Challita v NSW Department of Education and Training

[2009] NSWADT 116

CITATION:	Challita v NSW Department of Education and Training [2009] NSWADT 116
DIVISION:	General Division
PARTIES:	APPLICANTS Jolanda and Peter Challita RESPONDENT NSW Department of Education and Training
FILE NUMBER:	073361
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	15 October 2008
DATE OF DECISION:	22 May 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - substantial and unreasonable diversion of agency's resources
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Challita v Director General, Department of Education and Training [2006] NSWADT 109 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Cianfrano v Director General, Premier's Department [2006] NSWADT 137 Cianfrano v Director General, Premier's Department (GD) [2006] NSWADTAP 48 McGuirk v University of New South Wales [2007] NSWADT 270 Roads and Traffic Authority, NSW v Hutchinson (GD) [2007] NSWADTAP 28
REPRESENTATION:	APPLICANT In person RESPONDENT A Johnson, solicitor
ORDERS:	1. The decision under review is affirmed 2. Each party to proceedings is to bear the party’s own costs in the proceedings.

Background

1 By an application dated 11 July 2007 the Applicants applied to the Department of Education and Training ("DET") under the Freedom of Information Act 1989 ("the FOI Act”) seeking access to:

"All documents, correspondence, papers, memos, files, emails, filenotes, written communications, submissions, recommendations, minutes of meetings and reports relating to the decision to deem Jolanda Challita vexatious for the period 2002 to date.

All documents, correspondence, papers, memos, files, emails, file notes, written communications, submissions, recommendations, minutes of meetings and reports relating to the handling of allegations of bias, victimisation and misconduct made by Jolanda and Peter Challita for the period 2002 to date including and not limited to the matters brought up in the attached list of records dated 19 October 2005. "

2 By letter dated 31 July 2007, Mr Cribb, the DET’s A/Manager FOI wrote to the Applicants and indicated that the work involved in dealing with the application would substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions. Mr Cribb suggested ways in which the application might be amended.

3 By letter dated 7 August 2007, the Applicants provided further clarification and limited their application. The Applicants sought all documents relating to and supporting the decision to deem them vexatious or present them as vexatious. In relation to complaints they had made the Applicants provided the following documents to the DET:

1. Letter from Mr Refshauge dated 4 August 2003 advising a full investigation will be commenced.

2. Responding to suggestions in complaint form dated 12 June 2004 with Annexure.

3. Responding to suggestion and complaint form dated 16 June 2004.

4. Responding to suggestion and complaint form dated 17 June 2004.

5. Responding to suggestion and complaint form dated 29 July 2004.

6. Responding to suggestion and complaint form dated 2 December 2005.

7. Letter to Chris Ballentine dated 27 July 2006.

8. Letter to Director Audit dated 8 April 2007.

4 On 15 October 2007 the determination was made to grant access in full to 59 documents that the DET considered to be caught by the application.

The internal review

5 The Applicants considered that the determination did not address the second part of the FOI application and so they sought an internal review of the determination. The DET did not undertake the internal review within the 14 days allowed by section 34(6) of the FOI Act and the DET was therefore deemed to have made a determination refusing access to the document to which the application relates.

The external review

6 The applicant applied to the Tribunal for review of the DET’s deemed refusal.

7 The matter was listed for a planning meeting on 29 January 2008. At that time I remitted the matter to the DET for it to undertake an internal review. The Manager of the DET’s Freedom of Information Unit, Ms Elissa Stathis, undertook the review.

8 Ms Stathis varied the DET’s deemed refusal in relation to the matter. In relation to paragraph 2 of the Applicants’ original application, she indicated that processing the application would involve an unreasonable and substantial diversion of the agency's resources.

9 Ms Stathis completed the review on 25 March 2008 and the matter came back before me shortly thereafter. On 3 April 2008, a planning meeting was held in the Tribunal at which the applicant withdrew her external review application in respect of the first paragraph of her FOI application. Only the second paragraph of her application remains on foot. The request was limited to eight formal complaints that they lodged in accordance with the Responding to Suggestions and complaints policy. They seek all documents relating to those complaints.

