Request for an email sent from Sia Lagos on 20 February 2019 to Warwick Soden about the experience of a Federal Court registrar who was admitted to practise on 8 February 2019

Response to this request is delayed. By law, Federal Court of Australia should normally have responded promptly and by (details)

Dear Federal Court of Australia,

CONTEXT

I refer to an article published in The Australian on 8 February 2022. A copy of the article can be accessed here: https://www.reddit.com/r/auslaw/comments...

On 14 February 2019, Warwick Soden sent the following email to Sia Lagos of the Federal Court of Australia:

“Dear Sia

When signing proposed appointment of Registrars I usually look at their CVs, experience and qualifications for appointment.

When looking at [REDACTED] qualifications I note that he was admitted as a lawyer of the Supreme Court of NSW on 8 February 2019.

While I have no difficulty with the proposed appointment of Registrar, I do question the apparent assumption (as usually occurs) for the automatic delegation of all powers of the Court that could be delegated to a Registrar when the person was so recently admitted. Should we not think about a limited delegation for the time being as I assume you would not be suggesting that [REDACTED] preside in court in the near future?

Happy to discuss.

Warwick”

On 20 February 2019, Sia Lagos responded to Warwick Soden’s in an unclassified email. Sia Lagos’s email commences as follows:

“Dear Warwick

I have spoken with David Pringle about this issue, as he currently has key responsibility for the implementation of the ‘registrar piece’ and has worked very closely with [REDACTED] over the past 6-9 months …”

Ms Lagos’ email ends as follows:

“As to [REDACTED] skills and capabilities, David has assured me that he is a highly capable registrar and will have no difficulty dealing with the straightforward categories of registrar work. David has confirmed that [REDACTED] has excelled in judicial and registrar allocation support work, legal research, case management and mediation support work, including liaison with the profession and parties. [REDACTED] has also played a key part in supporting the policy and practice work done by the NOR, including the development of practice material. You will note from [REDACTED]’s CV that he also comes with considerable initial training in mediation, and we have no doubt that, once accredited, he will skilfully conduct less complex mediations, as needed ...”

FOI REQUEST

Under the FOI Act, I request access to the email that Sia Lagos sent, on 20 February 2019, to Warwick Soden in response to Warwick Soden’s email, sent to Sia Lagos on 14 February 2019, about the recently admitted lawyer (the one who was admitted on 8 February 2019).

COMMENTS

The “highly skilled” and “amply experienced” FOI officers of the Federal Court shouldn’t have too much trouble searching for and identifying the relevant documents given that, as Claire Hammerton Cole has insisted, the Federal Court has “a ‘high quality record system’ that is well-organised and ‘enables easy identification and location of documents’”: https://www.righttoknow.org.au/request/d.... After all, I’ve pinpointed the date on which the email was sent. I have pinpointed the person from whose mailbox the email was sent. I have pinpointed the person to whom the email was addressed. And I have identified parts of the content of the relevant email to assist you.

I am no clairvoyant but I have the feeling I am going to have a lot of fun in the final months of 2022, and over 2023, playing the Federal Court’s game of cat and mouse. You lot keep erecting contrived barriers to access (like bogus charge estimates for non-existent documents (e.g. https://www.righttoknow.org.au/request/d...) or bogus reasons for refusing access to non-existent documents on public interest grounds (https://www.righttoknow.org.au/request/r...)). I’ll just have to apply for IC review and submit make more elaborate (i.e. detailed) FOI requests for documents. Might even rope some friends in to have some fun with these fascinating documents. Of course, they may not be as merciful as I am ;)

Yours faithfully,

Stephanie

External FOI, Federal Court of Australia

OFFICIAL
Dear Stephanie

I acknowledge receipt of your request, dated 15 October 2022 and communicated by email to [email address], for access to documents under the Freedom of Information Act 1982 (Cth) (FOI Act).

Based on the Court's preliminary assessment of your FOI request, it has been determined that, at this stage, you are not liable to pay a charge. If that changes, the Court will inform you and will issue you with a notice of charge as required by the FOI Act.

