such as the Information Sheets and Practitioner Guidelines from the Office website) and facilitating greater understanding amongst the parties about how the FOI Act operates. Informal resolution generally involves significantly reduced demands on the applicant and the agency and results in timely, mutually agreed outcomes of reviews. During 2005-06 the Office resolved 77 per cent of reviews informally. In addition, in those reviews where a decision was necessary to finalise it, a substantial amount of the issues in those reviews had been resolved informally.” In passing at the date of the letter the guidelines were not accessible from Office Website. We kindly ask that you forward a copy of these guidelines to us. In this regard we remind you of Strategic Goal Number 2 of that the Office of Information Commissioner 2006-2010 Strategic Plan is to “adopt problem solving mediation and negotiation strategies as the preferred approach at the outset”. -- 10 of 23 -- 11 Accordingly, our client asks that before you proceed further in this matter our client be given the opportunity to attempt an informal mediation to achieve timely resolution of dispute. In the event that you chose not to: (a) disqualify yourself from further involvement in the application and refer the application to the Information Commissioner or delegate; (b) refuse to answer the questions as set out above; (c) grant an extension of time so as to be given a reasonable opportunity to make submissions as requested; (d) fail to hold a directions hearing as request in the application and remade here; (e) fail to hold an informal mediation, we ask that you: 1. so advise our client by giving reasons in writing, and if necessary a request is made for reasons in writing pursuant to sections 3, 32 and 34 of the Judicial Review Act 1991 and s. 27B of the Acts Interpretation Act 1954; and 2. stay any release of the document for 28 days, within which time our client may make application to Supreme Court for injunctive and declaratory relief in respect to your decision(s). [8] In a letter dated 9 February 2007 from the office of the first respondent signed by the second respondent to the solicitors for the applicant, the following response was made to the letter of 5 February 2007: ‘Re: Application for external review of decision made under the Freedom of Information Act 1992 (Qld) Applicant: Community Care Incorporated Agency/Minister: Department of Communities, Disability Services, Decision-Maker: C Irvine Date of decision: 13 October 2006 Type of decision: Reverse FOI_____________________ I refer to your letter dated 5 February 2007 in relation to the external review application lodged by Community Care Incorporated (Community Care) dated 9 November 2006. -- 11 of 23 -- 12 The writer of your letter seeks: • informal mediation of the matter; • 90 days to provide submissions in response to my letter dated 24 January 2007; • that the Department be joined as a party; and • that a directions hearing and a timetable for submissions be set down. The writer also makes various allegations including the following: • your client’s application has been pre-judged because a preliminary view has been formed in relation to one aspect of your client’s application giving rise to a reasonable apprehension of bias; and • your client has been denied the right of making submissions. I will deal with each of the above issues in turn. Informal resolution As you would be aware, this Office adopts problem solving mediation and negotiation strategies as the preferred approach to resolving issues relevant to an external review. Forming a preliminary view is not making a decision. A preliminary view in no way prejudges the merits of an application. Rather, it forms part of the informal resolution process as set out in our Information for External Review Applicants brochure (available on www.oic.qld.gov.au) which provides that: “Conducting a review may involve one or more of the following steps: • Assessment – establishing whether the Information Commissioner has jurisdiction to conduct the requested review; • Information gathering – obtaining the documents and any relevant background information; • Informal resolution – negotiating a resolution, which may involve expressing a ‘preliminary view’ about the issues; • Decision – making a written determination on the issues in the review …” (my emphasis) As set out in my letter dated 24 January 2007, I am presently attempting to informally resolve the issues relevant to this external review by: • expressing a preliminary view in relation to item 2a and seeking submissions from your client if it does not accept my preliminary view; and -- 12 of 23 -- 13 • seeking submissions from your client in relation to items 2b and 2c to enable me to form a preliminary view in respect of these points, which will then be communicated to the appropriate party and further submissions sought if that preliminary view is not accepted. Extension of time to provide submissions You request a lengthy extension of time to provide submissions in response to my letter dated 24 January 2007. I refer you to page 27 of this Office’s 2005-06 Annual Report and note that it is a performance target of this Office to resolve an external review application within a median on 90 days. I also note that it is this Office’s standard procedure to give parties two weeks to provide submissions. A request for 90 days for your client to make submissions is not reasonable in the circumstances. On the information available to me, I am willing to provide your client with an extension until 26 February 2007 to provide submissions in relation to: • my preliminary view regarding item 