10 At the planning meeting I set a timetable for filing of material and the parties agreed for the matter to be determined on the papers. The matter was subsequently adjourned and the timetable was vacated because the parties agreed to attempt mediation in an effort to reach a resolution in relation to this matter and other issues that are in dispute between them. That mediation was unsuccessful and so a new timetable was set. Each party has filed written submissions. The DET also relies on a statement of evidence provided by Ms Stathis.

Relevant legislation

11 The DET refused the application for access to documents on the basis of section 25(1)(a1) of the FOI Act. Section 25(1)(a1) provides:

“25 Refusal of access

(1) An agency may refuse access to a document:

…

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions”

The Respondent’s case

12 The DET filed and served a copy of its file in relation to the Applicants’ request. It also relies on Ms Stathis’ statement of evidence and written submissions provided by Ms Johnson.

13 In relation to the eight letters referred to by the Applicants, Ms Stathis stated:

“19. As can be seen from considering those letters, most of the complaints concern more than one person and or more than one Unit.

20 Generally the Department does not keep discrete complaints files, unless the incoming correspondence is classified as a Registered Ministerial letter ("RML") or a Registered Director-General letter ("DML"). There are some files of this kind listed in Attachment "A" but I would still have to look those files to see whether the contents of them relate to one of the 8 specified letters.

21. Otherwise the complaints seem to have been made when the applicant became dissatisfied with some other aspect of the way in which the Department was handling her concerns. As files in relation to her substantive concerns were already in existence, I anticipate that these complaints would also have been filed in amongst the documents dealing with her substantive concerns.

22. In order to be certain that I had located all of the documents sought by Ms Challita, I would therefore need to look through the 85 volumes of files held by the Department in relation to Ms Challita and her concerns. In looking through these 85 volumes, it may be that I am fortunate enough to find all eight complaints very quickly. However there is no guarantee that this would happen. In addition a number of departmental staff may have been consulted in relation to anyone complaint and without looking through all 85 volumes I could not be confident that I had located all of the relevant documents.

23. Complying with Ms Challita's request would involve a number of steps. I would firstly need to retrieve all of the files which relate to Ms Challita. A review of the list of files which is attachment A shows that the files are not all in one place. Accordingly, it will take me some time to locate and retrieve them. I estimate that merely retrieving the 85 volumes of files will take me at least 3 hours.

24. I estimate that each of the 85 files would have 100 pages on it. I think that it will take me (at least) 10 seconds to scan through each page to see if it concerns Ms Challita's complaint. In total this will be 1,416 minutes or 23 hours.

25. My conservative estimate is that each of the 8 complaints that Ms Challita wants to access will have generated at least 25 pages of documents in response. There will therefore be (conservatively) 200 pages of documents to process. Some pages may contain more complicated information than others. However, there may also be documents which are several pages long and/or which are duplicated, which will lead to economies when preparing the schedule.

…

26. The total time taken to process this application is therefore:

Search for documents 23 hours

Processing application 18 hours 20 mins

Total 41 hours 20 mins

I therefore estimate that it will take at least 41 hours or 6 days to process this application.

…

32. My estimate is that it will take a minimum of 41 hours to process this application. Only 5.8% of applications to the Department take this long to process.

33. The Department's FOI Unit ordinarily has six staff. Two senior experienced staff left the unit in April/May 2008. The position of principal FOI Officer is currently filled on a temporary basis until recruitment action is completed. Another officer has recently returned after a long period of sick leave. New FOI officers necessarily require a period of time to become familiar with processes and equipment before working at the same capacity as the officers replaced. Processing an application of this size would involve a substantial diversion of the resources of the Department's FOI Unit.

34. In circumstances where the applicant has already received a considerable number of documents in response to her 18 FOI applications, I consider that it would be unreasonable to engage the Department in a further 41 hours of processing this application.”

