Fisher v Roads and Maritime Services NSW

[2018] NSWCATAD 52

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Fisher v Roads and Maritime Services NSW [2018] NSWCATAD 52
Hearing dates:	On the papers
Date of orders:	08 March 2018
Decision date:	08 March 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	(1) The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – government information – review of decisions - reasonable grounds to believe information exists and is held - reasonableness of search
Legislation Cited:	Government Information and Public Access Act 2009 (NSW) Roads Act 1993 (NSW)
Cases Cited:	Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCAT 186
Category:	Principal judgment
Parties:	John Fisher (Applicant) Roads and Maritime Services (Respondent)
Representation:	Applicant (self-represented)   Solicitors: Maddocks (Respondent)
File Number(s):	2017/00332826

REASONS FOR DECISION

Background

1. The applicant originally applied for access to information held by the respondent under the Government Information and Public Access Act 2009 (the GIPA Act) on 15 March 2017. Following correspondence between the applicant and the respondent, it was agreed that the application should be treated as being in the following terms:

“Please provide the following information relating to Taradale Road (Currawang Road to the Federal Highway – also annotated as “road number 103 per Mulwaree Shire”), Goulburn:

1.   Copies of any historical/archive maps documenting the route of Taradale Road (post 1960)

2.   Documents, including any submissions made to RMS/RTA relating to the location and/or use of the access ramp the subject of DA 137/2008.

3.   Documents relating to and including the risk assessment undertaken by RMS relating to the addition of two gates over the cattle grid at Taradale Road.

4.   Documents relating to the installation and location of the 4 recently installed signs saying “Taradale Road” which point north on the Federal Highway”.

2. On 24 April 2017 the respondent issued a decision providing access to 49 pages of information. On 26 April 2017 the applicant applied for internal review of the decision. The internal review decision was issued on 16 June 2017.

3. The internal review application stated the following grounds:

“GIPA Response appears to:

• Lack historical depth, application made for records from 1960 onwards (but no road network mapping presented even for each decade)

• Lack of records per s. 163 Roads Act 1993 or those held prior & lack of graphics of said route entirety

• Lack of information on name rationalisation per that conducted or held by DMR of said route

• Fail to denote route

• Fail to denote Currawong Road – Taradale Road junction point

• Fail to search route known off Federal Highway alternatively as “Spring Valley Road, Tarradale Lane, Tarradale Road, being names also linked to road #103 Mulwaree Shire; with the Federal Highway recorded as #SH3

• Fail to know officer conducting search in order to liaise and/or to aid clarification

• Fail to provide documents underpinning veracity of statements made

• Fail to furnish RMS (RTA/DMR) – Local Government communication and that had with other parties about said road and/or access ramp eg Mulwaree Shire/Palerang Council/Upper Lachlan Council/ and other parties

• Fail to furnish information used to generate graphics “PIMGIS HW3 dated 6 April 2017”

• Fail to provide directive requesting above document or directive made to render it to me

• Fail to provide images or mapping of same site (as noted in “PIMGIS HW3 dated 6 April 2017” for July 2016; April 2016; April 2012

• Fail to provide information underpinning for graphic “Private Access Point” in PIMGIS HW3 dated 6 April 2017, but could have only been officially authorised

• Be a narrow search if conducted for a road, but using only one surname of an adjoining landholder

• Fail to table photos of said road and/or access point; given referencing to photos within Engineering Plans provided; and assuming highway to have been well documented prior to and after major upgrade in the 1980s

• Fail to confirm or deny information on Risk Assessment done by RMS for gates now sited in the middle of a stock grid – given Upper Lachlan Council infers such has been done in collaboration and common knowledge – with that information then being in a format to table to an insurer

• Etc.”

4. On internal review, further searches were carried out by the respondent and further information was located. The internal review decision dated 16 June 2017 granted access to all information which was identified, in full.

5. On 21 July the respondent received a request from the applicant containing additional requests.

6. The applicant also applied for external review by the Information Commissioner on 5 August 2017.

7. On 8 August 2017 the respondent made a supplementary decision in response to the applicant’s request of 21 July, stating that there were no additional documents to produce.