2(a); and • items 2(b) and (c) of this review. If I do not hear from you by 26 February 2007, I will proceed on the basis that your client: • accepts my preliminary view in relation to item 2(a) of the Application; and • does not wish to make submissions in relation to items 2(b) and (c) and proceed to draft a preliminary view in respect of the substantive exemptions claimed under items 2(b) and (c). Parties to the review You request that the Department of Communities be joined as a party to this review. There is no need for the Department of Communities to be joined as a party as it is already the respondent in this external review. Directions hearing and timetable I refer you to sections 72 and 83 of the Freedom of Information Act 1992 (Qld) (FOI Act) and note that: • the procedure to be followed in the course of an external review is within the complete discretion of the Information Commissioner; and • as the giving of directions by the Information Commissioner is discretionary, they are not required to be provided at a “directions hearing”. I also note that a hearing has not been -- 13 of 23 -- 14 held by an Information Commissioner since the inception of the FOI Act. The revised timetable for submissions in this review is set out on page two of this letter. Bias The writer of your letter alleges bias on the basis that a preliminary view has been formed in relation to one aspect of your client’s application. As set out above, the forming of a preliminary view is part of the informal resolution process. It does not amount to a decision and submissions are sought if the preliminary view is not accepted. On this basis, your allegation of bias in unfounded. Submissions You also claim that you client has been denied the right of making submissions. This is incorrect. I invited your client to make submissions in respect of items 2a, 2b and 2c in my letter of 24 January 2007. Other Issues In response to your comment regarding item one of your client’s application, I confirm that after dealing with the issue of jurisdiction (encompassed by item 2a), I will then consider whether any exemptions set out in the FOI Act apply to prevent disclosure of the relevant information (encompassed by items 2b and 2c). Further, as no decision has been made in this external review, it is unnecessary to: • respond to your request for written reasons; and/or • stay release of the matter in issue. In response to your request for Practitioner Guidelines, I advise that these documents have recently been replaced by FOI Concepts which are available on this Office’s website: www.oic.qld.gov.au In particular I refer you to FOI Concepts dealing with: • exempt matter; • deliberative process (section 41); and • breach of confidence (section 46). If you wish to discuss any aspect of this letter further, please contact Nikki A-Khavari or myself on 3005 7155. -- 14 of 23 -- 15 [9] There followed further, acrimonious correspondence. In a long letter dated 16 February 2007 reference was made by the solicitors for the applicant inter alia to the second respondent’s responsibilities under the Public Service Act 1996 and the Public Sector Ethics Act 1994, and in a letter dated 21 February 2007 from the second respondent to the solicitors for the applicant, the applicant was inter alia advised that if it failed to comply with the directions set out in the letter of 9 February 2007 and continued to frustrate the external review process the second respondent placed the applicant on notice that the first respondent intended to consider ‘the options available to her’ including recourse to s. 77 of the Freedom of Information Act and/or the provisions of the Legal Profession Act 2004 ‘including sections dealing with unsatisfactory professional conduct’. (Section 77 of the Freedom of Information Act provides that the Information Commissioner may decide not to review: see para. 17 infra.) [10] The application is brought, as I have mentioned, under s. 21 of the Judicial Review Act, which provides for reviews of conduct related to the making of a decision. Section 21(1) provides that if a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which the Act applies (whether by the person engaged in the conduct or by another person), a person who is aggrieved by the conduct may apply to the court for a statutory order of review in relation to the conduct. It was not in dispute before me that the decision sought on the external review would be a decision to which the Act applied. Section 21(2) provides that an application may be made under that section on any one or more of the following grounds: (a) that a breach of the rules of natural justice has happened, is happening, or is likely to happen, in relation to the conduct; (b) that procedures that are required by law to be observed in relation to the conduct have not been, are not being, or are likely not to be, observed; (c) that the person proposing to make the decision does not have jurisdiction to make the proposed decision; (d) that the enactment under which the decision is proposed to be made does not authorise the making of the proposed decision; (e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment under which the decision is proposed to be made; (f) that an error of law – (i) has been, is being, or is likely to be, committed in the course of the conduct; or (ii) is likely to be committed in the making of the proposed decision; -- 15 of 23 -- 16 (g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct; (h) that there is no evidence or other material to justify the making of the proposed decision; (i) that the making of the proposed decision would be otherwise contrary to law. In the application the