CJU v Northern Sydney Local Health District

[2018] NSWCATAD 223

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CJU v Northern Sydney Local Health District [2018] NSWCATAD 223
Hearing dates:	15 August 2018
Date of orders:	24 September 2018
Decision date:	24 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R L Hamilton S.C, Senior Member
Decision:	The respondent’s decision to refuse to deal with the access application is affirmed.
Catchwords:	GOVERNMENT INFORMATION PUBLIC ACCESS-refusal to deal with access application-substantial and unreasonable diversion of resources-application for order to restrain further access applications without leave
Legislation Cited:	Government Information Public Access Act 2009 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998
Cases Cited:	Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 Colefax v Department of Education and Communities No 2 [2013] NSWADT 130,
Category:	Principal judgment
Parties:	CJU (Applicant) Northern Sydney Local Health District (Respondent)
Representation:	Solicitors: CJU (Applicant in person) Bartier Perry (Respondent)
File Number(s):	2018/00046389
Publication restriction:	Nil

DECISION

1. This matter concerns an access application made under the Government Information (Public Access) (GIPA) Act 2009. The applicant made an application dated 1 November 2017 which was received 6 November 2017 by the respondent for access to a very wide range of material.

2. The respondent decided to refuse to deal with the application pursuant to sec 60(1)(a) GIPA Act, which permits an agency to refuse to deal with an application where this would require an unreasonable and substantial diversion of the agency’s resources. The Tribunal has jurisdiction to review the agency’s decision where a person is aggrieved (ss 80(c) and 100 GIPA Act; and ss 7,9 and 4 Administrative Decisions Review Act 1997).

3. The application was in the following words adjusted to keep the identity of individuals confidential.

“All the records produced, or exchanged, sent or received in the Northern Sydney Local Health Districts [sic] by/with current or former employees related to [CJU]. With the NSW ministry of health [sic], Safework NSW, or others including but not limited to all communications verbally, written, notes, phone calls, emails, letters, briefings, files. File notes, information INCLUDING BUT NOT LIMITED TO[sic] Anyone in the NSW Ministry of health employees [sic] including but not limited to [named individual 1], [named individual 2], [named individual 3], Director of Compliance, Legal… privacy officers… etc. (Detailed description attached AND IT forms of part of the application A, B, C). Page 4 is part of the application.”

4. On page 4 is what was called a “detailed part of what is required” by the applicant and added further names to the list of named individuals above, and referred to other sections within the respondent’s office but it does not assist particularly to quote the details.

5. On 7 November 2017 Mrs C Parker, the Corporate Information Manager, Right to Information Manager and Privacy Officer of the respondent wrote to the applicant acknowledging receipt of the application and attaching an Information and Privacy Commission of NSW Fact Sheet dated June 2014 outlining the applicant’s review rights under the GIPA Act.

6. On 20 November 2017 Mrs Parker wrote again to the applicant inviting the applicant to amend the scope of her application by referring to specific staff members, and specifying a timeframe that a document search could be applied to. Mrs Parker indicated that the application was too broad to process in its current form as lodged. Mrs Parker drew the applicant’s attention to the provisions of ss60 and 61 of the GIPA Act.

7. By email dated 28 November 2017 the applicant stated that her request for information under the GIPA Act “… stands as it was sent ORIGINALLY…” and confirmed this in other emails dated 3 December 2017 and 10 December 2017.

8. By letter dated 12 December 2017 Mrs Parker advised the applicant of her decision to refuse to deal with the access application as this would require an unreasonable and substantial diversion of the agency’s resources, and attached an Information and Privacy Commission of NSW Fact Sheet dated December 2016 explaining the concept of what would be a substantial and unreasonable diversion of the agency’s resources.

9. Mrs Parker also attached a formal Notice of Decision invoking s60(1)(a) of the GIPA Act and her reasons.

10. The notice also advised the applicant of her review rights, including internal review, external review by the Information Commissioner and external review by NCAT and enclosed another copy of the Information and Privacy Commission Fact Sheet on review rights under the GIPA Act mentioned above.