Kind regards

FOI Officer
Federal Court of Australia

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External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Stephanie

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

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Dear B Henderson,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Request for an email sent from Sia Lagos on 20 February 2019 to Warwick Soden about the experience of a Federal Court registrar who was admitted to practise on 8 February 2019'.

1. Valid FOI request

Subsection 15(2) of the FOI Act sets out the minimum requirements for a request. The request must:

a) be in writing; and
b) state that the request is an application for the purposes of the FOI Act;
c) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency to identify it; and
d) give details on how notices under the FOI Act may be sent to the applicant.

No part of subsection 15(2) limits the request for access to “matters of an administrative nature.”

Paragraph 5(1)(a) of the FOI Act makes it clear that “a court … shall be deemed to be a prescribed authority.

Paragraph 5(1)(b) makes it clear that that holders of judicial office or other offices pertaining to a court shall be deemed not to be a prescribed authority.

The request, which meets the minimum requirements, was made to a court deemed to be a prescribed authority, and there is no suggestion that an FOI request was made to a non-prescribed authority. That ends the matter.

A determination of whether or not the requested documents relate to matters of an administrative nature presupposes a valid FOI request being made. A valid FOI request was made.

Therefore, your claim that “requests for access can only be made for documents relating to ‘matters of an administrative nature’” is nonsense.

2. Characterisation of request

I disagree with your characterisation of the requested documents as anything other than documents that relate to matters of an administrative nature under s 5 of the FOI Act.

In Kline v Official Secretary to the Governor General [2013] HCA 52, the plurality of the High Court noted the following:

a) Holders of federal judicial office and holders of office in specified federal tribunals, authorities and bodies are expressly exempted from the operation of the provisions of the FOI Act.
b) The FOI Act does not expose to public scrutiny the discharge of the substantive powers and functions of judicial officers or holders of quasi‑judicial office to the extent that they have not been discharged in an open court or a public forum [34].
c) The first matter of textual significance is that the Official Secretary is "a prescribed authority" subject to the operation of the FOI Act as a person holding, or performing, the duties of that office under the Governor‑General Act 1974 (Cth) [35].
d) The next matter of textual significance is that s 6A(1), and ss 5(1) and 6, reveal a plain intention to constrain the extent to which the FOI Act pursues its purposes and objects against persons (or entities) providing administrative support to individuals who hold independent offices and are not subject to the operation of the FOI Act. The Official Secretary, like courts and other bodies governed by the FOI Act, is only required to grant access to a limited class of documents, characterised by a relationship between the document and subject matter of an "administrative nature". The meaning of that statutory characterisation cannot be determined without some reference to the FOI Act as a whole, and the circumstance that the documents to which access must be granted are an exception to the position that the Governor‑General is not subject to the operation of the FOI Act [36].
e) The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non‑disclosure [37].
f) The "non‑application" of the FOI Act to requests for access to documents of the Official Secretary, as stated in s 6A(1), inevitably refers to a class of documents relating to matters which are not "of an administrative nature". In conformity with the exclusion of the Governor‑General from the operation of the FOI Act, those documents relate to the discharge of the Governor‑General's substantive powers and functions. By contrast, the exception of a class of document which relates to "matters of an administrative nature" connotes documents which concern the management and administration of office resources, examples of which were given above.  This is a common enough connotation of the epithet "administrative". The Full Court apprehended this distinction in s 6A(1) correctly, referring to the latter class of documents as relating to the office "apparatus" which supported the exercise of the Governor‑General's substantive powers and functions [41].
g) The preceding construction of s 6A(1) governs its operation and application in relation to the range of diverse powers and functions of the Governor‑General in respect of which the Official Secretary may be called upon to provide assistance and support [42]. 
h) The analogous exclusion of federal courts and specified tribunals, authorities and bodies from the general operation of the FOI Act, except for documents which relate to matters of an administrative nature, also involves a balance of conflicting public interests. There is a long‑recognised public interest in the protection of judicial independence to enable holders of judicial office to exercise authority without fear or favour − judges work in public, are obliged to give reasons, and are subject to appellate review.  However, not every action undertaken by a judge in the discharge of the substantive powers and functions of adjudication is undertaken in public.  For example, revision of an unrevised transcript of proceedings heard in open court may occur in chambers.  That task is referable to the exercise of judicial, rather than administrative, powers and functions [45].
i) Accordingly, the only documents which courts and specified tribunals, authorities and bodies are obliged to open to increased public scrutiny are those documents relating to the management and administration of registry and office resources.

