CLT v Secretary, Department of Education

[2024] NSWCATAD 50

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CLT v Secretary, Department of Education [2024] NSWCATAD 50

Hearing dates:

24 August 2023

Date of orders:

26 February 2024

Decision date:

26 February 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

1. The agency’s decision that it does not hold any further information that falls within the scope of the applicant’s access request is affirmed as the correct and preferable decision.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the applicant is prohibited.

Catchwords:

ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) - whether information is held by the agency

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 55, 63

Government Information (Public Access) Act 2009 (NSW), ss 3, 5, 9, 53, 58, 80, 100, 101, 105, Schedule 4

Government Sector Employment Act 2013 (NSW), ss 3, 23, Schedule 1

Cases Cited:

Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5

CLT v Secretary, Department of Education [2022] NSWCATAD 34

DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92

Gates v Port Macquarie-Hastings Council [2022] NSWCATAD 193

Klaric v Commissioner for Police [2020] NSWCATAP 153

MJ v Department of Education and Communities [2014] NSWCATAD 12

Saggers v Environment Protection Authority [2013] NSWADT 109

Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286

Watson v NSW Trustee and Guardian (No. 2) [2016] NSWCATAD 19

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Ugur v Commissioner of Police [2022] NSWCATAD 396

Texts Cited:

Nil

Category:

Principal judgment

Parties:

CLT (Applicant)
Secretary, Department of Education (Respondent)

Representation:

I Jones (Agent for Applicant)
J Pendergast (Right to Access) (Respondent)

File Number(s):

2023/00032134

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the applicant is prohibited.

Note: The name of a person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

REASONS FOR DECISION

Introduction

1. This is an application by CLT (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for review of a decision of the Secretary, Department of Education (the agency) under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) in relation to an access application she made on 19 December 2022 which is designated a reviewable decision by s 100 of that Act. By that decision the delegate of the agency determined to provide access to some further government information that had been identified as responsive to the access application, and otherwise that the agency did not hold further information within its scope. It is this second aspect of the delegate’s determination that the applicant continues to dispute. She contends that there are facts and issues which indicate that the agency has failed to identify all of the information it holds that is responsive to her access request. This application was made to the Tribunal on 31 January 2023 (the application).

2. For the reasons set out following I have affirmed the agency’s decision as the correct and preferable decision. As at the date of the hearing, I am satisfied that the agency has discharged its onus of establishing that reasonable searches have been conducted for information that falls within the scope of the applicant’s access application, such that there is an unlikelihood that any further information within its scope is held. While there are facts and issues which suggest that other information may have existed at a point in time, this is not information that the agency and its staff were obliged to retain as an agency record. There are insufficient grounds to conclude that the agency has retained this information such that it is capable of being identified and disclosed to the applicant.

Non-publication order

3. At paragraph 103 of her submissions of 10 July 2023 the applicant applies for a non-publication order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that would prohibit the disclosure of her name in relation to the proceedings and assign her a pseudonym. The agency has made no submission opposing that application.

4. The chapeau of s 64(1) of the NCAT Act provides that the Tribunal has discretion to make such an order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. This is obviously a broad discretion, but one which nevertheless must be exercised judicially, having regard to established principle.

5. In this respect the relevant considerations in the exercise of this discretion were articulated in detail in DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 at [6] to [11]. In short summary, the Tribunal is to have regard to the presumption in favour of open justice and the reality that personal embarrassment may be a necessary incident of that controlling value. Nevertheless, this does not prevent the Tribunal from making a non-publication order in the circumstances of a particular case so as to avoid a person associated with the proceedings being embarrassed. There must be good grounds for the making of a non-publication order on the material before the Tribunal. Where such an order is sought by a party, they bear a practical onus of establishing those grounds. The Tribunal is to have regard to the breadth of discretion conferred on it to make non-publication orders, the range of orders that may be made, and the breadth of purpose that may be served by such an order, which may relate to the public or a private interest.

6. In this case the applicant submits that the disclosure of her name in connection with the subject matter of her access request will disclose that she is a person with a psychological injury who the agency is considering for involuntary medical retirement. She submits that this constitutes sensitive personal information. I accept that this is the case. An order prohibiting the disclosure of the name of a party and the assignment of a pseudonym, while undoubtedly a limitation, is a relatively narrow infraction of the principle of open justice. Such an order in this case would serve both a public and private interest of avoiding the disclosure of sensitive personal information. For these reasons I am satisfied that such an order should be made.

Procedural history

7. The application came before the Tribunal, differently constituted, for a Case Conference on 27 February 2023. For reasons which were apparently given orally, the Tribunal determined to remit the delegate’s original decision to the agency for reconsideration. The agency was directed to notify the Tribunal and the applicant whether, upon reconsideration, the original decision was affirmed, varied, or set aside, if there was a new decision, and to provide reasons for its decision by 24 March 2023. The applicant was directed to notify the Tribunal and the agency if she withdrew or wished to proceed with her administrative review application by 21 April 2023. The review was adjourned to a further Case Conference on 9 May 2023.

8. The Tribunal also made the following ‘note’ in relation to those procedural directions:

The decision the subject of review is the decision that no records concerning medical retirement are held by the Health and Safety Directorate, Ruythe Dufty or Kerry Hine (see page 3 of the decision).

9. The agency made a ‘new decision’ in relation to the applicant’s access application on 23 March 2023 the terms of which are outlined following. The applicant was not satisfied with that decision and notified the agency and the Tribunal that she wished to continue with her administrative review application with respect to the new decision.

10. The application came before the Tribunal, differently constituted, for a Case Conference on 9 May 2023. The dispute as it stood at that time could not be resolved at the Case Conference. The Tribunal made procedural directions for the filing and exchange of the documentary evidence and submissions the parties intended to rely upon at the review hearing and listed the application for hearing on 24 August 2023. The applicant was granted leave to be represented in the proceedings by a non-legally qualified agent, Mr Ian Jones.