14 Ms Johnson provided submissions in regard to the Judicial consideration of section 25(1)(a1) of the FOI Act and the approach to be taken in determining whether an agency has correctly refused access under s 25(1)(a1). See Roads and Traffic Authority, NSW v Hutchinson (GD) [2007] NSWADTAP 28; Cianfrano v Director General, Premier's Department [2006] NSWADT 137; Cianfrano v Director General, Premier's Department (GD) [2006] NSWADTAP 48; Challita v Director General, Department of Education and Training [2006] NSWADT 109; McGuirk v University of New South Wales [2007] NSWADT 270; Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35.

15 She identified a number of factors that have been regarded as relevant to this consideration and submitted in relation to each of those factors. She submits:

Whether s. 25(1)(a1) was correctly invoked in relation to this application

(a) Terms of the request.

18. Each of the considerations set out above are addressed in turn below.

19. The request is limited to 8 complaints, but in respect of each complaint the applicant has requested all the documents. It is therefore difficult to comprehensively locate all documents within the scope of the request. Further, the complaints are multi-faceted and Ms Stathis' evidence is that she expects that the complaints would have required a response from more than one area of the Department.

(b) Importance of the document or documents to the applicant

20. The issues are of importance to the applicant. However, the respondent's allocation of time to the applicant's concerns has been generous. As Ms Stathis says in her statement, the applicant has made 18 FOI applications to the DET. This 19th application no longer relates to her children's education. Rather, the applicant now seeks tertiary documents created in response to what she says was the DET's failure to deal with her complaints of bias, misconduct and harassment. The complaints of bias, misconduct and harassment were themselves a response to her dissatisfaction with the DET's handling of Ms Challita's criticism of the DET's approach to her children's applications to enter the selective school system.

(c) Manageability of the request having regard to the size of the agency and the extent resources usually available for dealing with FOI applications

21. The DET is a large agency and has a dedicated FOI staff of 6. However, it also processes a large number of applications. In the last financial year 2005-2006, the Department received a total of 362 freedom of information applications and processed 360 requests.

22. In addition, the FOI unit has recently experienced significant staff changes including the departure of the Leader FOI and the secondment of the legal officer attached to the unit. There are currently 6 staff in the unit, however newly appointed officers do not yet have the same capacity to deal with matters as the senior experienced officer they have replaced.

23. This is still an unmanageable request having regard to the time necessary to process it.

(d) Number of documents affected by the request, the officer time and salary cost to the agency

24. As noted above, this consideration should be taken to include the time required to locate, identify and schedule documents, engage in consultation with third parties, and determine whether or not to grant full or partial access having regard to the potential exemptions.

25. The sampling exercise at paragraph 27 of Ms Stathis' statement shows that she estimates that it will take 41 hours to process this request. In Cianfrano v Director General, Premier's Department, the President indicated that requests which require much more than 40 hours to process may properly raise concerns.

(e) Reasonableness of the initial assessment and the Applicants' co-operation in redrawing the boundaries of the application.

26. The applicant has cooperated in narrowing the terms of her application. However, as Ms Stathis explains in her statement, the estimated time is still significant because of the way the agency's documents are filed. This request has a number of parallels with the matter of Hutchinson which was considered by the Appeal Panel and where the respondent needed to look through 405 files in order to identify whether any documents existed which might fall within the scope of the FOI application.

(f) Time lines binding on the agency

27. The timelines binding New South Wales agencies are tight compared to other jurisdictions. For example, an agency has 21 days to respond to a request and 14 days to respond to an internal review request.

(g) Whether more than 40 hours' time is involved

28. Only 5.8% of the FOI applications received by the DET take more than 40 hours to process. This would certainly be one of those applications.

h) Possibility that processing time may exceed the first estimate.

29. Ms Stathis says that her estimate of the time that is likely to be involved in processing this application is conservative and there is therefore a real possibility that Ms Stathis' estimate will be exceeded. The complexity of the dealing with the application can bee seen from a review of the list of files which is Attachment A to Ms Stathis statement which shows that the files in relation to the applicant are located in a number of different parts of the Department and deal with a variety of issues.

(i) The applicant is a repeat applicant

30. This is the Applicants' 19th application. The applications are now extending beyond the initial matters of concern, to seeking documents about the agency's processes when it was dealing with her initial complaints.

31. The applicant's present application may have been met (in part) by previous applications, but even determining whether there has been duplication would involve a considerable use of the agency's FOI resources.

