Denton v Eurobodalla Shire Council
[2013] NSWADT 165
•24 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Denton v Eurobodalla Shire Council [2013] NSWADT 165 Hearing dates: On the papers Decision date: 24 July 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent is affirmed.
Catchwords: Government information - adequacy of search Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009Category: Principal judgment Parties: Sharon Denton (Applicant)
Eurobodalla Shire Council (Respondent)Representation: M Arch (Applicant on15 January 2013) and S Denton Applicant in person
A O'Reilly (Respondent)
File Number(s): 123316
reasons for decision
The applicant, Ms Denton, seeks review of a decision of the respondent, Eurobodalla Shire Council, made pursuant to the Government Information (Public Access) Act 2009 (GIPA Act), in regard to her application for access to government information under that Act.
Ms Denton is the owner of a property that falls within the bounds of the respondent's responsibility. Ms Denton had made several representations, including representations to her Local Member of Parliament, seeking to acquire documents associated with her property and that of her neighbours. At the suggestion of her Local Member, in September 2012, Ms Denton made a formal request, to the respondent, for access to specified documents. In particular, she requested access to a copy of 'information and engineers reports' as follows:
Public works (road works)
AHD surveyors report when kerb and guttering installation works 2005 cnr Headland Grove and Southhead road
AHD surveyors report of road surfacing (public works) 2011 Headland Grove
AHD surveyors report of public works South Head road and Kerb and Guttering (Bike path maintenance) cnr Headland Grove and Southhead road 2012
History
Hydraulic report for installation of sewer line 2001
History of the area AHD surveyors reports before Headland Grove subdivision DP 255193 Lot 19 and surrounding areas 1-100
Development? On adjoining block 200 South Head Road AHD Surveyor's reports and Original house plans? 1-100
AHD Surveyor's reports of Current plans
Environmental impact study?
The respondent determined Ms Denton's application on 9 October 2012. The respondent determined to grant the applicant access to a copy of 16 documents that it had found to fall within Ms Denton's request. A schedule of these documents was attached to its written determination. In that determination the respondent also advised as follows:
...
You have requested the 'Original house plans' for 200 South Head Road however due to Privacy Laws these may only be released t the property owner. I have however, included a site plan which also shows the elevation of the house.
In your application, you requested an "Environmental Study'. It was unclear if you meant Environmental Study for 200 South Head Road or for the installation of the sewer line. I have provided the Statement of Environmental Effects which relates to the plan of subdivision on 200 South Head Road. I have also included the Council Report, Minute and Development Consent letter approving the subdivision.
The Environmental Impact Statement undertaken in 1998 prior to the installation of the sewer line is subject to copyright and cannot be provided however the document can be inspected at Council's Administration office in Moruya. Should you wish to view the document please contact Council's Customer Service Staff.
...
Ms Denton was dissatisfied with the response she received from the respondent. After consulting the Office of the Information Commissioner, Ms Denton made this application, to the tribunal, seeking external review of the respondent's determination. In her application for external review, Ms Denton said that the information she had received from the respondent was 'inexact.' She also explained that she needed the information requested so that she could obtain an understanding of the 2005 and 2011 public works reports and whether these works 'increased water flow' to the rear of her property and any 'implicated safety concerns.'
Ms Denton's application first came before me at a directions hearing on 15 January 2013. At this directions hearing, Ms Denton was represented by Mr M Arch, solicitor. Mr Arch advised that Ms Denton had only very recently instructed him to appear. He said Ms Denton informed him that she had not received copies of the information sought in her access application. In particular, Ms Denton was concerned that no relevant surveyor or engineer report of the specified road works had been identified or provided by the respondent. Mr O'Reilly, who appeared by telephone, on behalf of the respondent, advised that Ms Denton had been provided with a copy of the 16 documents identified in the respondent's determination. He explained that the respondent did not hold surveyor or engineer reports as these were not always sought or obtained by the respondent when undertaking public works.
As Ms Denton did not accept this explanation. As there was some confusion about the reports for which Ms Denton sought access, by consent, an order was made that Ms Denton provide a more detailed written explanation of the information sought in her access application. On order was also made for the respondent to provide a detailed written reply.
Mr Arch, on behalf of Ms Denton, wrote to the respondent, on 5 February 2013, providing the additional information and the respondent replied on 18 February 2013.
The matter came before me for further directions, on 7 March 2013. On this occasion, Ms Denton appeared in person. She again insisted that she had not been provided with the documents sought. After some discussion, I made a number of orders. I directed Ms Denton to file and serve a document that identified the information (document) for which she had sought access that she claimed the respondent had failed to provide. I also directed the respondent to file and serve a chronology of the steps taken in regard to Ms Denton's access application. By consent I also made an order that the tribunal determine this application on the papers, pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.
On 15 March 2013, Ms Denton filed and served a response to the respondent's reply. The response addressed each of the 8 items. In this response, Ms Denton asked to be provided with further documentation, information and explanations about work that had been done. Ms Denton also wrote to the tribunal on 17 March, 7 April and 23 April 2013. These communications appear to raise issues about Ms Denton's more general concerns about her property concerns and not this review application. Hence I have not considered them any further.