Material considered and hearing

11. In reaching my determination I have considered the following material:

Applicant

i.   Administrative review application filed 31 January 2023 and Annexure (being the agency’s original decision dated 27 January 2023),

ii.   Documents filed on 1 February 2023 under cover of letter dated 1 February 2023,

iii.   “Response to orders made on 27 February 2023 …” filed on 18 April 2023,

iv.   Submissions and annexures filed on 10 July 2023,

Agency

v.   Original decision dated 27 January 2023 together with copies of information released,

vi.   New decision filed on 29 March 2023 under cover of letter dated 23 March 2023, together with copies of the information released,

vii.   Response to order dated 9 May 2023 …’ and annexures, including submissions, filed on 27 July 2023,

viii.   Submissions dated 9 June 2023 and annexures filed on 24 August 2023 (said to have been first filed on or about 9 June 2023, but not on the Tribunal’s file as having been received). This bundle includes:

i.   a Statement by Meghanne Wellard, Executive Director Rural North School Performance Directorate dated 6 June 2023 (Tab F), and

ii.   a Statement by Joanne Frearson, Director of Workplace Health Management, dated 8 June 2023 (Tab G).

12. Mr Ian Jones attended the hearing on behalf of the applicant. Ms Jenni Pendergast, Manager, Right to Access, attended the hearing on behalf of the agency. The parties had the opportunity to present their respective cases, to ask questions of each other and to make final submissions to the Tribunal.

Material facts

13. At the material time for this application the applicant was employed by the agency in the role of an outreach early intervention teacher. At that time, she had been employed by the agency for a period of 26 years. She was on extended leave from her position due to a workplace psychological injury and was subject to action by the agency that may have resulted in her involuntary medical retirement. She contends that this action was the culmination of protracted misconduct towards her by some staff within the agency. Her stated reason for her access application was to obtain information that would reveal this misconduct to enable her to resist involuntary medical retirement. Her central contention in submissions is that various staff of the agency are motivated to conceal and withhold information from her (particularly internal communications) so as not to reveal their misconduct.

14. The applicant has made several access requests to the agency for information related to the management of her employment and the circumstances in which she acquired her workplace injury. Agency decisions made in response to these access requests have been the subject of administrative review by NCAT in separate proceedings. There is a degree of overlap in the subject matter of the present access application with previous access applications.

15. The respondent is an ‘agency’ to which the GIPA Act applies. In this respect it is ‘Public Service Agency’ within the meaning of s 4 and Schedule 4, clause 1 of the GIPA Act, and s 3 of the Government Sector Employment Act 2013 (NSW) (GSE Act), being a ‘Department’ specified in Schedule 1, Part 1 of the GSE Act. The ‘Secretary’ is designated the head of the Department by s 23 of the GSE Act.

16. By an access application dated 14 December 2023, which was received by the agency on 16 December 2023, the applicant sought access to information described as follows:

All documentation – search terms ‘medical retirement’ and other documents relating to medical retirement from the staff Work Health and Safety Directorate, + Ruythe Dufty (Director) + Meghanne Wellard (Director) and + Leonie Byrne (Principal) + Kerry Hine (Moree office).

17. The date range specified in relation to this application was 1 January 2022 to 19 December 2022 ‘or date of receipt of this application whichever is the latest’.

18. The delegate of the agency notified the applicant that she had determined that the access application was valid on 19 January 2023. By that notification the delegate also advised the applicant that there would be a permitted delay in the processing of her application because it partly sought information potentially held by the Principal of a school and the decision period for her application encompassed a school holiday period.

19. In response to that advice, also on 19 January 2023, the applicant notified the delegate by email that she amended her application to exclude information potentially held by Ms Byrne, Principal, to ‘speed up the process’. The agency accepted that amendment. As a consequence of this amendment the agency amended the temporal range of the access request to 1 January 2022 to 19 December 2022. Both the original and new decision are predicated on that temporal range.

20. On 27 January 2023 the delegate of the agency determined the amended application by deciding to release in full the information it held that had been identified as falling within the scope of the application, and otherwise that the information sought was not held by the agency. In this respect, in her reasons for decision the delegate stated as follows:

…

Relevant information

A total of 46 pages have been received from Meghanne Wellard, Executive Director, School Performance, Rural North School Performance Directorate. These records have been identified as relevant to your access application.

Decision

…

I have today decided to release in full the information held by the Department relevant to your application, under s 58(1)(a) of the GIPA Act.

I have also decided that part of the information you have requested is not held by the department, under s 58(1)(b).

…

Information not held

You have also requested access to records from the following: Health and Safety Directorate, Ruythe Dufty and Kerry Hine. On 17 January 2023, 20 December 2022 and 19 December 2022 respectively, the relevant officers advised that they do not hold any records within the scope of your request.

As such, I am satisfied that no further records within the scope of your application are held by the department.

21. Under the heading “Search for records” the delegate states the following in relation to the searches that were undertaken to identify information held by the agency that was responsive to the applicant’s access request:

Search for records

Under section 53 of the GIPA Act the department must undertake 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, using the most efficient means reasonably available to the department.

The department keeps records electronically (in shared drives and an Electronic Documents Management System), in physical files (hard copy) and in individuals’ email accounts. All relevant systems were searched by the area holding the information as outlined below.

I consider that reasonable searches have been undertaken in response to your application in accordance with s 53 of the GIPA Act. Based on the information available to me, I am satisfied that all records that exist relevant to your request have been identified and provided to me for consideration.

22. As a result of the Tribunal’s remittal of the access application for further consideration the agency undertook further searches for information that fell within its scope.

23. In her notice of the new decision, the delegate of agency states that the agency’s decision insofar as the access application sought information potentially held by Ruythe Dufty and Kerry Hine remained the same ‘because neither of them hold any records relating to your medical retirement. No records held’. In support of that assertion the delegate attached at Tabs A and B of the decision GIPA Search Officer declarations.

