Fisher v Upper Lachlan Shire Council

[2019] NSWCATAD 185

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Fisher v Upper Lachlan Shire Council [2019] NSWCATAD 185
Hearing dates:	19 August 2019
Date of orders:	09 September 2019
Decision date:	09 September 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R L Hamilton S.C. Senior Member
Decision:	The decision of the agency is affirmed.
Catchwords:	ADMINISTRATIVE LAW - freedom of information - government information public access - requirement for an advance deposit against processing charges
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151
Category:	Principal judgment
Parties:	Mr J Fisher (Applicant) Upper Lachlan Shire Council (Respondent)
Representation:	Counsel Mr Ward (Respondent)   Solicitors: Applicant (Self-represented) Pikes & Verekers (Respondent)
File Number(s):	2019/00066275

REASONS FOR DECISION

1. This is a matter of very limited compass. It involves an aspect of the Government Information (Public Access) Act 2009 (GIPA Act) (future references are to provisions of the GIPA Act).

2. In November 2018 the applicant made the subject GIPA Act application to the Upper Lachlan Shire Council (the agency) for access to 12 categories of information covering the period 2002 to the present, concerning roads relevant to his property.

3. This part of the dispute concerns the reasonableness of the quantum of an estimated processing charge; 50% of which was required by the agency to be paid by the applicant as an advance deposit against processing charges already incurred and estimated to be incurred in responding to the access application.

4. The applicant made another GIPA Act application in 2016 concerning the same subject matter (Exhibit R1) and decisions were made to supply various documents to him pursuant to that application (Exhibits R2 and R3).

5. The agency has spent 12 hours already on the 2018 application under consideration here, and conservatively estimates it will spend a further 17 hours. It can decide to charge $30 per hour for its work on processing the application (s 64(1)). It can, by notice, require an advance deposit (s 68) capped at 50% of the amount it estimates to be the total processing charge (s 69).

6. The agency has required the applicant to pay $420, after allowing for his $30 application fee already paid (s 64(3)).

7. The agency can refuse to deal further with the application if the applicant fails to pay the advance deposit within the time specified (s 70(1)) (being a minimum of 20 working days after the notice is given (s 68(3)), unless the applicant applies for a review under Part 5 GIPA Act of the decision to require the payment of the advanced deposit within the time required for payment.

8. The agency’s notice of decision was dated 5 February 2019. The decision stated that a good deal of the information sought by the applicant was already available to the applicant as a result of the decisions on his 2016 GIPA application. The decision further noted that the agency would need to complete an additional search on six categories of records to check on information relating to the time period between 2016 and 2018 and also claimed legal professional privilege in respect of some information in one category. The advance deposit was required to be paid by 5 March 2019. The applicant lodged his application for review of the decision on 28 February 2019.

9. The agency’s decision to impose a processing charge, or to require payment of an advance deposit is reviewable under Part 5 of the GIPA Act (ss 80 – 112A) (s 80(j))

10. The Tribunal has jurisdiction to review the agency’s decision pursuant to s 100 GIPA Act.

11. The Tribunal’s review under Part 5 for failure to pay an advance deposit is required to be a review of both the agency’s decision to refuse to deal further with the application and the decision to require an advance deposit s 70(3).

12. The application for review relevantly stated in the grounds for seeking a review of the agency’s advance deposit decision as follows :

“Charges – illogical for public readily accessible docs (e.g. Parish Maps/SIXMAPS; review prior GIPAA given vacuum of info post 2016; Initial consideration?? Given Initial response = 0”.

13. The applicant’s grievance stated at the hearing appeared to be confined to the quantum of the proposed processing charge, and consequently the quantum of the advance deposit.

14. On 11 June 2019 the Tribunal ordered that this hearing be confined to the issue of the imposition of a processing charge as a reviewable decision under s 80 (j) of the GIPA Act.

15. The applicant submitted that a decision to impose processing charges cannot be made until it is known how long it has (actually) taken to deal with the application, which is when the application is decided. The advice to applicant on the estimated processing charges is not a decision to impose such charges, but is an indication of what those charges are likely to be.

16. The applicant relied on National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 at [33].

17. I accept the applicant’s submission in this regard, and for the purposes of this hearing will treat the applicant’s review application relating to “Charges” as seeking review of the decision to require payment of an advance deposit.

18. As the applicant has applied for a review of the decision to require the advance deposit within the time required for payment of that advance deposit there is no cause to review any decision of the agency to refuse to deal further with the application (see ss 70(1) and (3)).

19. The applicant conceded at the hearing that he no longer sought access to the first five categories of information in his application.

20. His argument concerning the quantum of the estimated processing charge and requirement for advance deposit was principally based on a perceived discrepancy between the amount of time estimated by the agency to respond to a subpoena for production served by his solicitors in another matter. The agency estimated that the time involved in performing the required searches for the subpoena would be 15 hours for documents dated 2006 to 2018, and 14 hours if the time period was reduced to 2014 to 2018 (Affidavit of Mr B Johnston at pars 11 and 13). I was informed that the subpoena for production was withdrawn and no action was taken on it.

21. Mr B Johnston, the agency’s Manager of Finance & Administration put on an affidavit annexing the notice of decision on the GIPA Act application and a detailed time sheet showing the amount of work performed on the access application up to 5 February 2019 and an estimate of time involved in finalising the decision (which he described as a conservative estimate). He gave evidence of his long experience with the agency, and in dealing with other GIPA Act applications.

22. He also addressed the discrepancy in the estimate of hours dealing with the subpoena and dealing with this GIPA application.

23. Mr Johnston pointed out that the time period covered by the subpoena was shorter than this application; that the range of documents covered by the GIPA application is wider than that for the subpoena; that the subpoena specified particular email correspondence required; and that the subpoena covered 4 items compared to 12 in the GIPA application.

24. Mr Johnson was asked whether the applicant’s concession that five items were no longer pressed would reduce the amount of time required to process the application. His answer was that it might but probably only marginally. The Tribunal was also informed that the agency kept a detailed time sheet for work on GIPA matters which would be provided to applicants where a decision is made to impose a processing charge. If the processing charge was less than the advance deposit paid the balance would be refunded to the applicant.

25. It appears to me on the evidence that the agency has adequately explained the reasons for the discrepancy between the time estimate for the subpoena and for the GIPA application.

26. It also appears to me on the evidence that the agency’s estimate of the additional time to finalise the decision is reasonable. I am also satisfied that the applicant’s interests are protected by receiving a detailed time sheet, having the ability to challenge the imposition of a processing charge and to argue for a discount on certain grounds (e.g. s 66), and by the possibility of a refund of some of the advance deposit if the time estimate turns out to be excessive (s 71).

Order

1. The decision of the agency 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: 09 September 2019