8. On 12 September 2017 the Information Commissioner issued a review report which stated:

“The review of the Agency’s information and decision concluded that its decision is justified.

The reviewer makes no recommendation to the Agency.”

The scope of the application

9. The application to this Tribunal was lodged on 27 October 2017 and was in the following terms:

“IPC failed to gleen (sic) from RMS, as did RMS in their Initial and Internal Review, critical information pertient (sic) to my original request, that is, all information regarding Taradale Road (that would be held per Roads Act 1993 s. 163, s.248, s. 249 and accessible per s.228, s. 229 as RMS being the penultimate power.) Information on the access ramp – RMS indicated approx. 2012 that this was designed for rural access only – no support given for this Vs plans 1970s and 1980 indicative of “public road” access. RMS supplied only overview images post application inconsistent with request. Initial Response was woeful, Internal Review was better but incomplete.”

10. At a case conference on 23 January 2018 the applicant was directed to serve his evidence and submissions on or before 7 February 2018. On 20 February 2018 the proceeding was listed for determination on the papers without the need for a hearing.

11. The applicant, in his affidavit dated 31 January 2018, referred to “seven points of information” which he said he had asked for in correspondence with the respondent dated 6 and 13 December 2017.

12. The respondent disputes that all these matters are properly within the scope of the application.

13. The respondent has presented its case on the basis that the applicant wishes the respondent to conduct further searches, including for:

1. Information about Taradale Road and the “controlled access point” or “private access point” referred to at paragraphs 21 to 26 of the applicant’s affidavit;

2. Electronic searches using various terms, personal names, and locations as set out at paragraphs 58 and 59 of the applicant’s affidavit;

3. Searches for documents regarding a development application at May’s Lane;

4. Searches for documents, including maps, surveys and correspondence pre-dating the “dual-carriage upgrade” of the Federal Highway.

14. The respondent maintains that it has conducted adequate searches for the information requested by the applicant and it is not obliged to undertake any further searches.

15. I have decided to consider the points which the applicant submits should be considered and which the respondent submits are outside the scope of the application. I have made this decision because one of the issues to be determined is whether the applicant can demonstrate that any further information exists, and in my view the points are relevant to this issue.

The issues to be determined

16. Section 53 of the GIPA Act 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."

17. Whether a search has been reasonable is determined by the answer to two questions:

1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so,

2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of a particular case.

(Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, at [19], as applied by this Tribunal in relation to the now repealed Freedom of Information Act 1989 in Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18] and to the current GIPA Act in Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5).

18. As held by the Tribunal in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 at [19]:

“All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant’s suspicions and the adequacy of the agency’s endeavours to satisfy them. If left unsatisfied by the agency’s evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW).”

19. The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances. (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCAT 186 at [33-34]).

Whether there are reasonable grounds to believe that the requested information exists and is held by the agency

20. The respondent submitted that the applicant had not discharged the onus, as he had not put any credible material or submissions before the Tribunal that documents of the requested kind existed. This submission was however made before the applicant filed his affidavit. The respondent did not subsequently address whether the affidavit established any reasonable grounds to believe that the requested information existed and was held by the agency.

21. While some of the points made in the affidavit and the letter lacked clarity, I have summarised the main issues raised by the applicant as I understand them and addressed each of them in turn below.

(a) The respondent is required to keep records of classified roads under s 163 of the Roads Act 1993, therefore it should have such records in its possession.

22. Section 163 provides that a roads authority must keep a record of the public roads for which it is the roads authority. The respondent informed the Information Commissioner that it is not the roads authority for the Federal Highway, but it keeps records relating to the Federal Highway as it is a classified road. The respondent is responsible for determining the road work to be carried out on certain classified roads including highways and main roads (s 61 Roads Act). It therefore follows that there are reasonable grounds for believing that the respondent has information concerning works on the road in question. However, this alone does not establish reasonable grounds for believing that it holds more information within the scope of the application than has been produced.

