Chant v Gwydir Shire Council
[2012] NSWADT 20
•10 February 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Chant v Gwydir Shire Council [2012] NSWADT 20 Hearing dates: On the papers Decision date: 10 February 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed
Catchwords: Government Information (Public Access) - sufficiency of search Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009Cases Cited: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409Category: Principal judgment Parties: Robert Walter Chant (Applicant)
Gwydir Shire Council (Respondent)Representation: T Farrell (Applicant, agent)
C Southwell (Respondent, agent)
N Case, (the Information Commissioner)
File Number(s): 113222
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): the Applicant has applied to the Tribunal for external review of a determination by the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act").
Background
By an application dated 4 February 2010 the Applicant applied to the Respondent pursuant to the GIPA Act for information concerning a trophy ("the trophy") that he had donated to the Respondent. The Applicant's access request was in the following terms:
"I request access to document(s) concerning:
All information as to the sale - by auction - of a trophy I donated to be awarded a Pumpkin Festival. Date of sale, name of licensed auctioneer, name of purchaser, purchase price and any other relevant details."
By letter dated 23 February 2010 from Ms Carmen Southwell, the Respondent's Publicity Officer, the Applicant was advised:
"Council records show that the last Pumpkin Festival was held in 2006 and that you donated a soup tureen.
Council Staff recalls that this item was placed on a table and sold for approximately forty ($40) dollars. The writer stated in a previous letter to you dated 26th July, 2010 that this item was auctioned, however this was incorrect. The item was simply displayed on a table and sold. No receipt was issued by Council for this sale, and there is no record as to who purchased the item.
A copy of the writer's file note is attached."
The Applicant was dissatisfied with Ms Southwell's response and wrote seeking further information from the Respondent.
It is apparent from the correspondence provided to the Tribunal that discussion between the parties has focused on the Applicant's demand that the Respondent return the trophy and not merely on the information sought by his application under the GIPA Act.
By letter dated 7 March 2011 the Respondent's General Manager, Max Eastcott, wrote to the Applicant and advised:
"Council refers to your letter of 28th February 2011 and your application for formal access under the Government Information (Public Access) Act , 2009 dated 4th February 2011.
Council has endeavoured, in good faith, to find an item described by you as a 'pumpkin trophy'. In your latest letter you write that the trophy is not white. Please note that when Mr Farrell attended the Council office on your behalf to inspect a trophy he said that it was not yours and further, he described the 'pumpkin trophy' to Mrs Southwell, as a white soup tureen.
To avoid further confusion would you please describe the item in detail.
Once Council has received a full description of the item another search may be undertaken. However, as you donated the item almost five years ago the search may prove fruitless. The search may also involve a fee."
The Applicant was again dissatisfied with the response he received and on 15 March 2011 wrote a terse reply to the Respondent. In return, Mr Eastcott wrote to the Applicant as follows:
"Council notes receipt of your letter dated 15th March 2011.
You are now advised that the Council will no longer even acknowledge or respond to any letter submitted under your signature or Mr Farrell's signature or any other stooge signature that Mr Farrell may involve in his on-going paranoia with Council that relates to any issue that is considered closed and dealt with by the Council."
It is apparent from the tone of the correspondence that the relationship between the parties is a difficult one.
On 31 March 2011 the following resolution was passed by the Council:
"THAT Gwydir Shire Council no longer wastes any further time or resources on correspondence received from Mr Tom Farrell or written by Mr Farrell on behalf of a third party.
FURTHER that any Gophers bearing offensive signs be banned from entering the Bingara CBD."
It appears that the Applicant also sought assistance from the office of the Information Commissioner ("the OIC"). By letter dated 10 June 2011 the Applicant was advised:
"The OIC considers that the Council's decision dated 23 February 2011 did not fully comply with the GIPA Act. In particular, the Council should have advised you of your reviews rights (section 126(c) of the GIPA Act).
The Council's decision could also be improved by setting out the searches that were conducted in processing your access application. The Council is required to carry out "reasonable searches" for the information requested (section 53(2) of the GIPA Act).
The OIC has provided the Council with a template and further information to assist the Council in writing decisions that comply with the GIPA Act. The DIC has recommended that the Council reissue you with a new decision that better complies with the GIPA Act and, in particular, sets out the searches that the Council has undertaken. The Council has agreed to this recommendation.
This review is now closed."
The OIC also provided its opinion to the Respondent.
