Davison v NSW Department of Education and Training
[2013] NSWADT 25
•04 February 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Davison v NSW Department of Education and Training [2013] NSWADT 25 Hearing dates: On the papers Decision date: 04 February 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent is affirmed.
Catchwords: Government Information - public access application - whether access application sought access to information contained in a record held by the agency - whether an access application seeking an explanation as to the legislative basis on which a decision of the agency was made is a valid application - adequacy of search Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access Act) 2009Category: Principal judgment Parties: Mary Cawood Davison (Applicant)
NSW Department of Education and Communities (Respondent)Representation: M Davison (Applicant in person)
M Moore, Principal Information Access Officer (Respondent)
File Number(s): 123019
REASONS FOR DECISION
Introduction
The applicant (Mrs Mary Cawood Davison) seeks review of a decision of the respondent (NSW Department of Education and Communities), made under the Government Information (Public Access) Act 2009 (GIPA Act), in regard to her application for access to government information.
The applicant had made her application for access on 26 February 2011. In essence the applicant sought access to the following information:
1.We seek a copy of the administrative decision taken by the NSW Department of Education and Training to allow our child to be enrolled at Hunter School of the Performing Arts from 28th April 2008 to 26th May 2008 when ....
2.We seek a copy of the administrative decision made by the NSW Department of Education and Training to allow our child to sign Hunter School of the Performing Arts permission and absentee notes concerning his attendance at Hunter School of the Performing Arts from 28th April 2008 to 26th May 2008 when...
The applicant's child, a son, was 15 years of age at the relevant time. He had been attending the Hunter School of Performing Arts, prior to the April 2008 school holidays. Sometime prior to 28 April 2008, the applicant and her husband decided that their son should not continue attending the Performing Arts School and formally enrolled him to attend their zone school from 28 April 2008. The applicant's son did not attend the zone school and continued to attend the Hunter School of Performing Arts. As indicated above, the applicant's GIPA access request sought a copy of two decisions made by the respondent in regard to her son's attendance at the Hunter School of Performing Arts. However, the applicant's request went further than this in that she provided additional commentary and further requests for information. As I have explained below, this additional commentary and further requests have caused some confusion as to the information the applicant was seeking access to. In making this remark, I am not critical of the applicant and accept that at the time she made her GIPA access request she did not fully understand that access requests made under the GIPA Act can only be made in regard to information that is held by the agency at the time the request is made. It is not a vehicle for seeking answers to questions a person might have in regard to administrative action taken by a government agency, or seeking an explanation by an agency as to why particular action was taken.
The respondent determined the applicant's application on 29 March 2011. In its reasons for decision, the respondent said that it had been identified 178 pages (122 pages after removing duplicates) as falling with the terms of the applicant's access application. With the exception of some deletions on five pages, the respondent determined to grant the applicant access to the information in the identified pages. In regard to the deleted information, the respondent had determined to refuse that applicant access to this information as it was information for which there was a public interest consideration against disclosure (i.e. personal information of a person other than the applicant) and this public interest against disclosure, on balance, was an overriding one.
On 4 April 2011, the applicant sent an email to Ms Marianne Moore, Principal IA Officer of the respondent, informing her that the document she had been provided with were documents: (a) she had already received, (b) she could have accessed as a parent in any event, or (c) she and her husband had signed and provided to the respondent. The applicant went on to say that she had not received a copy of the information she had in fact requested.
On the same day, the applicant made an application to the Office of the Information Commissioner (OIC) seeking review of the respondent's decision, which she was entitled to do: see section 89 of the GIPA Act.
The OIC completed its review on 23 December 2011. In its report, the OIC summerised the applicant's access application along the lines set out in paragraph [2] above. However, in its summary the OIC also included the words 'the exact legal authority, power, or duty that allowed DEC [the respondent] to take this decision/action'. At paragraph [12] of its report, the OIC said:
12. In the course of this review, Ms Davison told us that she has decided to only press for access to information that details the authority (specifically legislative authority, including the relevant section) which allowed DEC to make the following decisions:
a.allow her son to be enrolled at the school after 28 April 2008 against her wishes
b.allow her son to be the authorised signatory on his personal absentee and permission notes on or after 28 April 2008.
In the course of the OIC's review, the respondent wrote to the applicant on 7 December 2011, setting out the information requested by the applicant as categorised by the OIC. A copy of that letter was attached to the applicant's application in these proceedings. In its report the OIC said that the letter did not provide the information sought by the applicant and it recommended that the respondent make a new decision, by way of internal review, within 15 working days from the date of its report. The new decision, as recommended by the OIC, was a decision in regard to the request, as reformulated by the OIC in paragraph [12] of its report (see paragraph [7] above).