24. The GIPA Search Officer Declaration Form completed by Ruythe Dufty, Director, School Performance, is signed and dated 20 December 2022. Section 2 of the Declaration records the “Record of Search”. It records that the “systems searched” were the ‘TRIM/HP Records Manager’, ‘Local computer drives and other electronic records systems’ and ‘Emails’ using the search terms “CLT” and “medical retirement”. Ms Dufty states that the systems searched did not include hardcopy files because ‘nil hardcopy files [are] in the office’ or databases because ‘nil databases used’. Section 4 of the Declaration records the time taken by searches. In that section Ms Dufty records that it took 10 minutes to search TRIM/HP records and local computer drives and 5 minutes to search emails. At section 5 of the Declaration Ms Dufty declares that no records are held by the business unit, being the ‘Department of Education Tamworth Office’.

25. The GIPA Search Officer Declaration Form completed by Kerry Hine, Customer Services and Administration Manager, is incomplete. Only section 5 ‘Search Officer Declaration’ is provided. The Declaration is signed but not dated. Ms Hine declares that no records are held by the business unit, being the ‘Moree Education Office’. Because the form is incomplete it does not contain any record of the systems searched, search methodology, or search time taken.

26. The notice of new decision also advises the applicant that further searches were undertaken by staff within the Health Safety and Wellbeing Directorate of the agency, which are set out at pages 2 to 6 of the decision. In summary, it is stated that:

i.   Lauren O’Keefe, who is not identified by role, conducted unspecified searches using the terms ‘CLT’, and ‘medical retirement’, ‘submission and ‘case’ in association ‘CLT’. No records were found, and Ms O’Keefe advised that she had ‘not managed CLT’s claims since 2019 so [she did] not have any further information on this claim apart from recent requests for information’,

ii.   Kavita Purohit, Manager, Health & Wellbeing, Workplace Health Management Unit conducted searches in ‘TRIM/HP Records Manager’, ‘local computer drives and other electronic records systems’, ‘databases’, ‘emails’ and of ‘other’ unspecified records using the search terms ‘CLT’ and ‘medical retirement’, ‘submission’ and ‘case’ in association with ‘CLT’ and determined that no records were held. Hardcopy files were marked not applicable.

iii.   Mohamad Houda, Leader, Health and Wellbeing, Health, Safety and Staff Wellbeing Directorate conducted searches of systems equivalent to those searched by Ms Purohit, but including hardcopy files using the same search terms she did and found no records responsive to these searches. (I note that Mr Houda did not conduct new searches in relation to the remitted application. The agency relies upon his January 2022 Search Officer Declaration).

iv.   Sarah Tibos, Health and Wellbeing Advisor, Workplace Health Management conducted system searches equivalent to those searched by Mr Houda using the search terms ‘CLT’, ‘medical retirement’ and ‘case’ and identified records responsive to these searches.

v.   Mary Cutugno, Leader, Health and Wellbeing conducted system searches equivalent to those conducted by Mr Houda, using the same search terms he did and found no records responsive to these searches.

vi.   Jason Ji, A/Senior Complaints Resolution Officer conducted system searches equivalent to those conducted by Mr Houda, using the same search terms he did and found records responsive to these searches.

27. The additional records identified by Ms Tibos amounted to 172 pages, and those identified by Mr Ji amounted to another 8 pages. The delegate determined pursuant to s 58(1)(a) of the Act to release this information in full to the applicant.

27. Otherwise, the delegate determined pursuant to s 58(1)(b) of the Act that no further information responsive to the applicant’s access application was held by the agency.

28. In her Statement dated 6 June 2023, Ms Meghanne Wellard states as follows:

1. I am the current Executive Director Rural North School Performance Directorate for the NSW Department of Education (the Department).

…

1. On 19 December 2022 I received a Search Officer request (SOR) for information relating to CLT and her medical retirement …

2. I provided all the information I held for this application and sent it to Right to Access on 21 December 2022. I hold no further records …

3. Kerry Hine was a Customer Services and Administration Manager who had no connection with CLT’s medical retirement. She declared that she held no records. I have no reason to believe that she would hold any records relating to this application.

4. Ruythe Dufty is a Director of School Performance, Rural North. She does not deal with medical retirements as these types of matters are dealt with by Health Safety and Staff Wellbeing. Ms Dufty declared that she held no records and I have no reason to believe that she would hold any records related to this application.

5. In my view, the department has undertaken reasonable searches for information that falls within the scope of this application, and to my knowledge, no further records are held relating to this application.

   30. In her Statement dated 8 June 2023, Ms Joanne Frearson states as follows:

6. I am the current Director Workplace Health Management of the NSW Department of Education (the Department). My business unit is part of the Department’s Health Safety and Staff Wellbeing Directorate and is responsible for health and safety matters for all staff employed by the Department.

…

1. Searches were initially undertaken in January 2023 by Workplace Health Management staff and no records relevant to the application were found. A copy of the Search Officer declaration signed by Mohamad Houda is attached …

2. Workplace Health Management staff conducting this search had obtained CLT’s electronic case, downloaded by the Health Safety and Staff Wellbeing Directorates Systems, Data and Reporting team. A key word search of the downloaded case did not identify documents relevant to the application. It is apparent on review that not all documents associated to the case record had been immediately visible. Additionally, some staff involved in CLT’s case were on leave at the time of the application and did not undertake searches.

3. A new decision was made on 23 March 2023 which varied the original decision. 180 pages were released under this decision.

4. Several officers, named by CLT in her GIPA application … undertook searches. A copy of the Search Officer Declarations is attached …

5. CLT stated, on page 3 of her response, that GIPA records from Icare show that Sarah Tibos was in contact with Allianz, however there is no evidence of this in the records.

6. Information was provided by Sarah Tibos relating to Icare, however, the records were not within the requested timeframe, and therefore, were out of scope.

7. Jason Ji has responded to search for documents on numerous occasions. In his final search officer declaration he stated he holds no further records.

8. After searching through all relevant systems, I found one further draft record, which was found to be out of scope at first instance. I believe that this record is within the scope of this application. A copy of this document is attached.