(m) Is there a public interest in the disclosure or non-disclosure of these documents?

32. Whatever public interest there is in dealing with the Applicants’ concerns about the Department's handling of her children's applications for selective schools entry, this public interest has been fully satisfied in the time taken by the Department to deal with her 18 previous FOI applications and in the myriad of responses in relation to other correspondence that the applicant has already received from the Department.

Whether the DET provided adequate justification in its statement of reasons

33. In Roads and Traffic Authority, NSW v Hutchinson, the Appeal Panel said that

"An agency invoking the section as grounds for refusing a request would have to provide a justification in its statement of reasons. That might take the form of an assessment of the scope of the request by an officer with relevant expertise in regard to the agency's record keeping arrangements, including organisation and location of documents and the ease or difficulty with which they can be accessed."

34. The respondent's redetermination of the Applicants’ request (by letter dated 25 March 2008) sets out a detailed explanation of the work that would be involved in dealing with this request and its justification for refusing to do so. There can be no criticism of the agency's response on this basis. A copy of that letter is attached to these submissions for the Tribunal's convenience.

16 Ms Johnson also filed submissions in response to a number of issues raised by the Applicants. The DET denies poor record-keeping on its part. The DET concedes that it has a record keeping policy that requires it to maintain a complaints register or files. However Ms Johnson submits that the policy only requires that it keep a complaints register or file the complaints received. She says that the policy does not require the DET to open a separate file for each complaint received, although this can be done.

17 She refers to the statement of Ms Stathis as supporting the expectation that the complaints have been included in a file, but not necessarily on a separate file.

18 Ms Johnson submits that the frequency, complexity and repetitiveness of the Applicants' complaints is evident from the face of the 8 complaints and that it was appropriate for the DET to deal with them in the way outlined by Ms Stathis. Ms Johnson refers to the Applicants’ attempt to identify the location of files and the documents that might fall within the scope of the request and says that the Applicants appear to have identified files held in 21 separate locations. She submits that the Applicants' submissions confirm that when Ms Stathis estimated that it would take at least 41 hours to process their application, she was being very conservative. She says that it is not appropriate to assess the amount of time that is likely to be involved in processing the application by reference to the Applicants’ assertion that they and their four children will benefit from the application. Ms Johnson submits that the plain words of section 25(1)(a1) refer to the diversion of resources involved in "dealing with the application". Therefore, it is the application itself that is to be considered when assessing a claim under section 25(1)(a1), not the number of interested persons who might stand behind the application. She submits that there is no evidence of poor record keeping which would warrant a reduction in Ms Stathis' estimates.

19 Ms Johnson submitted that for these reasons, the DET’s determination that processing this application would involve a substantial and unreasonable diversion of its resources should be upheld.

The Applicants’ case

20 The Applicants rely on written submissions in reply to the material filed on behalf of the DET.

21 The Applicants referred to the DET’s applicable ‘Responding to Suggestions and Complaints’ policy, which states the procedure required in dealing with complaints. They contend that the DET is required to maintain a complaints register or files and therefore the process of determining whether the documents relate to the complaints should not be to difficult. The information that the DET is required to record includes: Date received; Complainant details; Date of acknowledgment; Details of assessment; Decision with reasons; Date of the outcome advice to all parties. The Applicants submitted:

15. In this matter allegations are being made of systematic bias, bullying, victimization, bullying, manipulation of state records and misconduct and a conspiracy to cover up involving our 4 children and spanning 8 years. As the DET have used the 'so called' investigation of the original complaints as a reason to not acknowledge or accept new allegations made in subsequent years it is imperative that the DET be required to provide evidence of their investigations as the welfare and wellbeing of children is involved.

16. It should never be referred to as an unreasonable diversion of resources to provide evidence in relation to a matter that is a child protection issue as the welfare and wellbeing of children should always be of paramount concern. Failure to provide evidence of the investigation would mean that the Department of Education is failing in their duty of care to protect the children.

17. We believe that the fact that this is a serious public interest matter should be a factor in determining this matter. Integrity, impartiality and due process in relation to matters to do with children and education are of utmost concern.

