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Stanway v Information Commissioner & Anor QCATA 33
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Stanway v Information Commissioner & Anor  QCATA 33
QUEENSLAND POLICE SERVICE
ORIGINATING APPLICATION NO/S:
25 March 2019
On the papers
Justice Daubney, President
The appeal is dismissed.
ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – whether a deemed decision of refusal had been made – where a charges estimate notice was issued on the final day of the application processing period – whether pursuant to s 38 Acts Interpretation Act (Qld) the charges estimate notice could be considered as being issued prior to the application processing period expiring
Acts Interpretations Act 1954, s 38
Right to Information Act 2009, s 18, s 35, s 36, s 46, s 119
ADCO Constructions Pty Ltd v Goudappel  254 CLR 1
DHLD v Executive Director, Social Security Appeals Tribunal  AATA 377
Stanway v Queensland Police Service  QICmr 7
I Fraser, Senior Legal Officer, Queensland Police Service
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- On 24 July 2017, the applicant made an “access application”, within the meaning of that term in the Right to Information Act 2009 (“RTI Act”) to the second respondent.
- It was not in issue that the last day of the “processing period” (as defined in the RTI Act) for that access application was 29 August 2017.
- On 29 August 2017, the second respondent gave the applicant a charges estimate notice (“CEN”) pursuant to s 36 of the RTI Act and sought an extension of time of 20 business days to process the application. The giving of a CEN triggers a “revision period”, which does not count as part of the “processing period”.
- The applicant did not agree to the extension and then sought external review of what he contended had been a deemed decision to refuse access to the documents which were the subject of the access application, by virtue of the operation of s 36 of the RTI Act. The applicant’s contention, in short, was that the day on which the CEN was given (29 August 2017) ought be excluded in the calculation of the commencement of the “revision period” and that, on that basis, the processing period had expired before the revision period triggered by the CEN would have taken effect. On that argument, it followed that a deemed decision had been made when the processing period expired on 29 August 2017.
- On considering the application for external review, the first respondent rejected this argument, and found that, on a proper construction of the legislation, the date on which the CEN was given was the first day of the revision period, and because the revision period does not count as part of the processing period there had been no deemed decision. On the basis that there had been no deemed decision, the application for external review of such a decision was found to be misconceived.
- The applicant has now appealed that decision by the first respondent. By s 119 of the RTI Act, a participant in an external review by the first respondent may appeal on a question of law to this Tribunal. The applicant’s argument is that, as a matter of law, the first respondent erred in construing the legislation in such a way as to find there had been no deemed decision and consequently erred in holding the application for external review to have been misconceived.
- If, as in this case, a person makes an “access application (i.e., an application under the RTI Act for access to information), s 36(1)(b) of the RTI Act relevantly prescribes that the agency must:
- (b)before the end of the processing period for the application, give the applicant –
- (i)a schedule of relevant documents for the applicant unless the applicant waives the requirement; and
(ii) a charges estimate notice.
- If an applicant is not given written notice of the agency’s decision about the access application by the end of the processing period then, by operation of s 46 of the RTI Act, the agency is deemed to have made a decision refusing access.
- “Processing period” is relevantly defined in s 18 of the RTI Act as follows:
processing period, for an application to an agency or Minister –
1 The processing period is a period of 25 business days from the day the application is received by the agency or Minister.
2 However, the following periods do not count as part of the processing period –
- (c)if the applicant is given a charges estimate notice under section 36 – the revision period;
- The definition of “revision period” is also found in s 18:
revision period, for an application, means the period starting on the date of the first charges estimate notice given under section 36 and ending on the day the applicant confirms the application or, if the applicant narrows the application, confirms the changed application.
- Also relevant for this appeal is the operation of s 38(1) of the Acts Interpretations Act 1954 (“AIA”), which provides:
- (1)If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and –
- (a)if the period is expressed to be a specified number of clear days or at least a specified number of days – by excluding the day on which the purpose is to be fulfilled; and
- (b)in any other case – by including the day on which the purpose is to be fulfilled.
The first respondent’s decision
- The applicant’s argument before the first respondent (and indeed, before this Tribunal) was fundamentally premised on the contention that s 38 of the AIA operated in such a way that the date on which the CEN (29 August 2017) was given was excluded from the revision period triggered by the giving of the CEN.