11. The applicant confirmed at the hearing that her GIPA application for access received by the agency on 6 November 2017 and the decision of Mrs Parker for the agency dated 12 December 2017 were the relevant subjects of the Tribunal’s review.

12. The applicant filed with NCAT an application to review the agency’s decision on 12 January 2018.

13. Although she said in the application to NCAT that the decision was made after the agency conducted an internal review, the evidence does not disclose any formal or substantive application by the applicant for internal review by the agency.

14. The applicant attached as part of her submissions copies of emails which she asserted amounted to requests for internal review.

15. The first of these emails dated 12 January 2018 was a very brief email seeking a response with the subject line “NSLHD To realise [sic] information under GIPA Chief Executive. review response”. (Attachment 6 to applicant’s submissions)

16. The second email dated 29 January 2018 was a short (8 line) email seeking a response and complaining (attachment 7 to the applicant’s submissions) with the subject line “NSLHD To realise [sic] information under GIPA Chief Executive. Notice to produce all [named individual 1] communication with seniors in NSLHD.”

17. In the course of the hearing the applicant stated for the first time, that she was only seeking access to information referred to in the subject line of her email dated 29 January 2018.

18. This claim took the respondent (and the tribunal) by complete surprise.

19. The applicant was asked whether that meant that she was abandoning her claim for the rest of the information in her original application the subject of the proceedings. She answered in the affirmative, and when the proposition was repeated she continued to agree with it.

20. In my view it was not appropriate for the applicant to change her position so radically without notice to the respondent. It was particularly inappropriate in a context where:

1. she had been given an opportunity to limit her request for information by the respondent and had chosen not to do so; and

2. there had been a mediation appointed by NCAT and the applicant had failed to appear.

21. The applicant was reminded she had had these opportunities to limit her information request but had nothing to explain her last minute change of direction.

22. The applicant later in the hearing attempted to recover slightly by pointing the tribunal to an email of hers dated 21 March 2018 (annexure CP8 to affidavit of Mrs C Parker of 13 June 2018) with the same subject line as her email of 29 January 2018, where after making various intemperate allegations, she set out search parameters for the respondent limiting the time period and referring to only 9 named individuals. The tribunal was advised by the respondent that this was sent to it the day after the appointed mediation at which the applicant failed to appear. I cannot put any store on this. The applicant agreed at the outset that the decision under review was that of the 12th of December 2017. It was far too late at the hearing to try to amend the application by reference to correspondence of 21 March 2018, or by reference to an afterthought at the hearing. The respondent had to be put clearly on notice well in advance of the case it had to meet.

23. The respondent further submitted that the applicant had abused the process of the tribunal. Looking at the seemingly unfounded, scandalous and intemperate language employed by the applicant in the correspondence and submissions there is clearly a prima facie case as submitted by the respondent. However I do not decide the question as it would require a deep dive into the history of the matter which does not appear to be presently justified.

24. In these circumstances, of a radical change of position in the middle of a hearing without prior notice, I could regard the applicant as having gone beyond merely amending her application and as having constructively withdrawn her application for review of the decision of 12 December 2017. However on reflection it seems to be a better approach to review the agency’s decision under challenge on its merits and bring some finality to the matter.

25. I did consider whether it might be appropriate to remit the matter to the respondent for reconsideration as if the only information requested was that which the applicant said at the hearing she was seeking. I do not consider it would be appropriate in the circumstances. In the first place it is unclear precisely what the applicant is seeking. She now says all she is seeking is access to the information set out in the subject line of her email of 29 January 2018 (quoted at para 16 above) which refers to communications (assumed but not stated to be about her) from [named individual 1] to “seniors in NSLHD”. The reference to “seniors” is too general, for example; and the relevant time period is assumed but not stated to be some time in 2013 to the end of 2017 (by reference to her email of 21 March 2018).