22 In response to the issue of whether section 25(1)(a1) was correctly invoked in relation to this application, the Applicants submitted:

(a) Terms of the request

18. A previous FOI request was made on 12 June 2004 (FOI-04-121 as attached to Statement by Elissa Stathis). This FOI application sought documents pertaining to the investigation of the complaints, amongst other things. This FOI application was refused by the DET on the basis that the DET indicated that they had previously produced the documents. This is despite the fact that the DET had not provided any documents in relation to the complaints and had not honoured the agreements that they had made at the ADT on 18 August 2003 to produce the documents.

19. The FOI Application lodged in 2007, the subject of this application, again sought evidence of the investigation of all complaints made by the Applicants on behalf of our children from the year 2002 to date amongst other things - copy application attached and marked with Annexure "D". At the request of the DET we limited the FOI request to eight formal complaints that we lodged in accordance with the Responding to Suggestions and complaints policy. This policy requires that complaints be dealt with and filed in a certain order and manner. The records should be easily accessible as per the State Record Keeping Act.

(b) Importance of the document or documents to the applicant.

20. Original FOI applications have been made in relation to different matters pertaining to our 4 children over different years. The fact that 18/19 FOI applications have had to be lodged is a direct result of the DET's failure to afford us procedural fairness and natural justice. Due to delay tactics, obfuscation and malfeasance many FOI applications have been required to be filed twice seeking the exact same documents requested in previous applications. Applications that were delayed closed and/or treated with contempt and ignored.

21. The complaints of bias and misconduct include allegations of manipulation and destruction of state records evidenced in documents produced under FOI as well allegations of a conspiracy to cover up.

22. The records are extremely important to the Applicant to shed some light on the matter with regard to the process undertaken by the DET.

Access to Departmental records which have already been granted

23. Whilst the DET have provided some documents in relation the applications they have not complied with the requirements under FOI.

24. In the statement of evidence by Elissa Stathis she states that on 27 August 2003, that the applicant was given an opportunity to view the test papers relevant to [their children’s] opportunity Class and Selective High School applications including an electronic print out of the answers together with the answer key.

25. What Elissa Stathis failed to mention in her statement was that the viewing was deemed unsuccessful as those present on behalf of the DET bullied, harassed and intimidated the children and the applicant Jolanda until we left in tears. It was agreed that this viewing should be re-arranged. This viewing is yet to take place. It is also a fact that electronic print out of the answer sheets needed to be provided because the DET destroyed the original answer sheets that had been specifically requested to be set aside under FOI so as to verify the marks. It is also a fact that the DET said that the electronic answer sheets that were provided for the viewing were sent direct from Acer in Victoria, as they are the company who marks the tests, when in fact the print out of the answers had been printed from the DET's computer system.

26. The DET have not provided any documents in relation to the investigation of our family’s complaints so I cannot see how the Department can say that documents previously released would be processed twice?

27. In November/December 2003 the Minister for Education was provided with a submission by the Selective Schools Unit in response to representations made by Mr. Brogden MP. This submission had attached to it a draft letter for the Minister to sign that stated, amongst other things that enquiries had been completed and the matter closed. This is despite the fact that no investigation had taken place despite formal allegations being made and the DET had not honoured the agreements that they made at the ADT on 18 August 2003. The Minister did not decide anything himself as stated in Elissa’s statement, he was presented with a draft letter which he signed and the submission that was presented to support that letter was filled with misrepresentations and lies.

(c) Manageability of the request having regard to the size of the agency and the extent resources usually available for dealing with FOI applications

28. The DET is a large agency. In it's website it states in relation to FOI the following:

(a) "The Freedom of Information (FOI) Act, 1989, gives the public the right of access to documents held by most government agencies including the NSW Department of Education and Training. You are also able to ensure that records held by the Government concerning your personal affairs are not incomplete, incorrect, out of date or misleading."

29. It is clear that the DET's is aware of the obligations under FOI.

30. In July 2004 we sent a letter to Mr. Murn clearly outlining our desire to separate the FOI matters and our formal complaints of bias, manipulation of state records and misconduct as it had become clear to us that the DET was trying to confuse the two and include the complaints as part of the FOI applications so as to avoid addressing the complaints ...