The Applicant lodged an application with the Tribunal on 10 August 2011. He gave as the grounds for his application:
"This ongoing saga started about May 2010. After recalcitrance and prevarication by G.S.C I made a FOI application on 4/2/11. I have tried all ways known to force G.S.C to return the trophy and make reparation"
Applicable legislation
The objects of the GIPA Act are set out in section 3(1):
In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
The expression 'Government information' is given a wide meaning by section 4 which provides that it is 'information contained in a record held by an agency.' 'Agency' is also defined in section 4. The expression "record" is defined in clause 10 of schedule 5 to the GIPA Act as follows:
Meaning of "record"
(1) In this Act:
record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.
(2) A reference in this Act to a record includes a reference to a copy of the record.
(3)For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
Certain information relating to the functions of some government agencies is 'excluded information' for the purposes of the GIPA Act. A valid access application cannot be made for excluded information.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5. Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure: section 9.
There is a general public interest in favour of the disclosure of government information: section 12.
An access application is to be determined in accordance with section 58 -
(1) An agency decides an access application for government information by:
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) deciding that the information is already available to the applicant (see section 59), or
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) deciding to refuse to deal with the application (see section 60), or
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
Note. These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
In exercising functions under the Act section 3(2) instructs that:
It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 53 of the GIPA Act sets out the obligations of agencies in locating government information in response to a request:
53 Searches for information held by agency
(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Section 100 of the GIPA Act provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for a review of the decision.
Section 80 sets out a series of decision that are reviewable decisions under the Act. It provides -
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:
(a) a decision that an application is not a valid access application,
(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d) a decision to provide access or to refuse to provide access to information in response to an access application,
(e) a decision that government information is not held by the agency,
(f) a decision that information applied for is already available to the applicant,
(g) a decision to refuse to confirm or deny that information is held by the agency,
(h) a decision to defer the provision of access to information in response to an access application,
(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge,
(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).
The Information Commissioner and any person who could be aggrieved by a decision on review have a right to appear and be heard in review proceedings: section 104.
Section 105 of the GIPA Act provides, with limited exceptions not relevant in this matter, that the burden of establishing that the decision is justified lies on the agency.
Section 63 of the Administrative Decisions Tribunal Act 1997 provides that the Tribunal's function on review is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
The reviewable decision
While it is by no means certain which of the steps taken by the Respondent is the relevant decision for the purposes of these proceedings, it appears to me that the reviewable decision is that contained in the letter dated 23 February 2010 from Ms Southwell to the Applicant. The Respondent appears to be asserting that it does not hold any other government information that falls within the scope of the Applicant's access request.
I do not consider that the Council resolution to refuse to deal with Mr Farrell is a reviewable decision as provided for by section 80(c) of the GIPA Act. Even if it was intended to be a refusal to deal with the Applicant's access application, Ms Southwell has not interpreted it in that way nor has the Council resolution been acted upon in that manner.
This is not a matter in which the Respondent has identified other information as falling within the scope of the access application and made a decision refuse to provide access to information as provided for by section 80(d) of the GIPA Act.
The Respondent has clearly asserted that it does not hold the trophy. However, this cannot amount to a decision that government information is not held by the agency, as provided for by section 80(e) of the GIPA Act.
It is apparent from the definition of "record" set out above that the trophy is not a record. Clearly, the trophy is not 'information contained in a record held by an agency.' Any application for access to the trophy cannot be an application for government information and therefore falls outside the scope of the GIPA Act.
In any event, the Tribunal's jurisdiction is grounded in the Applicant's initial access application. The access application dated 4 February 2010 sought details concerning the sale of the trophy. It did not seek the trophy itself.
Material before the Tribunal
Mr Tom Farrell represented the Applicant. It appears that Mr Farrell is also in dispute with the Respondent: see the Council Resolution referred to above. The Applicant has provided copies of the correspondence between the parties. That correspondence suggests an antagonistic relationship between the parties that has deteriorated throughout the course of these proceedings.
Ms Southwell appeared on behalf of the Respondent. She has lodged a number of documents that go to the Respondent's efforts to locate the trophy. The Respondent relies on Statutory Declarations made by:
- Suzanne Catherine Webber;
- Kellie Ann Gill;
- Nedine Jane Young;
- Elizabeth Valmai Groth; and
- Carmen Louise Southwell.