On 16 January 2012, the respondent wrote to the applicant and the OIC advising them both that it did not intend to make an internal review report as recommended by the OIC. The respondent also set out its reasons for adopting the position it had. Included in these reasons was that it had already provided that applicant with all the information it held in respect of her GIPA request and that it had fully explained the circumstances of her son's attendance at the Hunter School of Performing Arts in its letter of 7 December 2011.
Being dissatisfied with the respondent's response to the recommendations of the OIC, the applicant made this application for review by the tribunal.
The matter first came before me, on 17 April 2012, at a planning meeting. Further planning meetings were held on 24 May and 5 July 2012. On 5 July 2012, the parties agreed that the application should be determined on the papers, pursuant to section 176 of the Administrative Decisions Tribunal Act 1997 (ADT Act).
Issues
The role of the tribunal is to determine 'what the correct and preferable decision is' having regard to the material then before it, including (a) any relevant factual material, and (b) any applicable written or unwritten law: see subsection 63(1) of the ADT Act. In doing so, the tribunal sits in the shoes of the respondent and considers the matter a fresh: see subsection 63(2) of the ADT Act.
The issue in this application is whether the respondent has, or has not responded fully to the GIPA access application of the applicant. For the reasons set out below, I have found that the decision of the respondent is the correct and preferred decision. In reaching that finding I have also found that the respondent has adequately searched for the information requested by the applicant.
Applicable Law
It is convenient to first deal with the applicable law, as set out in the GIPA Act. The objects of that Act are set out in section 3 as follows:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(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.
The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. Government information 'held' by an agency is defined in clause 12 of Schedule 4 of the GIPA Act. It provides as follows:
12 Government information held by agency
(1) A reference in this Act to government information held by an agency is a reference to:
(a) information contained in a record held by the agency, or
(b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or
(c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or
(d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister).
(2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet).
(3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency.
Part 4 of the GIPA Act deals with access applications, how they are to be made and dealt with by the agency from whom access is sought. Division 1 of this Part (ss 41 to 43) deals with what is required to make an access application. Division 2 of this Part (ss 44 to 50) deals with the amendment, transfer or withdrawal of an access application.
Division 3 of Part 4 of the GIPA Act (ss 51 to 56) sets out the process that is to be used by an agency in dealing with an access application. Section 53 sets out the obligation of an agency to search for the information for which access has been requested. It provides:
53 Searches for information held by agency
(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Division 4 of Part 4 of the GIPA Act (ss 57 to 63) sets out how and when an agency is to decide an access application. For the purpose of this application, the relevant provision is section 58, which provides as follows:
58 How applications are decided
(1) An agency decides an access application for government information by:
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) deciding that the information is already available to the applicant (see section 59), or
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) deciding to refuse to deal with the application (see section 60), or
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
Note. These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
Division 5 of Part 4 (ss 64 to 71) makes provision for an agency to require the payment of a processing charge and an advance deposit.
Division 6 of Part 4 (ss 72 to 79) makes provision for the forms access to the information requested by the access applicant. For the purpose of this application, the relevant provision is section 75, which provides as follows:
75 Providing access by creating new record
(1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information.
(2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following:
(a) make a new record of information held by the agency,
(b) update or verify information held by the agency,
(c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.
Section 76 of the GIPA Act, authorises an agency to provide an access applicant with information not applied for. That section is in the following terms:
76 Providing access to information not applied for
An agency is authorised to provide access to government information in response to an access application that is in addition to the information applied for, unless there is an overriding public interest against disclosure.
As indicated above, section 80 of the GIPA Act sets out which decisions of an agency in dealing with an access application are 'reviewable decisions'. Included in these is a decision that the 'government information' requested is not held by the agency: see paragraph 80(e) of the GIPA Act. Section 100, provides that an access applicant who is aggrieved by a 'reviewable decision' of an agency may apply to the Tribunal for a review of that decision. There is no dispute that the decision of the respondent, made on 29 March 2011, in regard to the applicant's GIPA request for access to the information held by the respondent is a reviewable decision.
Consideration
In my opinion, the starting point in this application for review is the terms of the applicant's GIPA access request. As I have explained in paragraph [2] above, the essence of the applicant's request was for access to two very specific administrative decisions of the respondent concerning the applicant's son. However, the applicant's request went on to cite a number of specific NSW and Commonwealth Acts and other matters including (a) a request for 'the exact legal authority, power, duty and legal prescription' on which each decision was made and (b) the respondent's confirmation as to her rights of review, by the tribunal, of its decisions. In regard to the latter, I do not understand what the applicant was trying to say. In any event it is not a matter raised in this application.
