Efremov v NSW Health Administration Corporation

[2025] NSWCATAD 122

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Efremov v NSW Health Administration Corporation [2025] NSWCATAD 122

Hearing dates:

14 May 2025

Date of orders:

02 June 2025

Decision date:

02 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Block, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Government Information

– discretion to refuse to deal with application – how discretion should be applied – systemic factors – weight applied to factors

Legislation Cited:

Administrative Decisions Review Act 1997

Government Information (Public Access) Act 2009

Health Administration Act 1982

Cases Cited:

Cianfrano v Director General, Premier's Department [2006] NSWADT 137

Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130

Commissioner of Police v Danis [2017] NSWCATAP 7

Else v Ministry of Health [2021] NSW CATAD 381

Ruyters v Commissioner of Police [2020] NSWCATAD 223

Singh v Legal Aid Commission (No 2)

Wojciechowska v Commissioner of Police, NSW Police Force [2024] NSWCATAD 46

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Andrey Efremov (Applicant)
NSW Health Administration Corporation (Respondent)
NSW Information Privacy Commissioner (Interested Party)

Representation:

Crown Solicitor (Respondent)

File Number(s):

2024/00473953

Publication restriction:

Nil

REASONS FOR DECISION

1. Mr Andrey Efremov (the Applicant) seeks access to information held by the NSW Health Administration Corporation (the Respondent) in relation to medical devices which were used to test for Lyme disease in the period 2013 to 2024.

2. This is an application for administrative review of a decision of the Respondent to refuse to deal with an application to access information in reliance on s 60(1)(a) of the Government Information (Public Access) Act 2009 (GIPA Act), on the grounds that to do so would require an unreasonable and substantial diversion of the Respondent’s resources.

Jurisdiction

3. The Tribunal has jurisdiction to review an administratively reviewable decision pursuant to s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). The decision to refuse to deal with an access application is a reviewable decision by an agency in accordance with s 80(c) of the GIPA Act. The Tribunal has jurisdiction to determine this application pursuant to s 100 of the GIPA Act.

4. The Respondent is a statutory body representing the Crown as per s 9(2)(f) of the Health Administration Act 1982 (NSW), and falls within the definition of agency as per s 4(1) and clause 2 of Schedule 4 of the GIPA Act.

Material before the Tribunal

5. The material before the Tribunal included submissions and correspondence by both parties.

6. The Applicant provided an Affidavit affirmed on 5 April 2025, together with written submissions and a bundle of documents filed with the Tribunal on 5 April 2025 and additional documents filed on 6 May 2025.

7. The Respondent provided written submissions filed on 21 March 2025, their tender bundle on 24 March 2025, and a Tribunal Book on 13 May 2025. The Respondent also provided the Affidavit of Mr Matthew Ryan, an officer of the Respondent, sworn 18 March 2025, who gave evidence at the hearing before the Tribunal. 

8. Both parties made oral submissions at the hearing, but mostly relied on their written submissions.

9. The Applicant challenged the validity of Mr Ryan’s Affidavit asserting that each page was not properly signed or witnessed. The rules of evidence do not apply in the Tribunal, however I note that the Affidavit was properly sworn and witnessed. Mr Ryan confirmed its contents as true, and the Applicant was provided with an opportunity to cross-examine Mr Ryan.

Issues for determination

10. The Tribunal must identify and take into account any matters falling within the scope of s 60(3A) of the GIPA Act and then determine if, on balance, they outweigh the matters falling within s 60(3B) of the GIPA Act in reviewing the Respondent’s decision to refuse to deal with the Applicant’s access application.

11. As per Else v Ministry of Health [2021] NSW CATAD 381 at [54] “It is only where matters in s 60(3A) outweigh those in s60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency’s resources.”

Legislative Framework

12. Section 105 of the GIPA Act places the onus on the Respondent to satisfy the Tribunal that its Decision was justified. The function of the Tribunal is to hear the matter de novo and to reach a view itself, unrestrained by the view taken by the primary decision-maker.

13. Section 3(1) of the GIPA Act provides for the proactive release of government information by agencies, and gives members of the public an enforceable right to access government information, subject to certain exceptions. There is a presumption in favour of disclosure as per s 5 of the GIPA Act, and it, generally, cannot be made subject to conditions (s 73 of the GIPA Act).

14. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information, and s 9 of the GIPA Act provides applicants with a legally enforceable right to access such information, unless there is an overriding public interest against disclosure per s 13 of the GIPA Act.

15. Section 58 of the GIPA Act provides a range of options for agencies when determining access applications. These include (but are not limited to) deciding to provide access, deciding to refuse to provide access because of an overriding public interest against disclosure, or refusing to deal with the application.

16. Section 60 of the GIPA Act sets out the circumstances in which an agency can refuse to deal with an application for access and provides:

(1)  An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)—

(a)  dealing with the application would require an unreasonable and substantial diversion of the agency’s resources,

…

(3A)  In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency may, without limitation, take into account the following considerations—

(a)  the estimated volume of information involved in the request,

(b)  the agency’s size and resources,

(c)  the decision period under section 57.

(3B)  Any consideration under subsection (3A) must, on balance, outweigh—

(a)  the general public interest in favour of the disclosure of government information, and

(b)  the demonstrable importance of the information to the applicant, including whether the information—

(i)  is personal information that relates to the applicant, or

(ii)  could assist the applicant in exercising any rights under any Act or law.

(4)  Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency’s resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

Background

17. The Applicant contracted Lyme disease from a tick bite, for which he tested positive in 2020. In order to access medical treatment, the Applicant undertook further testing, which he asserts generated a false negative. As a result, the Applicant did not receive medical treatment for Lyme disease between 2020 and 2024, and consequently his condition significantly worsened.

18. The Applicant has previously made seven applications for information to the Respondent since September 2023, regarding Lyme disease testing by the Respondent, and has made additional applications during February 2025.

19. The application which is the subject of these proceedings was made on 2 October 2024. The Applicant sought the following information in relation to the NovaTec NovaLisa Borrelia burgdorferi IgG-ELISA device TGA Reg #205351 between 25 January 2013-19 February 2024; and the Trinity Biotech Trinity Biotech MarDx EU Lyme + VIsE IgG IgM Western Blot device TGA Reg # 205544 between 4 February 2013 and 29 June 2022:

“The list of all subcontractors or agents (such as QML Brisbane or Pathology QLD and others) who referred patients for the above tests for the above period of time and the number of patient referrals for each identified agent or subcontractor for each medical device;

The copy of withdrawal or a cancellation TGA certificate (letter) for Trinity Biotech MarDx EU Lyme + VIsE IgG IgM Western Blot;

Copy of the commercial contract between ICPMR and IMMUNO PTY LTD for the supply of the abovementioned IVDs (or so called Paragon Healthcare);

Emails and other official correspondence between IMMUNO PTY LTD or Paragon Healthcare in regard to the cancellation or withdrawal of Trinity Biotech MarDx EU Lyme + VIsE IgG IgM Western Blot. For the dates period 2021-2022; and

Official correspondence in regards to TGA Investigation of DIR 65452 (owner is Andrey Efremov). Dates 2020-2022.”

20. The Respondent consulted with the relevant business units and estimated that dealing with the application would take 117 hours, and formed the preliminary view that dealing with the application in the form received would require an unreasonable and substantial diversion of the Respondent’s resources.

21. By letter dated 14 October 2024, the Respondent provided the Applicant with a notice of intention to refuse to deal with the application, and invited the Applicant to revise the scope of information requested.

22. Via email on 15 October 2024, the Applicant did not amend the scope of his request but advised that the request was “highly important” for the public.

23. By letter dated 21 October 2024, the Respondent wrote again to the Applicant explaining the time estimates. In his email response of 24 October 2024, the Applicant narrowed the scope of his application by removing item 5 at ([19] above) and narrowing item 1 (at [19] above) to remove the request for the number of patient referrals made by each referrer.

24. The Respondent determined that dealing with the application would take an estimated 107 hours (ie only 10 hours less), and that the amended application would still require an unreasonable and substantial diversion of the Respondent’s resources.

25. By email on 4 November 2024, the Respondent advised the Applicant that the amended application did not sufficiently narrow the scope of the request and the time involved in granting the application, and offered him an additional opportunity to further amend the application, by narrowing the date ranges or reducing the number of individual items requested. This offer was rejected by the Applicant.