The OIC attended planning meetings but did not otherwise take an active role in the proceedings.
The Applicant's case
The Applicant's case is unclear. It appears that Mr Farrell is asserting that the search undertaken by the Respondent to locate the trophy is insufficient. However, as the Applicant's initial access application dated 4 February 2010 sought details concerning the sale of the trophy, that argument does not appear to be relevant to the matter before the Tribunal.
In the circumstances, I will consider the searches that were conducted by the Respondent in processing the Applicant's access application.
As noted above, the onus is on the Respondent to establish that the decision is justified.
The Respondent's case
Suzanne Catherine Webber
Ms Webber is a Social Services Manager employed by the Respondent. In her Statutory Declaration she stated:
"I could remember a three piece soup bowl set being sold at the Pumpkin Festival for $40. I remember this because I thought at the time it was a lot of money to pay for it."
Kellie Anne Gill
Ms Gill is a Personal Assistant employed by the Respondent. In her Statutory Declaration she stated that she had helped search in Bingara Council Office cupboards and storage areas but she could not find any item that met the description of a pumpkin trophy.
Nedine Jane Young
Ms Young is an Administration Officer employed by the Respondent. In her Statutory Declaration she stated:
"Sometime between March and November last year Carmen Southwell asked me to look for a pumpkin trophy. Carmen said, words to the effect, "Someone has asked for the return of a pumpkin trophy which they say they donated a few years ago. I don't know what it is but can you look for it down at the Courthouse. Look for anything that looks like a trophy or anything to do with the Pumpkin Festival."
Carmen at this time also asked me, words to the effect, "Can you look again for the photos. Max is after them." Max Eastcott is the General Manager of Gwydir Shire Council.
I can not recall now what these photos were but I do know I never found them.
I remember looking for the photos and anything that resembled a pumpkin trophy at the Neighbourhood Centre, which is also known as the Courthouse.
I did search thoroughly and I looked through the Social Services Manager's office. At the time Tanya Parker was working there as she was doing Suzy Webber's job while she was on leave.
Gail Phillpott is employed by Council as a Librarian. The Bingara Library is also housed at the Neighbourhood Centre.
I said to Gail Phillpott, words to the effect, "I can't find the photos for Max or the pumpkin thing for Carmen. Did you find anything to do with the Pumpkin Festival when you were redoing the library?"
Gail offered to help me look and together we searched the cupboards and storage areas in the Neighbourhood Centre.
Gail said to me, "Do you think this is it?" Gail then passed me an item.
This item was a trophy. On the bottom was a gold plaque which said it had been donated by some business. I can not recall what business it was now. Gail and I were in the Neighbourhood Centre kitchen area and the trophy was sitting on the fireplace.
I remember taking the trophy straight to Carmen Southwell and giving it to her. I can not remember the date I gave the item to Carmen but it was some time between March and November 2010."
Elizabeth Valmai Groth
Ms Groth is a member of the Bingara and District Cancer Action Group. In her Statutory Declaration she stated:
"Some time last year, I am unsure of the date, Carmen Southwell said to me, words to the effect, "Bob Chant donated a pumpkin trophy for the 2006 Pumpkin Festival and he would like it back. Do you know where it could be?" I asked her, "what does it look like?", and she replied, "I don't know, it could be a trophy or a pumpkin. Mr Chant describes it as unique'.
I said to Carmen, "There is a whole heap of stuff in the Cancer Council cupboard including trophies". I said that I would look for it.
... After speaking with Carmen I did not look for a trophy and did not really think about it again until 26th August, 2011.
I went into Council offices on 26th August to sell Daffodil Day merchandise. Carmen came to the counter and asked me, words to the effect, "Have you ever had a chance to look for Bob's pumpkin trophy? He is still looking for it and would like it returned".
I said I had never looked for it but that I could take Carmen to have a look in the Cancer Council cupboard. Shortly after this conversation Carmen rang me and we arranged to have a look for the trophy.
On 1st September, 2011 Carmen and I looked through the cupboard and we found a box containing crockery, trophies and a pumpkin ceramic bowl with a lid, approximately 11cm high having a diameter of 9cm. ...
Carmen has since told me, words to the effect, "I showed Bob the bowl and it isn't his trophy".
I do not know of any other trophies other than what was in the box in the Cancer Council cupboard. I believe Carmen showed Bob all of the items in the box. ..."