(d) Number of documents affected by the request, the officer time and salary cost to the agency

31. Mrs Stathis statement of evidence shows a list of Documents 85 entries long that have all been dumped in no particular date order, without grouping in any manner or form. One would imagine that trying to locate the documents in this format would take some time.

32. In response the applicant has taken the time to sort the documents so as to more clearly determine the whereabouts of the documents held at the DET and the number and type of documents held in each location …

33. During the process of properly identifying and setting out the documents for the Department it was noted on page 9 of the 'List of Records' provided in the Statement by Elissa Stathis, and on our schedule headed List of Records dated 12 March 2008 under the heading Legal Services Directorate (Annexure G), that on the 30 July 2007 the FOI Application in question in this ADT application was registered to John Murn and was listed as a Corporate File and that on 15 October 2007 it is noted as having been closed. This is despite the fact that the FOI application had still not been finalised by 15 October 2007 as not all documents had been produced and one entire part of the application had been ignored. It is also disturbing to see other matters presently also before the ADT having been registered as closed.

(e) Reasonableness of the initial assessment and the Applicants' co-operation in redrawing the boundaries of the application.

34. It is clear by the screen dump provided by Ms Stathis that the way documents are filed and kept would breach the record keeping requirements and Act.

(a) FOI Applications lodged relate to matters pertaining to different children on different occasions over many years. Already the Applicant has reduced the scope of the Application, made clear the documents required and assisted the DET in every way possible as required under the Act.

(f) Time lines binding on the agency.

35. Timelines might be tight for FOI in NSW but that is only if the DET complies. The first FOI seeking access to these documents was filed in 2004. The second FOI application was lodged on 11 July 2007. It is now 19 September 2008 and many years later we have still not received the documents despite complying with everything requested of us by the DET.

(g) Whether more than 40 hours' processing time is involved.

36. This application is in relation to matters pertaining to four children over many years. It is also a fact that if the amount of 40 hours was to be divided by the 4 children and the Applicants, about whom the applications refer and have been separately paid for, then the time would in fact only be less than 7 hours each.

(h) Possibility that processing time may exceed the first estimate.

37. The complaints were all filed as per policy and procedure requires and relate to allegations of bias, manipulation and misconduct by the Selective Schools Unit. That the DET sent the complaints and files to different departments to deal with is against their Policy in handling complaints of this nature and not something that should then be allowed to be used by them to deny giving applicants access to documents and in particular when the matter involves child protection issues.

(i) The applicant is a repeat applicant

38. In reality the applicant has lodged 8 original FOI applications relating to test papers and school documents pertaining to Opportunity Class placement and Selective High School placement, Ella tests and Basic Skills tests for her children spanning 7 years ... The fact that 19 applications have had to be lodged is a direct result of the DET's failure to afford us our rights and to afford us procedural fairness and natural justice. The majority of these applications have been repeat applications (some more than twice) as the DET have not provided the documents requested of them within the required times and have used delay tactics, obfuscation and have ignored our applications until time issues have come into play and applications have had to be re-lodged in order to ensure that the ADT had proper Jurisdiction to deal with the matters. If the applications are repeat applications it is through no fault of the Applicants who have always endeavoured to assist, be fair and do the right thing.

(m) Is there a public interest in the disclosure or non-disclosure of these documents?

39. It is of significant public interest when the Department of Education can refuse to provide evidence of investigations that they say have been conducted in relation to serious allegations made against public servants. This is particularly significant if further fresh allegations are being filed away without investigation on the basis that the public servants in question have been cleared of any misconduct during the original investigations.

41 Concerned citizens using FOI have a valid and important role to play in scrutinizing government conduct and promoting accountability.

40. Procedural fairness is something that is of significant public interest and concern. Whether the DET provided adequate justification in its statement of reasons.

42 The safety well being and protection of children is of paramount concern and the DET have a duty of care to protect children. I do not believe that the DET have provided adequate justification in its Statements/Submissions.