- The first respondent, however, held that the language of s 18 of the RTI Act, read in the context of the entire RTI Act, evinced an intention to displace what would otherwise have been the effect of the operation of s 38 of the AIA. The Information Commissioner said:
In my view, Parliament’s use of the words ‘starting on the date’ in section 18 of the RTI Act evinces an intention for the revision period to be calculated from and including the day of the notice, rather than excluding the day of the notice. This means that, for the purpose of counting the days of the processing period, ‘the clock stops’ on the date of the first CEN and does not ‘re-start’ until after occurrence of one of the events prescribed in that section’s definition of ‘revision period’.
Section 38 of the AI Act applies where, as noted, an Act provides for ‘a period beginning on a given day, act or event’. This is relevant for counting a range of time-frames under the RTI Act, including for example, when determining ‘25 business days from the day the application is received by the agency’— in which case, the day of receipt does not count as part of the processing period because of the wording ‘from the day the application is received’. However, the scheme of section 18 of the RTI Act allows for the processing period, once commenced, to stop and re-start, in order to accommodate a range of circumstances that arise in processing applications. Parliament’s wording of the definition of the revision period is clear in stating the date on which the revision period starts, and therefore evinces an intention contrary to section 38 of the AI Act.
- The first respondent also noted a concern that implementation of the applicant’s construction would circumscribe the operation of s 36(1)(b) by truncating the period available to an agency to undertake the work preparatory to issuing a CEN.
- The applicant demurred from this, arguing that he still had the rest of 29 August 2017 after the time of being given the CEN to accept the charges and this gave the charging provisions utility. As to this, the first respondent said:
I do not accept this submission. The revision period initiated by a CEN is integral to the charging scheme prescribed in the RTI Act, a period during which an affected applicant can negotiate with an agency in an effort to avoid monetary imposts and which, to be properly undertaken, requires something more than a matter of hours. The charging regime set out in the RTI Act is complex, but ultimately intended to strike a balance between the efficient allocation of scarce public resources and the right of the community to obtain access to Government-held information. This balance is best achieved by allowing agencies the benefit of the full processing period in which to undertake the preliminary work necessary to assess whether charges will, in fact, be payable in relation to a given application, and an applicant the benefit of a full revision period within which to contemplate the several options open in reply to a CEN. Such an outcome is, in turn, only possible if section 18 is interpreted in accordance with its plain and natural meaning, ie, the revision period is taken to start on the date that a CEN is given to an applicant.
- The first respondent also noted the applicant’s argument that there was no difference between the word “starting” as used in s 18 of the RTI Act with respect to the revision period and the word “beginning” as used in s 38(1) of the AIA.
- The first respondent rejected this argument, and referred to an Administrative Appeals Tribunal decision in which the statutory term “starting on the day” had been held to include the day on which the relevant event occurred. While acknowledging that the Administrative Appeals Tribunal’s case was not decisive, the first respondent said:
Nevertheless, Re DHLD does consider the exact phrase ‘starting on’ as used in section 18 of the RTI Act, and on that basis, is relevant. I also think Parliament’s very choice of the word ‘starting’ in section 18 – rather than ‘beginning’ – is indicative of an intention to depart from the standard method for calculating time set down in section 38(1) of the AI Act. Had the legislature intended for the day on which a CEN was issued to be excluded in calculating when a revision period commenced, it could simply have mirrored the language of section 38(1) of the AI Act. Taken together with the reasoning in Re DHLD, and the considerations set out in paragraphs 15-18 and 20 above, the use of a similar, but plainly distinct, expression leads me to conclude that Parliament intended the words ‘starting on’ as used in section 18 of the RTI Act have a meaning different to ‘beginning on’ contained in section 38(1) of the AI Act.
- In advancing this appeal, the applicant proposed the relevant question as:
Is the day of giving a CEN reckoned to be the first day of the ‘revision period’ under section 18 of the RTI Act?
- The applicant expressly conceded that if this question is answered in the affirmative, then the appeal must be dismissed.
- The applicant argued that the question should be answered in the negative, saying this was grounded in the orthodox basis for reckoning periods by applying the AIA to the RTI Act.
- The applicant’s contentions were:
- (a)The expression “starting on” in the RTI Act conveys the same concept as “beginning on” in the AIA, and;
The revision period sought to be created by the CEN included 30 August 2017 but not 29 August 2017. While it is true that processing period does “not include” the revision period, the revision period in this case began a day too late to enlarge the processing period. The processing period expired quietly at midnight on 29 August 2017.
