Chand v RailCorp

CITATION:	Chand v RailCorp [2009] NSWADT 44
DIVISION:	General Division
PARTIES:	APPLICANT Bimla Chand RESPONDENT RailCorp
FILE NUMBER:	073389
HEARING DATES:	18 September 2008
SUBMISSIONS CLOSED:	18 September 2008
DATE OF DECISION:	2 March 2009
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents – adequacy of search – substantial and unreasonable diversion of agencies resources
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 Radar Investments Pty Ltd and Health Insurances Commission (2004) 80 ALD 733, [2004] AATA 166
REPRESENTATION:	APPLICANT Bimla Chand RESPONDENT RailCorp
ORDERS:	The decision of the respondent to refuse Ms Chand access to the Category 3 documents is affirmed.

Introduction

1 Ms Bimla Chand (‘Ms Chand’) has sought review of a decision of the respondent (‘RailCorp’) in regard to her request, under the Freedom of Information Act 1989 (‘the FOI Act’), for access to four categories of documents. The categories of documents for which Ms Chand sought access were described in her FOI request as follows:

‘1. A complete unexpurgated copy of all documentation that relates directly to all of the actual and pending costs incurred in actions that are current, and or pending involving State Rail Authority against me in all current and pending external review forums such as the Australian Industrial Relations Commission, Administrative Decisions Tribunal, Anti-Discrimination Board and the NSW Courts regardless of who is attributed as the initiator of each individual process.

2. A complete table of documents that clearly identifies each document for which privilege is claimed, and an explanation as to how each specific document attracts the claim of privilege in actions involving State Rail Authority and any of its antecedent organisations against me, regardless of who is attributed as the initiator of each individual process.

3. Complete and unexpurgated copies of any and all documentation that does not attract privilege and relates directly, or indirectly to current or pending action involving State Rail Authority and any of its antecedent organisations against me regardless of who is attributed as the initiator of each individual process, which includes but is not limited to submissions, reports, e-mails, diary notes, minutes of meetings, or discussions, transcripts of telephone conversations, and other related documents including any advice sought, or given by any internal, or external entity but excludes correspondence sent from and received by me.

4. Any declarations applied by any person or entity in relation to this specific application including all documents and processes identified by the application.’

2 On 18 September 2007, Ben Stirling (‘Mr Stirling’), Manager, Freedom of Information and Policy of the respondent, made an initial determination of Ms Chand’s FOI. Following a request for an internal review, on 1 November 2007, Sandra Nicola (‘Ms Nicola’), Senior Solicitor of the respondent made an internal review determination. Ms Chand filed her application for external review with the Tribunal on…