23 The Applicants also seek an order for costs against the DET.

24 The Applicants argue that the time taken to prepare applications and deal with matters in relation to this application over many years has been significant and has involved a lot of hours and time taken off work as well as solicitors costs, photocopying fees, filing fees and the like. Ms Challita resigned from her full-time job and undertook casual work to enable her to have the time to deal with these matters.

25 The Applicants argue that they are entitled to compensation for the manner in which the DET has handled and dealt with this application to date. They asserted that the failure of the DET to afford them procedural fairness and natural justice and to deal with the application in a proper and timely manner has caused psychological and emotional harm to the family unit and put children at risk. They also asserted that the failure to the DET to properly comply with their requirements under FOI has ensured that children have not been protected and that they have been further subjected to bias and harm. This has caused significant emotional as well as financial and social harm to the family.

26 They say that they and their children were put to unreasonable and extraordinary inconvenience, prejudice, expenses, costs, and risk of harm by the DET's failure to provide disclosure in accordance with the FOI legislation.

27 In reply, Ms Johnson submits that the DET's conduct in these proceedings does not warrant a costs order. She submits that the DET's has filed its material promptly and provided appropriate explanations to the Applicants in planning meetings. The only adjournment of the matter was made at the request of both parties in order to pursue settlement avenues outside of the Tribunal.

28 The DET denies that it has dealt with the Applicants in a manner that is unfair or inappropriate, indeed, it argues that it has acted quite to the contrary. Ms Johnson submits that an application for costs must be founded on the party's conduct in the proceedings currently before the Tribunal. She says that the Applicants rely on the entire history of their dealings with the DET in support of the costs order, including their dealings in relation to a multitude of other past FOI applications. She argues that the matters that the Applicants refer to are irrelevant to the Tribunal's decision in relation to costs in this matter.

Discussion

29 The task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). This concerns the question of whether the DET’s determination that processing this application would involve a substantial and unreasonable diversion of its resources is the correct and preferable one.

30 Much of the argument presented by the Applicants is related to the approach that has been taken by some officers within the DET in dealing with a number of earlier requests made by the Applicants. In my view, the majority of those arguments are not directly relevant to the issue to be determined. Nevertheless they are of acute concern to the Applicants. It seems to me that this is a result of a long history of animosity between them and some officers within the DET. The situation has been aggravated by confusion as to the meaning of terminology uses in some correspondence from the DET to the Applicants and in some internal records maintained by the DET. This can be seen, for example, from the use of the expression ‘vexatious’. The Applicants were informed that a decision was taken to deem Ms Challita ‘vexatious’. It appears that no such decision was in fact taken but rather this expression was a shorthand reference adopted by officers within the DET to refer to persons who are regarded as ‘annoying’ regular correspondents and as persons to whom no further responses should be sent. This is clearly of significance to the Applicants who consider that they have raised legitimate issue that have not been adequately addressed. Their inability to access documents that might allay those concerns has further aggravated the situation.

31 The Applicants’ concerns have been further aggravated by the fact that the DET has indicated that some of the issues that they have raised have been ‘investigated’ and the Applicants dispute that assertion. Again, it seems to me that there is great disparity between the meaning attributed by the Applicants to the expression ‘investigated’ and that intended by the officers within the DET who have used that expression.

32 The Applicants assertion that the DET has not provided any documents in relation to an earlier matter, and had not honoured the agreement to produce the documents that it made at the Tribunal on 18 August 2003, are serious assertions. While they are not rightly explored in this matter, they are issues that could have been explored in mediation.

33 I regarded Ms Johnson’s suggestion that these matters could be resolved by mediation as an excellent one. Regrettably the mediation was unsuccessful. However, I encourage the parties to explore that option further.

34 Ms Stathis has provided evidence with respect to the task involved in processing the request. The Applicants have suggested that the DET has failed to comply with its own complaint handling policy and the requirements for the keeping of records in NSW. It is my understanding that the Applicants assert that the time involved in locating the documents is a direct consequence of the DET’s failure to comply with the record keeping requirements. Nevertheless, they accept that trying to locate the documents ‘would take some time’.