26. In my view it would place an undue burden on the respondent to try to decide exactly what the applicant wants. Although remittal might seem quick and cheap, I do not consider it would be just (see sec 36 Civil and Administrative Tribunal (CAT) Act 2013). I would be guessing if I tried to reformulate her access application by reference to her statement at the hearing and the documents before me. Although the Tribunal can assist unrepresented litigants to present their case, it should not do their drafting for them. There needs to be tolerable clarity about the real issues in dispute for the Tribunal to exercise its mandate to resolve them, and in my view this would be best done by the applicant sitting down and clearly and concisely expressing with precision what she is seeking without resorting to accusations and irrelevancies.

27. To return to the substantive question, the agency bears the burden of justifying its refusal decision (sec 105 GIPA Act). I heard evidence from Mrs Parker that the respondent currently has over 10,000 staff; that there were a considerable number of former staff; that a search back to 2009 (which, although not stated, the applicant’s original application involved as this is when she started in the employment of the respondent) required a search of a legacy email archive; that Mrs Parker expected, based on past experiences but without testing in this case, that a search of the applicant’s names and initials (which are often used in internal communications) would have thrown up thousands (possibly hundreds of thousands) of results each of which would need to be reviewed; that she had received advice from the information and communication technology (ICT) department of the respondent (copy of email annexure CP9 to her affidavit) that the GIPA application was too broad and that ICT would need more specific details; and that the expected time to process the application from start to finish would be well over 80 hours.

28. The applicant cross-examined Mrs Parker but I have no reason to doubt her evidence. I feel very comfortably satisfied that the respondent’s decision to refuse to deal with the application was justified under s 60(1)(a) GIPA Act, because it would require an unreasonable and substantial diversion of the agency’s resources. In Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 the Administrative Decisions Tribunal set out a list of considerations to be taken into account in deciding a case under a cognate provision of the former Freedom of Information Act 1989.

29. This approach was broadly endorsed in the context of GIPA Act access applications in Colefax v Department of Education and Communities No 2 [2013] NSWADT 130, though the Judicial Member hearing it noted at pars 21 & 22:

21. A decision with respect to whether an access application would require both an unreasonable and a substantial diversion of an agency's resources requires a decision maker to exercise discretion in reaching a conclusion. In this regard that the GIPA Act contains a general presumption in favour of disclosure of government information (s 5) and gives members of the public "an enforceable right to access government information." Importantly s 4(2) instructs -

(2) 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.

That instruction is relevant to the exercise of the discretion in determining whether or not an application will constitute an unreasonable and substantial diversion of resources. The Freedom of Information Act 1989 did not contain a similar instruction.

22.This is an important distinction between the former and the current access to information regimes. It is a distinction which means that decision makers should be cautious when considering the applicability of decisions relating to the Freedom of Information regime, in the context of the GIPA Act.

30. The respondent has referred to two applications made by this applicant to the respondent for similar personal information under the Privacy and Personal Information Protection (PIPP) Act 1998. In Colefax the Judicial Member went on:

43. While the PPIP Act does not affect the operation of the GIPA Act, the fact agencies are unable to refuse to deal with requests for personal information under the PPIP Act on the basis of an unreasonable and substantial diversion of resources, points to the importance of the distinction between applications seeking access to government information that includes their personal information, and those seeking access to other government information. That distinction in my view, is a relevant factor when deciding whether or not an access request is unreasonable.

31. I have taken into account the applicant’s very late attempt to limit the information sought, but for the reasons set out above I consider it is not appropriate to permit the applicant, without notice, to change her position so drastically in the middle of the hearing.

32. It would overstate the accuracy of the applicant’s original request to call it a shotgun approach. If a fishing metaphor were to be used, it would be like ‘fishing’ with dynamite. It was so general as to be almost incomprehensible. It purported to cover undocumented communications (e.g. “verbal communications” and “telephone calls”), and named numerous individuals and departments without appearing to attend to accuracy or relevance (e.g. “NSW ministry of health, Safework NSW, or others” (underlining added) and “Director of Compliance, Legal…privacy officers…etc”)

33. The importance of the information requested to the applicant was not demonstrated and, even giving the applicant the benefit of the doubt, the impression is that it was designed to tie up the resources of the agency due to some lingering bitterness resulting from termination of employment. Nor was the applicant able to show the public interest in giving access to the information other than making general submissions about the desirability of public access to government information.