grounds relied on were those in paragraphs (a) to (f), (h), and (i). At the hearing it became clear that only grounds (a) and (e) were relied on. [11] In paragraph 4 of the application the orders sought were set out. Some of the orders originally contended for are no longer sought. Those that are still in issue are these: 4. The applicant claims:- … (c) an order declaring that the preliminary view of the second respondent that the audit report of the Department of Communities dated 26 May 2006 [sic] is a document for the purposes of the Freedom of Information Act 1992:- (i) was made in breach of the rules of procedural fairness; and (ii) is null and void and of no effect; (d) an order declaring the applicant is entitled:- (i) to make submissions and to be heard in support of its application before the formation of a preliminary view the audit report of the Department of Communities dated 26 May 2006 [sic] is a document for the purposes of the Freedom of Information Act 1992; (ii) to be advised of any communications between the respondents and the Department of Communities or any other person which is adverse to the applicant’s application for an external review; (iii) to be advised of the “information available” to the respondents in the formation of the preliminary view; (iv) to be advised if a party other than the Department of Communities is proposed to be heard in the application for external review; (v) to be advised of the full proposed procedure in the application to be followed by the respondents in:- -- 16 of 23 -- 17 • the informal resolution of the application for external review; and • in the event of a failure to resolve the application informally then, the formal resolution of the application for external review; (vi) to be given a reasonable opportunity to make submissions to the respondents within a reasonable time before it proceeds to attempt to informally resolve or formally resolves the application for external review; (vii) to a time table that is reasonable in all the circumstances of the case and not constrained solely by a performance target to resolve an external review application within a median of 90 days as set out in the Office of Information Commissioner’s Annual Report for 2005-2006; (viii) to be heard on the holding of a directions hearing setting out steps for the exchange of submissions and the provision of evidence; (ix) not to be denied a directions hearing on the basis that a direction hearing has not been held by an Information Commissioner since the inception of the Freedom of Information Act 1992; (x) to be advised of the reasons why the respondents will not hold a preliminary directions hearing; (e) that the applicant has not frustrated the external review process; (f) that the respondents were not entitled to proceed on the basis that:- (i) in the absence of making submissions on the preliminary view by 26 February 2007 that the applicant will be taken to have agreed with the preliminary view of the respondents; (ii) that in the absence of submissions provided by the applicant by 26 February 2007 the applicant does not wish to make submissions; (g) the respondents were not entitled to refuse to hold a directions hearing because a hearing has not been held by an Information Commissioner since the inception of the Freedom of Information Act 1992; (h) the respondents were not entitled to refuse to the applicants an extension of time within which to make submissions by reason of a performance target to resolve an external review application within a median -- 17 of 23 -- 18 of 90 days as set out in the Office of Information Commissioner’s Annual Report for 2005-2006; (i) the respondents are not entitled to threaten the applicant’s legal representatives with making a complaint under the Legal Profession Act 2004, including sections dealing with unsatisfactory professional conduct; At the hearing of the application, Mr Plunkett, for the applicant, informed me that 4(e), (f), (g), (h), and (i) should be read as 4(d)(xi), (xii), (xiii), (xiv), and (xv) respectively. [12] An external review is subject to Part 5 (ss. 72-101, External review of decisions) of the Freedom of Information Act. Part 5 has two divisions: Division 1 (ss. 72-89A, Conduct of review) and Division 2 (ss. 90-101, Miscellaneous). Of particular relevance on this application are ss. 72, 74, 77, 78, and 83. [13] Section 72 provides for the procedure on review: 72 Procedure on review (1) On a review under this part – (a) the procedure to be followed is, subject to this Act, within the discretion of the commissioner; and (b) 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 permits; and (c) the commissioner is not bound by the rules of evidence and may inform himself or herself on any matter in any way the commissioner considers appropriate. (2) The commissioner may, during a review, give directions as to the procedure to be followed on the review. [14] Section 74 provides that before starting a review of a decision, the Information Commissioner must inform the agency or Minister concerned that the decision is to be reviewed. [15] Section 77 provides that the Information Commissioner may decide not to review a decision. So far as it is relevant that section provides: 77 Commissioner may decide not to review -- 18 of 23 -- 19 (1) The commissioner may decide not to deal with, or not to further deal with, all or part of an application for review if – (a) the commissioner is satisfied the application, or the part of the application, is frivolous, vexatious, misconceived or lacking substance; or (b) the applicant for review fails to comply with a direction given by the commissioner; or (c) the commissioner considers