In regard to the former, in my view, this is not a matter falling within the terms of the GIPA Act. The applicant's request about the exact legal authority etc. was not a request for access to information 'held' by the respondent. It was a request for an explanation or answer to a question posed by the applicant. As I have explained, the GIPA Act gives every person an enforceable right to seek access to 'information' 'contained' in a 'record' that is 'held' by the agency: see sections 3, 4 and 41 and clause 12 of Schedule 4. It is not a vehicle for seeking explanations of administrative decisions of a government agency, unless an explanation (the information) is contained in a record of the agency at the time the GIPA access request was made: see subsection 53(1) of the GIPA Act.
On receiving the applicant's request for access the respondent should have raised this distinction with the applicant and if necessary, sought clarification from the applicant as to the specific information she was seeking access to: see sections 51 and 52 of the GIPA Act. Instead it notified the applicant that her application was a valid one. On this basis the applicant had every expectation that she would receive the requested explanation.
On review, the OIC did seek clarification from the applicant and as I have explained reformulated her request for access (see paragraph [7] above). However, it is not altogether clear from the terms of this reformulated request for access whether the applicant's request is for access to 'information held' by the respondent that evidences or records the legislative authority on which the two administrative decisions were made, or whether the applicant was seeking 'information' in the form of an explanation or answer to her question as to the legislative basis on which the two decisions were made. The former, in my view, is a valid request for access under the GIPA Act. However, the latter is not. In this regard, the respondent contends that it provided an explanation to the applicant's question in its letter of 7 December 2011. The OIC appears to have accepted the applicant's dissatisfaction with that explanation. In my view, the explanation and its adequacy, are not matters relevant to the GIPA Act. The explanation was clearly provided by the respondent in an endeavour to assist the applicant and not as a result of any obligation on it under the GIPA Act. Regrettably, this was not made clear at the time the explanation was sought and then provided.
What is relevant in this review application of the applicant, is whether the respondent has identified and located all the information it held, at the time of the applicant's access application, relevant to the terms of her request: see subsection 53(1) of the GIPA Act.
For the purpose of this application, I have assumed that the applicant's request for access is for a copy of the information concerning the two administrative decisions referred to in paragraph [2] above and the information (held by the respondent) that evidences or records the legislative authority on which these decisions were made.
It is the contention of the respondent that it has provided the applicant with all the information it holds in respect of her son's attendance at the Hunter School of Performing Arts during the relevant time. The applicant is dissatisfied with the respondent's response. In her written submissions the applicant set out the basis on which she was dissatisfied. In essence, she asserts that the respondent has only identified and located that which it regarded as relevant and has failed to identify or locate a document that identifies (a) that, at the relevant time, she and her husband had parental responsibility for their son, and (b) a document that records the conversation that the Principal of the Hunter School for Performing Arts asserts he had with the applicant in April/May 2008. The applicant also contended that, contrary to the recommendation of the OIC, the respondent has failed to provide the information as to the legislative basis on which it had made the two administrative decisions.
In its written submission the respondent explained what additional information, held by it, that has been released to the applicant in the course of these proceedings. This information fell outside the period of the applicant's request, but was information previously requested by the applicant and not released to her as the respondent had determined that there was a public interest consideration against disclosure of that information and that it was overriding one: see sections 13, 14(1) and clause 5 of Schedule 1 and 14(2) of the GIPA Act.
The respondent also set out the inquiries that were made to locate documents containing information falling within the terms of the applicant's GIPA request. The applicant has not disputed that that these searches were made. Nor has she pointed to any other area where searches should have been undertaken. Her only complaint is that information that she expected to be there, such as a record of decisions made and discussions had, were not located or identified. While I can understand the applicant's concerns, the only outstanding matter relevant to her GIPA request is whether the respondent has met its obligations under subsection 53(2) of the GIPA Act and undertaken 'reasonable searches' by 'using the most efficient means reasonably available' to it. On the basis of the submissions of the respondent, which outlines the searches it has made and the responses it has received, I am satisfied that it has met its obligations and undertaken reasonable searches.
Accordingly, I find that the decision of the respondent is the correct and preferred decision and on this basis the appropriate order is to affirm the decision of the respondent.
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Decision last updated: 04 February 2013
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