Carmen Louise Southwell
Ms Southwell is the Publicity Officer employed by the Respondent. In her Statutory Declaration she outlined the searches undertaken and discussions she had in relation to the location of the trophy and information about the sale. She stated:
...
On 17th June 2010 I rang and spoke to Suzy Webber. Suzy was still on leave.
I said to Suzy, to the effect, "Bob has requested a pumpkin trophy be returned to him. He says he donated the trophy for the last Pumpkin Festival. Do you know about it, or where it could be? ...
I said to Suzy to the effect, "Bob also asked what happened to the money from the Festival. He said in a letter people are asking him what happened to the money raised."
Suzy replied to the effect, "The cancer group handed over the festival to us for the Youth Centre. They didn't run the last festival. Annie organised it."
I said to Suzy to the effect, "I have spoken to Annie and she can't remember anything about a pumpkin trophy. I remember Bob saying to me once that he wanted his soup dish back. ...
Suzy said to the effect, "it could be, there was a soup tureen set sold at the festival, remember it because someone paid $40 for it. "
...
Some time in December I saw Suzy Webber down in the back offices at Council. ... I asked her, in passing, to the effect, "at the last Pumpkin Festival who auctioned off the items donated? Bob is still after his pumpkin trophy."
Suzy replied to the effect, "There was no auctioneer; stuff just got sold off the table." I said to the effect, "I thought you said it was auctioned."
Suzy said to the effect, "there was an auction for kids with cancer but not the Pumpkin Festival."
I then said goodbye and left.
...
On 4th February 2011 Council received a GIPA Application from Mr Chant. ...
I searched again though the office, depot and storage areas. This time I searched the Courthouse and Roxy Theatre kitchen areas. I did not find any item that was a soup tureen or bowl or server.
In the cupboard in my office I have a cardboard box filled with documents relating to Mr Chant and Tom Farrell. I went through these documents and found my file note. ...
As Mr Chant had made a formal application I thought I should include my file note in my letter to Mr Chant. ...
In my letter I acknowledged I had been mistaken that the item had been auctioned and I wrote that the item had been displayed on a table and sold. I described the item as a soup tureen as Tom Farrell had told me.
I acknowledge that my file note states 'white soup tureen' but in Council's letter I referred to the item as a soup tureen. ...
Again I did not really think about the matter until Council received a letter from the Administrative Decisions Tribunal dated 17th August 2011.
Again I got out the cardboard box of documents involving matters with Mr Chant and Tom Farrell and looked through them. Whenever I had to search for a document or item for my work I would always also look for the 'pumpkin trophy'.
...
I have searched during the month of October 2011 the Gwydir Shire Council Bingara office cupboards, the depot, the Roxy Theatre and Neighbourhood Centre and have not found a soup tureen that looks like a pumpkin.
I believe I have made a thorough search."
Consideration
In order to determine this matter it is necessary that I form a view in regard to the issue of whether the Respondent holds any further 'government information' that falls within the scope of the Applicant's access request and if so, whether the Applicant has been refused access to it.
In deciding whether a sufficient search has been carried out, the ultimate issue for the Tribunal is whether the Respondent's conclusion is sound i.e. that it does not hold the information sought by the Applicant. For a recent discussion in regard to relevant considerations in regard to the question of sufficiency of search see Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5.
As noted above, the Applicant's access request sought access to information concerning the sale of the trophy. In my view, the Respondent has given the Applicant all the information that it holds concerning the sale of the trophy. I am satisfied that the Respondent has taken all reasonable steps to locate any further information and those efforts have not succeeded in locating any information concerning the sale of the trophy that has not already been provided to the Applicant.
I have indicated above that this matter does not concern a request by the Applicant for access to the trophy itself. However, I note that if that had been the case, it is my view that the efforts by the Respondent to locate the trophy have been very thorough. On the basis of the evidence before me, it is reasonable to assume that the Respondent no longer holds the trophy.
The evidence suggests that the trophy was sold at a Pumpkin Festival held in 2006 for an amount of $40. As the trophy was not sold at auction, there was no licensed auctioneer involved in the sale. The purchaser's details are not available.
What constitutes a sufficient search will vary with the circumstances. In the circumstances of this matter, I am satisfied that the Respondent's search has been adequate. No purpose would be served by requiring the Respondent to do any more searches. The decision under review is therefore affirmed.
Order
The decision under review is affirmed.
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Decision last updated: 10 February 2012
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