26. On 8 November 2024, the Respondent advised the Applicant that they refused to deal with his application pursuant to s 60(1)(a) of the GIPA Act on the basis that dealing with his application would require an unreasonable and substantial diversion of the Respondent’s resources (the Decision).

27. On 20 December 2024, the Applicant filed an application for administrative review of the Decision with the Tribunal, on the basis that he considered the Respondent had sufficient resources to deal with his application, and that the public interest considerations pursuant to s 60(3B) should outweigh the resourcing considerations.

28. The IPC was noted as an Interested Party to these proceedings but did not appear at the hearing, nor submit evidence.

Applicant’s case

29. The Applicant submits the correct and preferable decision was for the Respondent to deal with his application for access. His grounds for this review include the following:

1. That “the Respondent is a large agency and that it is very well-resourced” contrary to the Respondent’s claims of limited resources, and that its “time estimates should be considered cautiously”; and

2. That the balancing test in s 60 should result in a determination that s 60(3B) factors outweigh s 60(3A) factors in this matter, as there is a public safety imperative.

Respondent’s case

30. The Respondent submitted that they made the correct and preferable decision in the circumstances, and that their Decision should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

1. The Respondent relies on the estimated hours and resources required in relation to the application under review in these proceedings, in demonstrating its position that it would require an unreasonable and substantial diversion of resources.

2. The Respondent submitted that given the hours involved in processing the Applicant’s request, they would be unable to meet their obligations pursuant to s 57(1) of the GIPA Act to process the application within the requisite 20 days, or any permissible extensions to that timeframe.

3. The Respondent submits that they provided the Applicant with a reasonable opportunity to amend the scope of his application, and considers it made every attempt to assist the Applicant to narrow their request, in accordance with principles espoused in Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [102].

4. The Respondent submits that the Applicant’s access application entails a “very high volume of information that would need to be reviewed in order to respond to the request, as well as an expansive range of searches which would need to be conducted to locate the information sought”.

31. The Respondent called Mr Ryan, the Respondent’s GIPA Officer to give oral evidence under oath, who spoke to the Respondent’s limited resources and the process for assessing access applications.

32. Mr Ryan stated that the Respondent does not have a central record-keeping system, and it is likely that the relevant information would be stored across various business units, thereby requiring searches and retrieval to be conducted by technical and specialist staff.

33. Mr Ryan stated that he provided the Applicant with a number of opportunities to narrow the scope of his request, and this only resulted in a minimal reduction to 107 hours which remains well in excess of the resources and capacity of the Respondent.

34. Mr Ryan stated that whilst the Respondent has 5,500 full time equivalent staff, only a small subset have the requisite knowledge and ability to access the information sought by the Applicant, and he is the only officer available to process GIPA applications, as part of his role.

Consideration

Section 60(1)(a) matters

35. The Tribunal must identify and take into account any matters falling within the scope of s 60(3A) of the GIPA Act and then determine if, on balance, they outweigh the matters falling within s 60(3B) of the GIPA Act.

36. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] the Tribunal outlined the factors to be considered in determining such matters, to be:

1. the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a ‘sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort’ (see Rowlands P in Re Borthwick at 35)

2. the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick)

3. more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications

4. the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost

5. the reasonableness or otherwise of the agency’s initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application

6. the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)

7. the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours’ work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns

8. regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made

9. possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.

37. These matters were confirmed by the Tribunal to be relevant to an assessment under s 60(1)(a) of the GIPA Act in Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130.

Section 60(3A) matters

38. The Appeal Panel in Commissioner ofPolice v Danis [2017] NSWCATAP 7 noted at [41] that “Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient deployment of agency resources.”

39. The Respondent submitted that s 60(3B)(a) of the GIPA Act refers to the inherent public interest in the disclosure of government information as set out in s 12(1) of the GIPA Act, and as per Wojciechowska v Commissioner of Police, NSW Police Force [2024] NSWCATAD 46 at [96] it “does not involve any assessment of the public interest in the disclosure of the particular government information that falls within the scope of the access request”.

40. The Respondent estimated that due to the hours involved, they would be unable to meet the timeframe mandated by s 57(1) of the GIPA Act. The Respondent noted that this is one of 11 applications since September 2023, by the Applicant, and that 692 records have been generated in relation to those applications. Further, the Respondent estimates that approximately 70% of the GIPA access applications they receive, are submitted by the Applicant, and they have spent roughly 120 hours processing such applications thus far.