9. The search officers provided search officer declarations for the third round of searches. I have reviewed the declarations and have found that reasonable searches have been undertaken for this information. A copy of the search officer declarations is attached…

10. In my view, the department has undertaken reasonable searches for information that falls within the scope of this application, and to my knowledge, no further records are held relating to this application.

    31. The agency relies upon ‘Advice 21 Email’ produced by its Records Management Unit. In broad outline the document sets out the agency’s policy and procedures for the classification of emails and the retention of particular types of emails. The following sections of that procedure are presently relevant:

2.2   Types of Email

Email created or received by the Department of Education and Communities can generally be divided into three different types:

● Business email – email which relates to the business of the Department of Education and Communities and which must be retained as a record;

● Short-term value email – email which is used to facilitate Department of Education and Communities business but is of a trivial nature or of such short-term value that it does not support or contribute to the business functions of the Department of Education and Communities;

● Personal email – email which is of a personal nature and which has no relevance to the business of the Department of Education and Communities.

These three categories are discussed in greater detail below:

2.2.1   Business Email

Business email forms part of the Department of Education and Communities’ records. It is email that documents the business activities of the Department of (sic) and should be saved as a TRIM record. Examples of business emails include:

● A communication between staff in which a formal approval is recorded;

● A direction for an important course of action;

● A discussion between staff where the context results in a decision being formulated;

● Record of the essential business of the Department of Education and Communities;

● Business information distributed by email (as attachments) for example original copies of minutes, the master copy of a document; Contracts.

● Records of conversations (file notes);

● Business correspondence received from outside or inside the Department of Education and Communities.

Business email must be retained to provide evidence of business activity and meet legal requirements.

2.2.2   Short-term Value Email

Short-term value email is email which facilitates Department of Education and Communities business but is of a trivial nature or of such short-term value that it does not support or contribute to the business functions of the Department of Education and Communities and does not need to be saved into TRIM. Examples of short-term value emails include:

● Notices of meetings;

● Copies of minutes;

● Copies of reports or newsletters;

● Staff movements;

● Advertising material and any other publicly available material;

● Internal work-related email received by “carbon copy” (CC) or “blind carbon copy” (BCC)

Short-term value email can be destroyed as normal administrative practice NAP.

2.2.3   Personal Email

Personal email is email that relates to a private or personal matter and has nothing to do with the business of the Department of Education and Communities. Examples of personal email include email dealing with topics such as:

● Let’s do lunch;

● Personal/family arrangements;

● Jokes;

● Unsolicited information of newsletters (i.e. not related to staff work responsibilities).

Personal email can be destroyed as soon as staff no longer require the item. If an email incorporates both personal and work-related information, then the email is a record and should be saved into TRIM as a record.

Contentions of the parties

Applicant

32. The applicant contends that the agency’s decision that it holds no further information that is responsive to her access application is not the correct and preferable decision and ought to be set aside. She submits that her access application ought to be remitted to the agency for reconsideration with specific directions to the agency in relation to the further searches for information required. I note that the applicant’s submissions approach the issue on the basis that she challenges an ‘implied decision’ of the agency that it holds no further information responsive to her access request. In fact, the agency expressly determined that this is the case.

33. The applicant submits that the fact that additional information amounting to 180 pages was identified by the searches conducted following remittal of her access application is clear evidence that the searches originally undertaken were inadequate. She rejects Ms Frearson’s attribution of this to ‘administrative error’ and submits that it is indicative of a deliberate attempt by staff within the Health Safety and Staff Wellbeing Directorate to conceal and withhold information from her. She contends that there are facts and issues in the material before the Tribunal which indicate that this continues to be the case.

34. In this respect, she submits:

i. the Schedule of documents incorporated into the original and new decisions are both incorrect as they refer to GIPA 22-1735, whereas the correct reference is GIPA 22-1731,

ii.   despite its original decision to provide access to all information that had been identified as falling with the scope of her access request, the agency failed to provide her with a copy of one identified document which is identified as ‘CLT – IME report of Dr Clayton – 11-01-2022’ until 23 March 2023 after its absence from the documents disclosed was reported by her at the NCAT Case Conference conducted on 27 February 2023,

iii.   Lauren O’Keefe’s statement to the effect that she has not managed the applicant’s workers compensation claim since 2019 is false. In this respect the applicant relies upon 48 pages of documents (being email exchanges) at Tab 13 of her 10 July 2023 bundle which reveal that Ms O’Keefe continued to deal with her workers compensation claim during 2020. She also relies upon copies of emails included at Tab 16 of her bundle from Mr Patrick Tane, Program Lead/Workplace Health and Management to the applicant dated 26 August 2021 and 2 September 2021 which advise that Ms O’Keefe is ‘managing [her] matter’ in his temporary absence. Additionally, and specifically, the applicant contends that Ms O’Keefe failed to identify an email from Mary Cutugno to Ian Jones dated 27 July 2022 into which Ms O’Keefe was carbon copied (this document is at Tab 17 of her bundle),

iv.    Mohamed Houda’s Search Officer Declaration (annexed as Tab I to Ms Frearson’s Statement) which is to the effect that no records were found cannot be accepted because he was a person who ‘endorsed’ the medical retirement of the applicant. Information identified by other staff as within the scope of her access application reveal that Mr Houda was actively involved in dealing with her proposed medical retirement. In this respect, the applicant points to the following:

a.   at Tab 22 of her bundle, an email dated 22 September 2022 from Bronwyn Lyon to Mr Houda and Jason Ji which has the subject line “MR Submission – CLT”. The body of that email states as follows:

“Good afternoon Mohamad & Jason

Please see link MR Submission for [CLT] as requested [link provided]

As this is my first MR submission, I welcome feedback and direction

…

b.   at Tabs 23 and 24 of her bundle, an email exchange between Leonie Byrne (Principal) and Mr Houda dated 10 November 2022, in which Ms Byrnes requests an update on the ‘following long term workcover employees’, which include CLT, as she would like to ‘move forward filling these positions’ if they are not returning. Mr Houda replied to that email stating:

“Hi Leonie

Jason Ji is currently managing the cases and will respond back to you.