34. Mrs Parker’s evidence was that she was effectively the only person at the respondent dedicated to handling GIPA Act requests as principal point of contact. With its staff of approximately 10,000 this limited the attention she could give to this application while dealing with numerous other applications, a number of which seemed to involve ‘life and death’ considerations.

35. I accept Mrs Parker’s evidence that responding to the original application would likely involve examination of thousands of records, scores of hours (more than 80) and significant salary costs. I do not consider Mrs Parker to have exaggerated the effort which would have been involved.

36. I consider that the agency acted reasonably throughout and followed the procedures set out in s 60 GIPA Act, particularly when it reached out (as requires) to the applicant to explain that the original application was too broad and invited her to reduce its scope. The applicant’s correspondence demonstrates a clearly non cooperative attitude.

37. The respondent submitted that applicant appears to have made other GIPA Act applications based around the same set of facts concerning termination of her employment, and the submission was not really disputed by the applicant. Due to confidentiality requirements of the Tribunal the respondent did not have details and had attempted to obtain them from the applicant by using a Notice to Produce which was ignored by the applicant. My attention was also drawn to decisions of the Tribunal involving the applicant and the respondent in matters under the Privacy and Personal Information Protection (PIPP) Act 1998 and to an application in another place by the applicant concerning her employment which was dismissed with unfavourable remarks about her case made by the member who heard the matter. The relevance I see in these other matters is that the applicant appears to be bent on making life difficult and time consuming for the respondent in her quest to seek what she considers to be justice (although what that entails is unclear).

38. On the evidence and arguments before me it appears that the applicant’s access application was so broadly targeted, and its relevance so shrouded in mystery, that it could be said to be virtually without merit. In my view the respondent’s decision to refuse to deal with the application should be affirmed. If the applicant wishes to press on with the latest version of her request for information, she needs to redraft and resubmit her request setting out with clarity and brevity exactly what information she seeks, identifying each entity and specifying a date range.

39. There were two other matters raised at the hearing upon which I should comment.

40. The applicant alleged that the respondent had breached s71 of the Civil & Administrative Tribunal Act 2013. The section provides:

A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both

41. I refused to hear her on it as I considered it is not a matter that can be raised in an application for a review of a GIPA decision.

42. The respondent requested that I consider making an order under s110 of the GIPA Act restraining the applicant from making any further access application without first obtaining NCAT approval. I needed to be satisfied that the applicant had made at least three applications to one or more agencies in the previous 2 years that lacked merit.

43. The respondent had served a Notice to Produce documents relevant to other GIPA applications by the applicant on the applicant, and called on that notice at the hearing. The applicant did not produce any documents and offered lame excuses. The respondent referred to NCAT matters where the same three letter anonymous identifier was used for the applicant’s name. The use of three letter identifiers makes it difficult for an agency to be certain that the applicant is the same person in each case, although it may be that the same three letters are used in all confidential applications by the same applicant. There was no evidence of this and it seems to me that such a practice (if it exists) cannot be the subject of judicial notice

41. On the state of the evidence before me I was unconvinced that I could make a restraining order under s110 GIPA Act. I felt that I needed to be satisfied of the identity of the applicant in three access applications within the last 2 years and that each one of them lacked merit.

42. I was also of the view that in the present case it may be more convenient to deal with a motion for a restraint order under s110 GIPA Act as a separate question.

43. No submissions were made on the question of costs, so I make no costs order at the moment. The parties have liberty to file written submissions on the costs issue within 21 days of the publication of these reasons. Any costs application should include submissions as to whether the Tribunal should hear a costs application ‘on the papers’: Civil and Administrative Tribunal Act 2013, s 50(3).

ORDER

1. The respondent’s decision to refuse to deal with the access application is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 September 2018