the applicant for review has failed to cooperate in progressing the application, or the part of the application, without reasonable excuse; [16] Section 78(1) provides that the applicant and the agency or Minister concerned are participants in a review. [17] Section 83 provides for the conduct of reviews: 83 Conduct of reviews (1) Subject to subsection (2), if, during a review, the commissioner proposes to – (a) allow a participant to make oral submissions; or (b) take evidence on oath or affirmation; that part of the review is to be conducted in public unless the commissioner otherwise determines. (2) The commissioner may, for the purposes of a review, obtain information from such persons, and make such inquiries, as the commissioner considers appropriate. (3) In conducting a review, the commissioner must – (a) adopt procedures that are fair, having regard to the obligations of the commissioner under this Act; and (b) ensure that each participant has an opportunity to present the participant’s views to the commissioner; but, subject to paragraph (a), it is not necessary for a participant to be given an opportunity to appear before the commissioner. -- 19 of 23 -- 20 (4) If the commissioner gives a participant an opportunity to appear before the commissioner, the participant may, with the approval of the commissioner, be represented by another person. (5) If – (a) the commissioner has decided not to notify a person of the review; and (b) it later becomes apparent to the commissioner that documents in which the person has an interest are likely to be released; The commissioner must take reasonable steps to notify the person of the likely release if the release may reasonably be expected to be of substantial concern to the person. [18] The applicant’s grounds shown in the originating application are complex but its complaints may be summarized as follows: 1. The second respondent reached a preliminary view on one ground of appeal before submissions had been made by the applicant; 2. The second respondent failed to give reasons for her preliminary view; 3. The second respondent failed to provide to the applicant copies of any communications with the Department of Communities; 4. The second respondent refused to disqualify herself; 5. The second respondent failed to convene a directions hearing; 6. The second respondent failed to make provision for mediation of the application; 7. The second respondent failed to set a reasonable timetable; and 8. The second respondent referred unfairly to s. 77 of the Freedom of Information Act and/or the provisions of the Legal Profession Act. [19] Before I discuss the details of the issues before me I shall set out the essential steps required in an external review to ensure that an application is conducted with procedural fairness, the principles of which are too well known to require rehearsal here. First, the applicant must be given an opportunity to present the applicant’s ‘views’ to the Information Commissioner: see s. 83(3)(b). The most satisfactory -- 20 of 23 -- 21 way of presenting those ‘views’ is to provide written submissions accompanied by any relevant statements of evidence in writing. Those submissions and accompanying statements will not come to the Commissioner in a vacuum because the Commissioner will have before him or her details of what passed between the applicant and the relevant agency or Minister. The second essential step will be for the Commissioner to provide a copy of any submission and any statement received from the applicant to the agency or Minister for comment or submission or provision of further statements. If no comment, or submission or statements are provided to the Commissioner by the agency or Minister, the Commissioner may then be in a position to conclude the review if there is no other participant in the review. If any comments, submissions or statements are received from the agency or Minister the Commissioner should then provide copies of them to the applicant for comment or submissions in reply, and then, after any further comments are received from the applicant, the Commissioner may be in a position to make his or her decision on the review. Any other participants must, of course, also have been accorded opportunities to present their views. All participants will then have been given the opportunity to present their views and to respond to those of other participants. The details of the way in which reviews are conducted will vary depending on the circumstances of individual cases, but, in the end, whatever variations there are in the procedure from case to case, whether they be informal or formal or a mixture, the review must be conducted in such a way as to ensure that all participants are heard. All participants must know what is said against them, and be given the opportunity to respond to what is said against them. [20] I should say before proceeding that I see nothing in the evidence before me that would lead to the conclusion that it was contemplated by the second respondent that the applicant, or for that matter any other participant in the review, was to be denied the opportunity to present views to her and to respond to anything said against that participant by another participant. The progress of the external review was stalled at the outset by the applicant’s objection to the second respondent’s expressing a preliminary view, insisting that it was entitled to a directions hearing, objecting to the timetable initially set by the second respondent, requesting an opportunity to attempt informal mediation, and by various other complaints including that concerning an apprehension of bias in the second respondent. [21] It