As of next week, Sarah Tibos will be managing the cases.

c.   at Tab 25 of her bundle, a ‘Medical Retirement Submission’ variously dated by authorising persons up to 5 December 2022. That submission was ‘endorsed’ by Mr Houda by the application of his electronic signature on 20 November 2022. The applicant submits that there must be ‘emails with background information and requests for approval’ of her medical retirement surrounding this Submission which Mr Houda failed to identify when he undertook searches for information within the scope of her access application,

v.   the agency admits that Mr Houda did not undertake further searches for information after the remittal of her access application ‘because he was on leave and did not have access to his emails’,   

vi.   Ms Frearson admits at paragraph 5 of her Statement that ‘some staff involved in [her] case’ were on leave at the time her access request was processed and did not undertake searches,

vii.   Ms Frearson admits at paragraph 11 of her Statement that a draft Medical Retirement Submission was originally incorrectly determined to be outside the scope of her access application and was obliged subsequently to disclose this document to the applicant. The failure to identify this document as within scope originally demonstrates the inadequacy of the searches conducted,

viii.   the agency improperly relies upon Search Officer Declarations made in relation to other access applications she has made to demonstrate that searches for information within the scope of the present application have been reasonable,

ix.   the ‘Search Officer Request’ issued by the agency’s delegate to the Health Safety and Staff Wellbeing Directorate, Ms Dufty, Ms Wellard, Ms Byrne and Ms Hine on 19 December 2022 specified a date range for the access request of 1 January 2022 to 16 December 2022, in circumstances where the date of the amended application was 19 December 2022, and the determination of the access request was based on that end date,

x.   the Search Officer Declarations reveal that inadequate time was taken to conduct searches. In one case no time is stated and the others state search times of between 10 minutes and 40 minutes,

xi.   Ms Hine’s Search Officer Declaration is undated and incomplete. It is therefore invalid,

xii.   in its submissions the agency refers to some information identified by Ms Tibos and Ms Cutugno in their searches which was determined to be duplicates of other information disclosed or out of scope. She submits that ‘any document with the search term “CLT” is within scope” within the amended date range,

xiii.   by cross-referencing the information disclosed in response to the present application with information disclosed in relation to other access applications she has made, and her records and those of Mr Jones, she has identified a further 161 documents that fall within the scope of her present application which have not been identified and disclosed. These are at Tabs 16, 28, 29, 30, 31, 32 and 33 of her bundle,

xiv.   there is an obvious lack of internal documentation regarding communications between Work Health Safety Officers ‘involved in the process of planning, preparing, collating documentation required for the medical retirement submission’ in the information identified and disclosed in relation to her access application,

xv.   there are errors in the Medical Retirement Submission which potentially expose the agency to legal action. That is why agency staff are motivated to conceal and withhold information related to that document that falls within the scope of her access application.

Agency

35. The agency submits that the new decision that is the subject of this administrative review is the correct and preferable decision and ought to be affirmed by the Tribunal. In this respect, the agency submits that it has undertaken reasonable searches to identify information that falls within the scope of the applicant’s access request and that it may now be safely concluded that it does not hold any further information to that which has been disclosed to the applicant. In this respect, the agency submits that it has conducted 3 separate searches for information involving 9 staff. 5 staff have conducted 3 searches, and 4 conducted a single search. The agency submits that its searches have sought to respond to the specific issues of concern raised by the applicant.

36. With respect to the facts and issues the applicant asserts as indicating that the searches conducted were not reasonable, the agency submits:

i.   there was an administrative error by the Health Safety and Staff Wellbeing Directorate when searches were undertaken prior to the original decision. In this respect, information was held but was not discovered in the searches undertaken at that time. This deficiency was rectified by the searches conducted in relation to the remitted access application which identified 180 pages of information falling within scope of the access application all of which has been released to the applicant,

ii.   with respect to the further document identified by Ms Frearson as falling within the scope of the access application after the new decision was made, the agency submits that the fact this document was identified does not mean that the second and third rounds of searches were not reasonable, citing as authority for that proposition: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28] and Watson v NSW Trustee and Guardian (No. 2) [2016] NSWCATAD 19 at [25] to [28]. Rather, it submits that this is an indication that its searches have been genuine and thorough, citing as authority for that proposition CLT v Secretary, Department of Education [2022] NSWCATAD 34 at [44],

iii.   Ms O’Keefe has undertaken ‘several searches’ for information that falls within the scope of the access request and has not identified any such information in her records. That is the case notwithstanding that she may have had involvement with the applicant’s workplace injury claim in 2020 and 2021 contrary to her initial advice,

iv.   on 23 May 2023 a third Search Officer Request was sent by the Right to Access Unit to the Health, Safety and Wellbeing Directorate, which identified the date range of 1 January 2022 to 19 December 2022 which specified specific staff whose records were to be searched, being Ms O’Keefe, Mr Houda, Ms Purohit, Ms Tibos, Mr Ji, and Ms Cutugno. It is submitted that the searches conducted in response to that request overcame any deficiencies in the earlier search concerning the date range, and were otherwise exhaustive,

v.   Mr Houda did not conduct any further searches to those he conducted in February 2023 in response to the remitted application because he was on secondment at that time and did not have access to his email. In these circumstances it is reasonable for the agency to rely upon his February 2023 Search Officer Declaration,

vi.   an incomplete and unsigned Search Officer Declaration does not render it invalid. The document properties of Ms Hine’s unsigned Search Officer Declaration indicate that it was created on 19 December 2022,

vii.   some of the information the applicant has identified as not being identified and disclosed in response to her access application does not fall within the scope of the application,

viii.   agency staff are obliged to retain or dispose of email communications in accordance with agency policy. Staff are not required to retain ‘Short-term Value’ and ‘Personal Emails’. Evidence that emails of this character once existed, is therefore not inconsistent with them not being identified in the searches conducted by the agency because of the likelihood that they were subsequently deleted,

ix   the fact that there may be weaknesses in the agency’s searches or that there may be failures in its record keeping processes does not necessarily lead to the conclusion that searches had not been reasonable, citing as authority for that proposition Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49]; Gates v Port Macquarie-Hastings Council [2022] NSWCATAD 193 at [60].