41. The 40 hours rule referenced in Cianfrano does not automatically establish a 40 hour rule to be applied in all such matters. What constitutes a reasonable number of hours will need to be determined by the size of the agency and the resources they have available, in the particular circumstances of each matter.

42. Mr Ryan gave evidence that whilst they are a large agency in terms of employee numbers, that figure mostly comprises front line health staff, and that he is the only officer charged with handling GIPA applications, amongst his other duties. Further, Mr Ryan stated that the Applicant’s request would require creation of a bespoke program to extract the data, and then a specialist to review the documents. This would divert laboratory staff and clinicians from their usual duties which would negatively impact the rest of the community.

43. Mr Ryan stated that the Applicant’s request necessitates the involvement of technical and clinical staff, and that their estimate of 107 hours should be considered conservative.

44. The Tribunal accepts Mr Ryan’s evidence, which was considered, and based on his expertise and experience.

45. Given the available resources of the Respondent, and the need for diversion of technical expertise for dealing with GIPA access applications, it appears that applying a 40 hour upper limit would be fair, and that 107 hours is well in excess of their stated capacity.

38. The Respondent has taken reasonable steps to assess the volume of material involved, and the time needed to process the access application. I accept the Respondent’s evidence that the processing time required to satisfy the Applicant’s request would exceed 100 hours.

39. The Applicant was given more than one opportunity to narrow the scope of the application, and he failed to redraw the boundaries of his application sufficiently to meaningfully reduce the hours and resources required.

40. The Applicant sought to further limit the scope of his application during the hearing. However this request was refused on the basis that any amendment of scope would require Mr Ryan’s liaison with the relevant business units, to ascertain what impact that amendment would have, and whether the revised estimation of hours would be sufficiently reduced, to enable the granting of the application.

41. I am satisfied, on the material before the Tribunal, the investigations into this matter conducted by the Respondent were reasonable and the time estimates calculated by the Respondent, were carefully considered and are justified.

Section 60(3B) matters

50. The Applicant claims that defects in the testing process produced serology results which were inaccurate. He believes that the medical devices which were previously used for testing were faulty, and provided many patients, including the Applicant, with false negatives, which in turn meant they were unable to access treatment. He considers that the information sought will therefore provide evidence in support of a possible class action claim for medical negligence, as a result of the Respondent’s misconduct and their widespread failure to properly diagnose Lyme disease.

51. The Applicant provided extensive technical material in his Affidavit regarding Lyme disease testing utilising previously obtained documents. From those documents, it appears that there have historically been a few complaints arising out of false negatives, which appeared to be explained in the material as potentially caused by the sensitivity levels of the test being set to avoid false positives. However, the Applicant claims that over 10,000 people have been affected, on the basis of receiving information that over 10,000 people tested negative on the relevant devices. There is no evidence to support the Applicant’s conclusion that every person who tested negative therefore had Lyme disease and must have received a false negative, and no discernible link between his theory and the nature of the information sought.

52. As per Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [54], “it is necessary for an applicant to put forward some material to indicate the importance of the information sought rather than engaging in mere speculation or conjecture”.

53. On the material before the Tribunal, I accept that there may be some limited general public interest in the information.

54. With regard to s 60(3B)(b) considerations, the nature of the information sought does not appear to be of a personal nature to the Applicant directly, rather it relates to the commercial arrangements and interactions of the Respondent, around the use and withdrawal of the devices generally throughout the period.

Balancing

55. Considered together, I am satisfied that the s 60(3A) matters identified by the Respondent, including the number of hours involved, the level of technical expertise and bespoke solutions required, and the number of parties required to be consulted and diverted from their usual clinical duties to deal adequately with the application for access, significantly outweigh the matters identified by the Applicant as s 60(3B) matters.

56. I am therefore satisfied that dealing with the application would require an unreasonable and substantial diversion of the Respondent’s resources and that the correct and preferable decision is to refuse to deal with the application pursuant to section 60(1)(a) of the GIPA Act.

Orders

57. The decision under review is affirmed.

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

Registrar

Decision last updated: 02 June 2025