is clear that the second respondent was attempting at the outset to clarify or refine the issues on the external review, and to that end reached a preliminary view on one of the applicant’s grounds based on the extensive argument already prepared by the applicant and set out in its solicitors’ letter of 26 May 2006. Such a course was consistent with the requirement of s. 72(1)(b) that an external review be conducted as expeditiously as the requirements of the Act and a proper consideration of the matters before the Commissioner permits. It is a step often taken - and properly so - by judges in an effort to clarify issues and to test possible conclusions. At the beginning of the review process there was, in my view, no need to provide extensive reasons since the object of the expression of a preliminary view was to do no more than I have explained. It should be noted, however, that the second respondent did refer to provisions of the Freedom of Information Act and the Acts Interpretation Act 1954 on the question whether the audit report was a ‘document’ within the meaning of the word as it is used in the Freedom of Information Act. In the second respondent’s letter of 27 November 2006 she notified the applicant that copies of relevant documents had been requested of the Department of Communities, and in her letter of -- 21 of 23 -- 22 24 January 2007 indicated that she had carefully considered the applicant’s solicitors’ letter of 26 May 2006 to the Department, which was no doubt among the relevant documents supplied to her. There is no reason to think her communications with the Department went further, as should have been obvious from the correspondence. The second respondent’s reaching a preliminary view did not signify a mind closed to persuasion to a contrary view and provides no proper basis for an apprehension of bias. In any event, at the hearing I was told by Mr Bradley that the future conduct of the external review will be by an Assistant Information Commissioner other than the second respondent and who has not previously been involved in the review. Those conclusions are sufficient to dispose of complaints nos. 1, 2, 3, and 4. [22] Section 72(1)(a) provides that the procedure to be followed on an external review is, subject to the Act, within the discretion of the Information Commissioner. Generally one would not expect a review of this kind to require elaborate directions or a formal directions hearing. The essential steps must be as I have described, and they can be followed easily without a directions hearing. The first step is to have the ‘views’ upon which the applicant relies. It is quite consistent with the Commissioner’s powers and duties under the Act that a date be set by which that step must be taken. That is what the second respondent did in this case, initially setting 7 February 2007, and later, after considering the applicant’s views, 28 February 2007. I see no irregularity or injustice in that, particularly since the applicant had already presented an elaborate case on the internal reviews. There can be no objection to setting performance goals, which of course may not be achieved in all cases: it is a common practice in courts to set such goals to ensure the orderly progression and timely disposal of cases. Once an applicant’s submissions, comments, and statements of evidence, if any, have been presented, a response obtained from those resisting the application, and any reply received from the applicant, the question of further directions may arise (including directions as to receiving oral evidence). The question of mediation can, of course, arise early in the review process, but it is reasonable to conclude that mediation would not have been of any utility before the applicant’s submissions had been presented to the second respondent. In many cases such questions may not arise, but they may do, and can be dealt with once the issues are sufficiently defined. It must be borne in mind that what is contemplated in the legislation is a procedure with lack of formality and technicality conducted with reasonable expedition, not an elaborate and costly legal proceeding. Those conclusions dispose of complaints nos. 5, 6, and 7. [23] That leaves complaint no. 8. I am not persuaded that there is any substance in that complaint, consideration of which would constitute a digression into what can only be regarded as an irrelevant side-issue. There is no reason in principle why the first respondent may not consider the application of s. 77 of the Freedom of Information Act or of the Legal Profession Act in an appropriate case in which it appears that the progress of an external review has been subject to unreasonable obstruction or frustration. As the issues in this dispute have unfolded it is not necessary to adjudicate upon the strength or otherwise of any resort to the provisions mentioned in the letter of 21 February 2007. By the time that letter was written the external review had come to a standstill because of the positions taken on issues nos. 1 to 7, which are the real issues for determination on this application. Furthermore, I should record that at the hearing Mr Bradley informed -- 22 of 23 -- 23 me that the first respondent has not made a complaint under the Legal Profession Act and does not propose doing so. [24] I therefore conclude that the applicant has failed to show that a breach of the rules of natural justice has happened, is happening, or is likely to happen in relation to the external review, or that the determination of the external review would be an improper exercise of the power conferred on the first respondent. The application will be dismissed. -- 23 of 23 --