Jurisdiction

37. Section 100 of the Act provides that a person who is aggrieved by a decision that is a reviewable decision under the GIPA Act may apply to the Tribunal for an administrative review of that decision under s 55 of the ADR Act.

38. Section 101(1) of the Act provides, relevantly, that an application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates was given to the applicant. In this case, as set out above, notice of the agency’s original decision was given to the applicant on 27 January 2023, and her application for administrative review was filed with the Tribunal on 31 January 2023. There is therefore no issue that the application was filed within the time permitted.

37. Section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act. They include, relevantly:

1. Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part –

…

(e)   a decision that government information is not held by the agency,

…

40. The Tribunal’s role in the conduct of an administrative review is prescribed in s 63 of the ADR Act:

1. Determination of administrative review by Tribunal

2. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   the applicable written or unwritten law.

1. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

2. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

    (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

    (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

   41. A “correct” decision is one that is rightly made, while preferable is apt to refer to a decision involving discretionary considerations: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 at [140] per Kiefel J.

Applicable law

42. The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states, relevantly:

(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:

…

(b)    giving members of the public an enforceable right to access government information, and

…

43. This object is amplified with a statutory command, contained in section 3(2), which provides:

(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 possible cost, access to government information.

44. Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information:

1. Presumption in favour of disclosure of Government Information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

45. Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1):

1. Access applications

2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

…

46. Part 4, Division 3 of the Act sets out the process according to which an agency is to deal with an access application. Section 53 in that Division sets out the scope of an agency’s obligation to search for information that falls within the scope of an access application. It provides:

1. Searches for information held by the agency

2. 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.

3. 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.

4. 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.

5. 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.

6. An agency is not required to undertake any search for information that would require an unreasonable and substantial division of the agency’s resources.

   47. Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides:

7. How applications are decided

8. An agency decides an access application for government information by:

(a)   deciding to provide access to the information, or

(b)   deciding that information is not held by the agency,

…

…

48. Division 4 of Part 5 of the Act concerns administrative review of decisions by NCAT. Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of the exceptions are relevant in this case.

Consideration

49. To determine the outcome of this application the Tribunal must pose and answer the following questions:

1. Has the agency discharged the onus imposed on it by s 105 of the Act of establishing that no further information is held by it that falls within the scope of the applicant’s access application?

2. In this respect, has the agency discharged the onus imposed on it by s 105 of the Act of establishing that it has conducted reasonable searches for such information?

3. If the answer to (b) is “no” should this aspect of the reviewable decision be set aside, and the access application remitted to the agency for reconsideration?

4. If the answer to (c) is “yes” what directions or recommendations, if any, should be given to the agency in relation to its reconsideration of the access application?

50. Whether the agency’s decision that it does not hold further information that falls within the scope of the applicant’s access application is correct and preferable ultimately depends upon whether it is able to discharge its onus of establishing that it has conducted reasonable searches for that information.

51. In this respect, in Klaric v Commissioner for Police [2020] NSWCATAP 153 an Appeal Panel of the Tribunal considered the extent of the Tribunal’s power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]:

1. The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search.

   52. The Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) concurred with that statement, but added at [41]:

2. … Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an “information is not held” decision is the “correct and preferable decision”. …

stating at [42] to [44]:

1. The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is “to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The “burden of establishing that the decision is justified lies with the agency”: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.

2. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.

3. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

   (1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

   (2)   determine whether the agency has proved any relevant factual issues on the balance of probabilities;

   (3)   consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

   (4)   applying those findings, decide what the correct or preferable decision is;

   (5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

   53. As I have said elsewhere on a number of occasions, s 53 imposes a “reasonableness” standard in relation to the searches required to be undertaken by an agency, rather than any absolute or strict standard. Such searches must therefore be “logical”, “sensible”, “appropriate” and “fair” but are not required to be “extreme” or “excessive” (to illustrate using synonyms and antonyms). The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency’s obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative, or belligerent observer (CLT v Secretary, Department of Education [2022] NSWCATAD 34 at [40]; Ugur v Commissioner of Police [2022] NSWCATAD 396 at [52].)

   54. It thus falls to the agency to establish pursuant to s 105 of the Act that it has carried out searches for government information within the scope of the access application in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant’s section 9(1) right to government information.

   55. The starting point for analysis is to recognise that the GIPA Act legislative scheme places a high onus on agencies to identify and provide access to government information (see ss 3, 5, 9 and 12). That obligation operates subject to limitations. However, leaving aside information that is excluded from the operation of the Act, this requires an agency to identify all information that falls within the scope of an application such that it is able to determine if it is to be disclosed or a limitation on disclosure applies. The searches conducted by the agency must therefore be robust enough to identify such information.

   56. Other than what is set out in s 53, the Act does not prescribe the particular form or manner in which searches are to be conducted. In this case, the agency has developed an administrative process for the management of searches by its staff to identify information that falls within the scope of an access request. This involves the Right of Access Unit specifying the types of records to be searched, devising search terms to be used, and specifying a temporal range within which searches are to be conducted. This information is communicated to relevant staff in the form of a Search Officer Request which specifies the date by which searches are to be conducted and any responsive information submitted to the Right of Access Unit for its consideration. The staff to whom these searches are delegated are required to complete Search Officer Declaration Forms which certify that they have undertaken searches in accordance with the Search Officer Request and which report the results of those searches, including the time taken.