- (b)The second respondent had also sought an extension of time in an email of 29 August 2017. By the application of s 35 of the RTI Act, this gave the second respondent further time to consider the access application until the applicant refused the extension on 31 August 2017, but this did not operate to extend the “processing period”.
- (c)The first respondent’s finding that the expression “starting on” in s 18 of the RTI Act includes the day of the event leads to anomalous results when one applies that interpretation to the definition of “transfer period” in s 18.
- (d)There is no indication of any parliamentary intention to exclude the operation of the AIA. The words of the RTI Act have the meaning that the legislature is taken to have intended them to have. The RTI Act does not expressly exclude the AIA.
- In my respectful view, however, these arguments cannot be accepted, and the statutory interpretation applied by the first respondent was correct.
- The starting point is to understand that the crux of the access application mechanism under the RTI Act is the “processing period”. As already noted, if an applicant is not given written notice of the agency’s decision about an access application by the end of the processing period, then there is a deemed refusal by the agency. Such a deemed decision is a “reviewable decision” and a person affected by a reviewable decision is entitled to apply for external review of that deemed decision under Chapter 3, Part 9 of the RTI Act.
- The crystallisation of the deemed decision and the concomitant right to seek external review arise only on the effluxion of the “processing period”.
- Prima facie, the duration of the processing period is “a period of 25 business days from the day the application is received by the agency”. However, the pendency of the processing period may be interrupted because paragraph 2 of the definition expressly provides that certain periods “do not count as part of the processing period”, one of which is a revision period.
- In that context, then, the legislative intent in defining “revision period” must have been to specify the temporal ambit of the period which was to be carved out (i.e., not counted as part of) of the processing period. The definition of “revision period” does this by fixing quite precisely the day on which a revision period starts (the date the first CEN is given) and the day on which a revision period ends (either the day when the applicant confirms the application or the day when the applicant confirms a changed application).
- It would be contrary to the legislative intent to permit a suspension of the running of the processing period if the interpretation contended for by the applicant was accepted. On the applicant’s argument, in order to effect a suspension of the processing period, a CEN would have to be given by no later than the 24th business day of a processing period, because the suspension would only became efficacious on the 25th business day. Such an outcome not only artificially foreshortens the practical duration of the processing period, it is fundamentally inconsistent with s 36(1)(b) which requires a CEN to be given “before the end of the processing period”.
- In any event, it is not at all clear to me that s 38(1) of the AIA is applicable to the definition of “revision period”. That section applies to a statutory provision in which “a period…is provided or allowed for a purpose”. In the context I have described, it seems to me that this particular definition of “revision period” is not prescriptive of a period provided or allowed for a purpose, but rather, as I have said, is meant to identify precisely a period which is not to be counted as part of the processing period.
- Even if I am wrong about that, in the legislative circumstances I have described, I am satisfied that it appears plainly from the words used in the definition of “revision period” and the context in which that provision appears that the provision is designed to operate in a way which is inconsistent with what would otherwise pertain by an application of s 38(1) of the AIA.
- On that basis, the revision period in this case actually started on the day on which the CEN was given, i.e., 29 August 2017, which was within the pendency of the processing period.
- The applicant’s argument concerning an asserted anomaly in the application of these concepts to the definition of “transfer period” draws a false dichotomy. Again, the clear legislative purpose in defining “transfer period” is to specify a period when the processing period is not running. In other words, the definition of “transfer period” identifies days which are effectively excluded from the processing period, not days which are included in it. The asserted anomalies do not, in my opinion, arise in the manner suggested by the applicant.
- It follows that the question posed by the applicant as determinative of this appeal is answered in the affirmative: the day on which the CEN was given in this case was the first day of the “revision period” under section 18 of the RTI Act.
- For these reasons, the appeal will be dismissed.
Stanway v Queensland Police Service  QICmr 7 (22 February 2019) (omitting footnotes).
Re DHLD v Executive Director, Social Security Appeals Tribunal  AATA 377.
Applicant’s primary submissions, para .
As defined in schedule 5 of the RTI Act.
Applying the test articulated by Gageler J in ADCO Constructions Pty Ltd v Goudappel  254 CLR 1 at .
- Published Case Name:
Adam Stanway v Information Commissioner & Queensland Police Service
- Shortened Case Name:
Stanway v Information Commissioner & Anor
 QCATA 33
25 Mar 2019