(b)   The respondent has elected not to provide “graphics” of the information requested but instead provided a customised graphic of the private control access point.

23. An agency may respond to an application by creating a new record of the information sought, although it is not required to do so (s 75, GIPA Act). The only reference I have found in the papers which could relate to the “customised graphic” is an image of the “junction point.” The applicant stated to the Information Commissioner as part of the external review that this image did not meet his requirements, as it was not created prior to the date of his request. The respondent advised that it came from the Geographic Information System which updates automatically, and that other images provided in the internal review showed the location prior to 2012. This point does not demonstrate reasonable grounds to believe that further earlier images of the same kind could exist beyond what has been provided.

(c)   The respondent should give the applicant a reasonable opportunity to amend his application, as the applicant can contribute further names which will narrow the scope of a keyword search.

24. The applicant has already had the opportunity to provide information which has been used for additional keyword searches. As part of the internal review, keyword searches were undertaken. Also as part of the review undertaken by the Information Commissioner, the applicant was asked why he believed further information was held. He provided information concerning correspondence with landholders which was used for keyword searches by the respondent without result. As part of its supplementary decision, the respondent undertook additional searches based on terms provided by the applicant on 21 July 2017. No additional information was located. This point does not assist the applicant.

(d)   The respondent has not produced any maps, surveys or inquiries with local stakeholders concerning the access point to the road.

25. The applicant argues that the respondent has not produced any maps or surveys, or any enquiries made by local stakeholders. This is not correct. The list of information includes a number of plans and maps. The applicant has not provided any evidence which would indicate that surveys of the land in question should be held by the respondent above and beyond what has been produced. Correspondence with the applicant (who is, as I understand it, a local stakeholder) was located. The applicant has assumed that other persons and local authorities would have raised issues with the respondent regarding this road. But he does not provide any evidence of any rule or process which would require this to take place or for such information to be placed with the respondent.

26. At paragraph 59 of his affidavit the applicant says that he could contribute other names of persons who are potentially such stakeholders, however there is no evidence which would indicate that consultations took place with those persons or those persons made enquiries with the respondent.

(e)   The applicant relies on seven points made in his correspondence with the respondent dated 6 and 13 December 2017 as follows:

(i)   The respondent would have had access to mapping and aerial imagery between 1960 and 2010 of the junction of Taradale Rd with the Federal Highway.

27. The applicant has relied upon a letter dated 14 April 1972 from the then Department of Main roads to a PJ Fisher. This letter refers to investigation of the proposed route for a motorway over part of the Federal Highway having been carried out mainly by the use of aerial photography. This indicates aerial photography was used by the then Department of Main Roads in 1972 for major works. However in my view it is insufficient to establish that there are reasonable grounds for believing that aerial photography would be used as part of constructing an access ramp or gates at the location in question, and therefore does not support a reasonable belief that the respondent would hold any such photographs.

(ii)   The respondent would have used topographical mapping or engaged surveyors within that 1960-2010 period and therefore maps should exist.

28. For the applicant to claim that the respondent would have used surveyors and topographical mapping is not sufficient to establish reasonable grounds to believe that records of that nature exist and are held by the respondent.

(iii)   The respondent had previously liaised with various local authorities “about increase usage of the access ramp” and therefore communications with local authorities on that subject should exist.

29. In relation to the applicant’s claim that consultation took place with various local authorities about increased usage of the access ramp, the applicant himself states that the consultation he refers to occurred more recently and therefore it is not self-evident that similar consultation took place in earlier decades as he claims.

(iv)    “RMS/DMR may have records per DA discharge by Peter Hoskins, who provided access to several parcels of land through a DMR installed access”.

30. In relation to the reference to a Peter Hoskins, the applicant is only able to state that the respondent may have such records. This is insufficient to establish reasonable grounds for their existence.

(v)   It has been demonstrated that “RMS has had contact from parties for and against usage of access.”