The documents that I have request are far removed from judicial functions.

Consider the email that Warwick Soden sent to Sia Lagos on 14 February 2019.

It is so worded:

“Dear Sia

When signing proposed appointment of Registrars I usually look at their CVs, experience and qualifications for appointment.

When looking at [REDACTED] qualifications I note that he was admitted as a lawyer of the Supreme Court of NSW on 8 February 2019.

While I have no difficulty with the proposed appointment of Registrar, I do question the apparent assumption (as usually occurs) for the automatic delegation of all powers of the Court that could be delegated to a Registrar when the person was so recently admitted. Should we not think about a limited delegation for the time being as I assume you would not be suggesting that [REDACTED] preside in court in the near future?

Happy to discuss.

Warwick”

The nexus between the email sent by Warwick Soden and a function of the Court or of a judicial officer is tenuous at best. It is not the sort of document that is, to adopt the words used by the plurality of the High Court (at 45) in Kline, “referable to the exercise of judicial, rather than administrative, powers or functions.”

Nor is something that relates to the range of powers and functions of a judicial officer in respect of which the CEO of the Federal Court may be called upon to provide assistance and support (not yet anyway).

The document contains the concerns of the CEO of the Federal Court about the professional competence of a person engaged under the Public Service Act 1999 (Cth) to serve in the role of registrar. The document relates to the issue of whether a person engaged under the Public Service Act 1999 (Cth) was engaged on something other than his merits. The power to be potentially exercised by the CEO of the Federal Court (the power of appointing a registrar) is not a judicial power or a task referable to the exercise of judicial, rather than administrative, powers or functions. The power to be potentially exercised is an administrative power, being the power to appoint a person to the office of registrar following the person’s engagement under the Public Service Act 1999 (Cth). It is the culmination of a process of (what should have been) merit-based selection. It is a power vested exclusively in the CEO of the Federal Court (see s 18N of the Federal Court of Australia Act 1976 (Cth)). No judicial officer has anything to do with the appointment of a person to the office of registrar and making such an appointment is certainly not an adjudicative function or function that remotely resembles anything of a judicial nature.

The document is eminently capable of characterisation as a document relating to matters of an administrative nature – namely, the engagement of a person under the Public Service Act 1999 (Cth) and the concerns of the chief administrator of the Federal Court about the person’s professional competence to exercise certain functions and powers, and the better view is that it is a document that relates to matters of an administrative nature.

Now consider the email from Sia Lagos to Warwick Soden. The email is aimed at convincing Warwick Soden that the male registrar, whose name I shall not mention at this stage, is competent and met the requirements for merit based selection (which he did not because admission to the Supreme Court of a State or Territory was a precondition to engagement). While it is conceivable that the email could be characterised as one that relates to the range of powers and functions of a judicial officer in respect of which the CEO of the Federal Court may be called upon to provide assistance and support, it is just as capable of being characterised as a document in which Mr Soden seeks assurances that the person engaged under the Public Service Act 1999 (Cth) was selected on the basis of merit and is capable of doing the things required of a person who might exercise delegated judicial functions. In other words, it is a document going to the operation of the human resources functions of the Court and, in particular, the engagement of employees on the basis of merit.

While you may be correct on the question of refusing access to the email that Sia Lagos sent to Warwick Soden on 20 February 2019, I am not prepared to take your word on the matter because your record of decision making (and, in particular, your reasons for decision) is questionable.

The important thing, from my perspective, if for the requested documents to get into the hands of the Information Commissioner, and for an impartial decision to be made in respect of the request (unless the internal review decision maker provides access to the requested documents).

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/r...

Yours faithfully,

Stephanie

External FOI, Federal Court of Australia

OFFICIAL
Dear Stephanie,

I acknowledge receipt of your request below for an internal review of the decision made on behalf of the Federal Court of Australia and dated 14 November 2022.

Kind regards,

FOI Officer
Federal Court of Australia

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