The only issue in this application is whether the respondent has provided the applicant with the information sought in her, September 2012, access application. For the reasons set out below, in my view, the respondent has met its obligations under the GIPA Act and provided the applicant with the information Ms Denton requested in her access application.
GIPA Act
The objects of the GIPA Act are set out in s 3, which provides::
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.' The word 'record' is defined in clause 10 of Schedule 4 of the GIPA Act as follows:
10 Meaning of "record"
(1) In this Act:
record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.
(2) A reference in this Act to a record includes a reference to a copy of the record.
(3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
Part 2 of the GIPA Act contains provisions in regard to the ways in which government information can be accessed, public interest considerations (i.e. public interest considerations in favour of disclosure, public interest considerations against disclosure and the test for determining whether there is an overriding public interest against disclosure) and assistance to be given to access applicants.
Part 4 of the GIPA Act relates to access applications. It is divided into 6 Divisions as follows:
(a) how an access application is made (Division 1 ss 41 to 50),
(b) how access applications are to be dealt with by an agency (Division 2 ss 51 to 56)
(c) how access applications are to be decided (Division 4, ss 57 to 63)
(d) how charges and advance deposits are to be dealt with when dealing with an access application (Division 5, ss 64 to 71), and
(e) how access is to be provided (Division 6, ss 72 to 79).
For the purpose of this application the relevant provisions are ss 53, 58 and 72.
S 53 sets out the extent of an agency's obligation to search for the information for which access has been requested:
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.
S 58 sets out how an access request/application is to be decided. It is in the following terms:
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.
S 72 deals with the form in which access is to be provided. It relevantly provides:
72 Forms of access
(1) Access to government information in response to an access application may be provided in any of the following ways:
(a) by providing a reasonable opportunity to inspect a record containing the information,
(b) by providing a copy of a record containing the information,
(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),
(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
(2) The agency must provide access in the way requested by the applicant unless:
(a) ..., or
(b) ..., or
(c) to do so would involve an infringement of copyright, or
(d) ....
Note. Decisions about how to provide access are reviewable under Part 5.
Part 5 of the GIPA Act makes provision for reviews of decisions of an agency in regard to an access application made under Part 4 of the Act. S 80 sets out which decisions of an agency are reviewable under Part 5 (reviewable decisions). This includes a decision that government information is not held by an agency (see para 80(e)). The term 'government information held by agency' is defined in cl 12 of Schedule 4 of the GIPA Act. It includes information contained in a record held by the agency (see para (a)).
In essence, Ms Denton's application is an application seeking review of the respondent's decision that it did not hold the information for which she sought access.
S 100 of the GIPA Act provides that a person aggrieved by a reviewable decision of an agency may apply to the tribunal for a review of that decision.
S 105 of the GIPA Act provides that in this review application, the onus is on the respondent to establish that its decision is justified.
Consideration
In his letter to the respondent, Mr Arch identified 8 separate items of information for which Ms Denton had sought access as follows:
1) AHD surveyors report when kerb and guttering installation public works 2005 cnr Headland Grove and South Head Road
2) AHD surveyors reports of road surfacing (public works)
3) AHD surveyors report of public works South Head Road Kerb and Guttering (bike path maintenance - cnr Headland Grove and South Head Road 2012
4) Hydraulic report for installation of sewer line in 2001
5) History of the area AHD surveyors report before Headland Grove subdivision DP 255193 Lot 19 and surrounding areas 1-100
6) Development on adjoining block 200 South Head Road AHD Surveyors reports and Original house plans 1-100
7) AHD Surveyor's Report of Current Plans
8) Environmental Impact Study
In its reply, the respondent said that no document existed in regard to item 2) as the respondent reseals roads according to the adopted Road Sealing Maintenance Schedule. In regard to item 8) the respondent reiterated what had been said in its determination that a copy of the Environmental Impact Statement was subject to copyright. It noted that the document was 250 pages in length. As I have explained above, the respondent had determined that Ms Denton could access the Statement by coming to view it at the respondent's offices.
In regard to the other items, the respondent identified, for each item, the documents previously provided that fell under that item. A further copy of the documents was also attached. For some items, the respondent included additional documents, not falling within Ms Denton's access request, but which the respondent thought might be of assistance to her. Again copies of these documents were attached. In regard to some items the respondent also provided some further background information about the information sought.
In my view, the respondent's reply to Mr Arch's letter is sufficiently detailed to show that the respondent has met its obligation under s 53 of the GIPA Act. It is also consistent with the respondent's contentions during directions hearings that it has provided Ms Denton with the information she requested on a number of occasions.
Although Ms Denton appears to contend otherwise, her response to the respondent's reply does not point to any material that suggests the respondent holds information of the kind described by Mr Arch in his letter to the respondent. The fact that Ms Denton has ongoing issues and questions about the public works near her property does not mean that the respondent has failed to determine her access application appropriately, by withholding documents relevant to the terms of the access application.
Accordingly, I find that the respondent's decision is the correct and preferred decision. Hence the appropriate order is to affirm the decision of the respondent.
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Decision last updated: 24 July 2013
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