   57. The applicant is critical of the agency’s searches in this case on the basis that there are deficiencies in some Search Officer Declarations, in particular, the Declaration completed by Ms Dufty and Ms Hine. It is submitted that these Search Officer Declarations do not comply with agency policy and are therefore ‘invalid’. She is also critical of the fact that the agency has placed some reliance upon information identified in searches conducted in relation to other access requests she has made.

   58. The role of the Tribunal in conducting this administrative review is not to ‘police’ staff compliance with agency administrative policies concerning the management of access applications. Where it is clear that an agency policy has not been complied with this may raise a question as to whether searches have been reasonable, but any such non-compliance is not ultimately decisive of the issue. The Tribunal’s task is a summative one. It must look at all of the facts and circumstances in a particular case to determine if searches have been reasonable.

   59. With respect to Ms Dufty’s and Ms Hine’s Search Officer Declarations in this case, I am satisfied that weight can be given to their conclusions that they did not identify records within the scope of the access request. While the deficiencies in those Declarations does raise a question as to whether adequate searches were conducted, I consider Ms Wellard’s evidence concerning Ms Dufty’s and Ms Hine’s roles to be decisive of the issue. In this respect, I accept that there is no reasonable basis to conclude that these officers would have any involvement in matters concerning CLT’s medical retirement.

   60. With respect to the agency’s reliance upon searches conducted in relation to other access applications the applicant has made, I note that there is at least some overlap between the present access request and those access requests. The issue for the Tribunal is whether reasonable searches have been conducted for information within the scope of the present access application, not whether the agency was obliged by its policy to initiate new searches, despite these being potentially duplicative.

   61. The access application was of relatively narrow scope. The applicant specified that she sought information in connection with her name concerning ‘medical retirement’ held by the Work Health and Safety Directorate and four specified staff members, being Ms Dufty, Ms Wellard, Ms Byrne and Ms Hine. When she amended her access application on 19 December 2022, Ms Byrne was removed.

   62. The agency’s searches were conducted using the ‘controlling’ search terms ‘CLT’ and “medical retirement”. That was clearly correct in my view. At some points in her submissions the applicant contends that the agency staff nominated in the access application had an obligation to identify all information held by them which related to CLT concerning her workplace complaints and her workers compensation claim. That is not the case. Information would only fall within the scope of her access application if it related to both ‘CLT’ and ‘medical retirement’. Information that did not specifically concern medical retirement falls outside the scope of the access request. Thus, to the extent that the applicant points to evidence that particular staff held information that identifies her by name, or related to her workplace complaints or compensation claim, this is not sufficient to indicate that information is held that has not been identified as within the scope of her application. It would only do so if this evidence related to her name and medical retirement.

   63. The original access request specified a date range of 1 January 2022 to 19 December 2022. However, it was originally receipted by the agency on 16 December 2022. By operation of s 53(1) of the GIPA Act 16 December 2022 therefore became the end date of the date range within which searches for information responsive to the access request had to be made.

   64. The applicant amended her application on 19 December 2022, and this resulted in the agency also determining that the end date of the date range within which searches had to be conducted was 19 December 2022. Whether or not that is a correct application of ss 41, 49 and 53(1), that is what happened in fact. Both the original and the new decision are based on the date range 1 January 2022 to 19 December 2022.

   65. This gives rise to a difficulty for the agency because the Search Officer Requests issued by Right of Access to the Work Health and Safety Directorate, Ms Dufty, Ms Wellard, and Ms Hine on 19 December 2022 specified a date range of 1 January 2022 to 16 December 2022, which was 3 days short of 19 December 2022. Both the original and new decisions are based on searches within that temporal range.

   66. If the matter had ended there, I would have had a significant doubt about the efficacy of searches conducted related to the period 17 to 19 December 2022. However, on 23 May 2023 Right to Access issued an amended Search Request to the Health, Safety and Wellbeing Directorate which required it to undertake further searches within the temporal range 1 January 2022 to 19 December 2022. Further searches were conducted within that range.

   67. The Tribunal’s role is to determine the correct and preferable decision as at the date of the hearing. Consequently, as at the date of the hearing I can be satisfied that the temporal range defect that infected the original and new decision has been substantially cured. I say ‘substantially’ because the agency still relies at the date of the hearing on the Search Officer Declaration completed by Mr Houda in January 2023 which was in relation to the date range 1 January 2022 to 16 December 2022. A doubt must therefore persist in relation to Mr Houda’s searches in respect of the period 17 to 19 December 2022.

   68. Against that, however, is Ms Frearson’s evidence that the records of the Health, Safety and Wellbeing Directorate, other than Mr Houda’s emails, have been searched using the applicant’s name and ‘medical retirement’ as search terms within the period 1 January 2022 to 19 December 2022 and, subject to one exception, have been identified and disclosed to the applicant. The one exception is a document identified on the third search which did concern the applicant’s medical retirement which had been incorrectly excluded from scope in earlier searches. While the applicant regards the previous failure to identify this document as suspicious of the existence of other like documents, from an objective point of view I am satisfied that its discovery is indicative of the genuineness and thoroughness of the third searches undertaken and/or overseen by Ms Frearson.

   69. I return to the issues raised by the applicant in relation to the searches conducted by Mr Houda following. However, with respect to the temporal range issue, there is nothing in the evidence before me that is indicative that Mr Houda’s emails contain records concerning CLT and medical retirement that are ‘Business emails’ within the meaning of the Agency’s ‘Advice 21 Email’ policy in respect of the period 17 to 19 December 2022.

   70. I turn now to the more specific facts and issues the applicant contends are indicative that not all information within the scope of her access request has been identified and disclosed.