31. The applicant’s affidavit makes a number of inferences about the existence of further information. For example he states that current or former land holders “may have been objectionable to public use” of the road; states “it is assumed” RMS based some of its decisions on information exchanged with a Council; and assumes that a description of a private access point on a document evidences that there must be information from a local stakeholder regarding the privacy of that access. The respondent also states that he relies on the results of his applications to show that there was such consultation and correspondence. That is, the fact that the respondent found some such information is evidence that there is more such information which has not been provided. I do not accept that this alone is sufficient to establish the required reasonable grounds.

(vi)   Information on signage installed for the highway upgrade should exist.

32. I note that the original application was for information concerning the installation and location of 4 “recently installed signs”. From the applicant’s affidavit, I understand that the highway upgrade took place in the 1980s. On internal review, information on signage was provided by the respondent, dating from 2016 and 2017, which responds to the original request. The applicant has not provided any information to indicate that other information on earlier signage exists, and in any event it falls outside the scope of his application.

(vii)   Satellite imagery of the access point from 2010 should exist.

33. There is no evidence to support this claim.

34. Accordingly, I am not satisfied that the applicant has established that there are reasonable grounds to believe that the requested information exists and is held by the agency.

Whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances

35. It is not strictly necessary to address this point, given my findings on the first issue. However, for completeness and because it is to some extent relevant to whether there are reasonable grounds for believing that further information exists and is held, I note that the evidence (an affidavit from Ms McCarthy, who conducted the internal review) demonstrated that at least 10 hours was spent searching for the information sought as part of the process to make the original decision, and a further 20 hours was spent by six officers undertaking searches by keyword, actual record searches and drawing searches.

36. In response to the applicant’s supplementary request, additional searches were undertaken, but no additional information was located. Ms McCarthy estimated that these additional searches took at least six hours.

37. Ms McCarthy annexed to her affidavit the responses from the officers regarding the searches. The evidence indicates that the following searches were carried out:

1. The Plan Manager conducted keyword searches for words including Taradale and a number of other place names referred to by the applicant, as well as Road number 103, and drawings of the Federal Highway in the local government area of Mulwarree, Gunning and Goulburn Mulwarree. 50 pages were found.

2. The Geographic Information Systems officer searched a location referred to as Salesforce, for references to the applicant, Taradale, Taradale Road, Spring Valley Road, and Taradale Lane and noted that correspondence located was correspondence from the applicant. Four records were found.

3. The Acting Manager Land Use searched a number of maps, a computer drive and a Geodatabase using lot and DP identifiers as well as RMS land use reference numbers, and located 16 records.

4. The Area Maintenance Manager searched a number of locations using key words and development application and road identifiers and located 12 records. The manager noted that documents may exist in other filing areas that he was not aware of which were most likely filed before the implementation of the system searched (the Objective system).

5. The Acting Manager Network Safety Services searched the Objective system and emails for references to Taradale Road and the Federal Highway and located 14 documents.

6. The Property and Acquisition Manager searched property Objective records and archival property paper files using property information search terms over 10 hours and located 58 records.

38. The agency is obliged to conduct 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 (s 53(2) and (3)).

39. The reasonableness of the search will be judged on the circumstances (Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163).

40. In Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187, O’Connor DCJ held:

“What constitutes a ‘sufficient search’ will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency’s recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant.” (at [30])

41. I note that the Area Maintenance Manager noted in the search record provided to the applicant as part of the internal review decision, that documents may exist in other filing areas that he was not aware of which were most likely filed before the implementation of the Objective system. However, searches were also conducted in other areas by five other officers.

42. In addition, the applicant had the benefit of a supplementary search conducted by the respondent’s officers after the internal review, which addressed further questions put by him in writing. Therefore he had an additional opportunity to address any inadequacies in the searches conducted. Those searches did not locate any information not already provided.

43. On the basis of this evidence as to the time expended, the attempts to obtain additional clarity and identifiers from the applicant, the identifiers used to search, the time spent searching and the areas searched, I am satisfied that the search by the agency was reasonable in the circumstances. Accordingly the internal review decision of the respondent should be affirmed.

Order

1. 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: 08 March 2018