35 The Tribunal has no role to play in regard to assessing whether or not the DET has complied with its obligations under legislation governing the keeping of State records. I agree with the Applicants in that, given the history of the interactions between the Applicants and the DET, it is reasonable to expect that the majority of the documentation regarding those interactions would be maintained in a single location. That being the case, locating those documents should be a relatively quick process.

36 However, as Ms Stathis has indicated, it is necessary that she locate all of the documents sought. While most records will have been kept at a single location, it is probable that individual officers within the DET who have dealt with the earlier complaints will have retained some documents eg emails or file notes, that fall within the scope of this application.

37 The time frames identified by Ms Stathis that are concerned with locating documents, should be largely concerned with locating and retrieving those documents that are not maintained in a single location. The remainder of the time will be concerned with processing the request once the documents have been located.

38 Ms Stathis has estimated that there will be some 8500 documents in the files that relate to the Applicants. Not all of those documents will fall within the scope of the request and therefore it is necessary that an assessment be made of each document. Ms Stathis has estimated that it will take at least 10 seconds to scan each page to determine whether it falls within the scope of the request.

39 In my view, this is a conservative estimate of the time involved in locating and the initial assessment of the documents.

40 Ms Stathis has estimated that there will be some 200 documents that will fall within the scope of the request. Each of those documents will need to be processed and the subject of a determination as to whether exemptions apply. She has calculated an estimate of the time for that task, the preparation of a schedule, drafting a determination, consultation of third parties, photocopying and filing. She estimates that a total time of at least 41 hours 20 mins would be required.

41 In Cianfrano v Director General, Premier's Department, the President indicated that requests which require much more than 40 hours to process may properly raise concerns. While Ms Stathis has estimated 41 hours 20 mins to process the request, I accept that this is a conservative estimate of the time involved. It could not be regarded as in any way inflated to bring it within the range referred to in Cianfrano v Director General, Premier's Department.

42 Ms Johnson has undertaken a thorough review of Tribunal decisions regarding section 25(1)(a1) of the FOI Act and the approach to be taken in determining whether an agency has correctly refused access under s 25(1)(a1). I agree with her summary of the caselaw on this point and the factors that need to be taken into account. I do not agree that this matter can be correctly described as ‘a child protection issue’ and therefore I have not considered whether there are any additional factors that might relate to a request that concerns a child protection issue.

43 When assessing whether a demand would have an undue impact it is not intended that all of the resources of an agency be taken into account, but rather what is to be considered is the resources reasonably required to deal with an FOI application with attendance to other priorities. The resources of an agency means the resources that the agency actually has or could obtain, unless the absence of resources indicates a deliberate failure to provide resources to respond to FOI applications (Cianfrano v Director General, Premier’s Department at paragraphs [55] – [59)].

44 Ms Stathis has identified the DET’s resources and the potential impact on those resources if the request were processed. I accept this evidence.

45 Having weighed the material presented by each of the parties I am satisfied that that processing this application would involve a substantial and unreasonable diversion of the DET’s resources. It follows in my view that the DET has correctly refused access under s 25(1)(a1).

46 Accordingly, the determination should be affirmed.

Costs

47 The Applicants seek an order for costs. The DET has resisted that application. Each has provided submissions in regard to that application.

48 The Tribunals power to award costs is governed by section 88 of the ADT Act. During the course of this matter section 88 of the ADT Act provided that the Tribunal “may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs”. There are numerous decisions on what constituted “special circumstances warranting an award of costs”.

49 However, as at 1 January 2009 section 88(1) was amended and new sub-sections inserted in lieu in the following terms:

88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

...

50 While Ms Johnson’s submission on the question of costs was in regard to the former provision, it is equally applicable to the current provision. In my view, an application for costs must be founded on the party's conduct in the proceedings currently before the Tribunal. The issues raised by the Applicants as supporting their application for costs are either not ones that can be taken into account in regard to this costs application or are not persuasive. In my view, the DET's conduct in these proceedings does not warrant a costs order.

Decision

1. The decision under review is affirmed.

2. Each party to proceedings is to bear the party’s own costs in the proceedings.