   71. In this respect:

   i. a reference to the wrong GIPA Access Request no. on the Schedules attached to the original and new decisions may reflect a degree of carelessness in the formulation of these decisions, but this does not constitute evidence that information within the scope of the access application has not been identified or is being withheld,

   ii.   while I accept that the subsequent identification and disclosure of information within the scope of the access request by the agency establishes significant doubt about the adequacy of the original searches, this does not mean that this doubt should continue to infect subsequent searches. The reasonableness of subsequent searches must be considered independently of any defect in the original searches, except to the extent that subsequent searches should demonstrate those defects have been remedied. I am satisfied that this is the case here,

   iii.   the applicant has established to my satisfaction that Ms O’Keefe was involved in the management of her workers compensation claim until at least 2 September 2021. However, there is nothing in the evidence before me that would indicate that she continued to be involved in the applicant’s workers compensation claim between 1 January 2022 and 19 December 2022. The document at Tab 17 of the applicant’s bundle indicates that on 27 July 2022 Ms O’Keefe received a carbon copy of an email concerned the applicant’s workers compensation and return to work arrangements. That email does not refer to ‘medical retirement’ and it is an ‘internal work-related email received by “carbon copy (cc) ...’ and is thus a ‘Short-term Value Email’ not required to be retained in accordance with the agency’s records management policy. The failure to identify that document is thus not indicative that Ms O’Keefe holds documents within the scope of the access request that have not been identified and disclosed,

   iv   with respect to Mr Houda, Tab 22 contains a link to a document. That document, being the Medical Retirement Submission, was identified and released to the applicant in both draft and final form. Mr Houda was thus being provided with a ‘copy of a report’ which is a Short-term Value Email which he was not required to retain by the agency’s record management policy. The email invites his feedback on the Submission. But the fact that no response email providing feedback was identified does not decisively indicate that information has not been disclosed. Mr Houda may not have provided feedback, or if he did, he might have done so orally. His response may also have been in the character of a Short-term Value email that he was not required to retain.

   Tabs 23 and 24 are clearly Short-term Value emails which Mr Houda was not obliged to retain in accordance with the agency’s records management policy.

   Tab 25 is the Medical Retirement Submission which was identified and disclosed to the applicant. The applicant’s contention that there must have been surrounding emails evidencing the agency’s decision making process leading to the application of Mr Houda’s signature on that document can be given some weight in my view. In this respect, the agency’s policy defines ‘a discussion between staff where the context results in a decision being formulated’ as a Business Email which is required to be retained.

   Against that, however, are the following considerations. The Submission itself contains the proposed basis upon which medical retirement is being considered. This gives rise to the possibility that there are no surrounding emails containing this information. No emails of the nature expected by the applicant were identified in the other searches conducted by the Health, Safety and Wellbeing Directorate, including in the records of other signatories of that document. I consider it unlikely that Mr Houda would hold deliberative emails if other signatories of the document do not.

   On balance, while there is a rational basis for the doubt raised by the applicant, I am not satisfied that this is sufficient to lead to the conclusion that the agency’s searches for information, including that potentially held by Mr Houda in his email system, have been inadequate.

   v.   as I understand her evidence, Ms Frearson’s reference to ‘some staff being on leave’ when searches were conducted is a partial explanation for the agency’s failure to identify the further 180 pages of information which were identified in the searches conducted in respect of the remitted application. Other than Mr Houda, who was on secondment without access to his emails when the second set of searches were conducted, I understand Ms Frearson’s evidence to be that all relevant staff conducted searches. On this basis, I am satisfied that any deficiency of this nature in the original searches was rectified in the second set of searches,

   vi. s 53(1) of the Act imposes an obligation on an agency to undertake such reasonable searches as may be necessary to find any of the government information applied for, using the most efficient means reasonably available to the agency. The fact that the Search Officer Declarations each show that searches were completed in 40 minutes or less does not automatically lead to the conclusion that these searches were inadequate. In the circumstances of this case the access request was narrow in scope and required limited search terms to be applied. Most relevant records were electronic, which were facultative of almost instantaneous searches. For this reason, I do not accept that the search times reported in the Search Officer Declarations are indicative that these searches were not reasonable.

   vii.   I have considered the information at Tabs 16, 28, 29, 30, 31, 32 and 33 of the applicant’s bundle. I accept the agency’s submission that the information contained in, or the existence of which, are suggested by these documents, are appropriately characterised as Short-term Value Emails or Personal Emails which agency staff are not obliged to retain. The fact that they were not identified as held by the agency is therefore not inconsistent with reasonable searches having been completed.

   72. There can be little doubt that the original searches conducted by the Health, Safety and Wellbeing Directorate for information responsive to the applicant’s access request were not reasonable. These searches failed to identify 184 pages of information that are responsive to the access request. I have no difficulty in understanding that this has shaken the applicant’s confidence in the authenticity of the agency’s efforts to respond to her access request. It has clearly reinforced her sense that information is being deliberately withheld from her.

   73. However, as at the date of the hearing the agency has conducted 2 further searches, and those additional 184 pages have been identified and disclosed to the applicant. The applicant does not quibble with the search terms used to interrogate the agency’s records, and those search terms are objectively reasonable having regard to the scope of the access application. I am satisfied that as at the date of the hearing the agency has not only conducted reasonable searches of its records using those search terms, but that it has also genuinely investigated the applicant’s further concerns about information not identified and provided plausible explanations for why that information is not held, or has been determined as outside the scope of the request.

   74. The obligation to conduct searches is qualified by a reasonableness standard. It is not strict or absolute. It is not incompatible with a reasonableness standard that searches are not failsafe. The issue is whether there is any real likelihood that further information within the scope of the access application could be found based on a better search method. I cannot see any real potential for that in the circumstances of this case.

   75. For the foregoing reasons, and despite the deficiencies in the agency searches conducted in respect of the first and new decisions, as at the date of the hearing I am satisfied that the agency’s searches for information within the scope of the applicant’s access application have been reasonable. All identified information has been released to the applicant. This access application should now be brought to finality. The agency’s decision, as it stands at the date of the hearing, is therefore affirmed.

Orders

76. For the foregoing reasons I make the following orders:

1. The agency’s decision that it does not hold any further information that falls within the scope of Item 1 of the applicant’s access request is affirmed as the correct and preferable decision.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the applicant is prohibited.

**********

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: 26 February 2024