Gates v Port Macquarie-Hastings Council

[2022] NSWCATAD 193

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gates v Port Macquarie-Hastings Council [2022] NSWCATAD 193

Hearing dates:

23-25 November 2020

Date of orders:

10 June 2022

Decision date:

10 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

(1)   The decisions made by the respondent in matters 2019/00041489, 2019/00120352, 2019/00120361, 2019/00120395, 2019/00120400, 2019/00120411, 2019/00120420, 2019/00120428 2019/00120431 and 2019/00403217 are affirmed.

(2)   In matter 2019/0012039:

(a)   The decision is set aside in part and in substitution it is decided (i) the respondent is to release 7 iterations of the 2016 Grader Programme as identified in evidence by Mr Prosser to the applicant; (ii) the applicant already has access to the Statewide Best Practice Manual.

(b)   The decision under review is otherwise affirmed.

(3)   In matter 2019/00120338:

(a)   The decision is set aside in part and in substitution the respondent is to release to the applicant the report from Jeff Roorda.

(b)   The decision under review is otherwise affirmed.

(4)   In matter 2019/00120405:

(a)   The decision is set aside in part and in substitution the respondent is to release to the applicant the documents attached to Exhibit R6 and Exhibit 7.

(b)   The decision under review is otherwise affirmed.

(5)   In matter 2019/120384 the decision of the respondent refusing to deal with the application is set aside and in substitution a decision is made that the information is already available to the applicant.

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – whether further information held – adequacy of searches - refusal to deal – relevant factors – aggregation of applications

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Government Information (Public Access) Act 2009

Cases Cited:

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5

Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211

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

Colefax v Department of Education and Communities (NSW) (No 1) [2013] NSWADT 42

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

Commissioner of Police v Danis [2017] NSWCATAP 7

Klaric v Commissioner of Police [2020] NSWCATAD 47

Miriani v Commissioner of Police (NSW) [2005] NSWADT 187

Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150

Ruyters v Commissioner of Police [2020] NSWCATAD 223

Saggers v Environment Protection Authority [2013] NSWADT 109

Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246

Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Category:

Principal judgment

Parties:

Steven Gates (Applicant)
Port Macquarie-Hastings Council (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/00041489
2019/00120338
2019/00120352
2019/00120361
2019/00120384
2019/00120391
2019/00120395
2019/00120400
2019/00120405
2019/00120411
2019/00120420
2019/00120428
2019/00120431
2019/00403217

Publication restriction:

Nil

REASONS FOR DECISION

1. Steven Gates and his family live on a property near Byabarra in the Port Macquarie-Hastings local government area. The property is located down an unsealed road. Mr Gates states that when he and his family moved to the property the road was in good condition but gradually deteriorated. He has had many dealings with the Port Macquarie-Hastings Council (the Council) about the condition and maintenance of the road and associated infrastructure.

2. In October 2018 Mr Gates lodged 16 applications with the Port Macquarie-Hastings Council seeking access to certain information under the Government Information (Public Access) Act 2009 (GIPA Act). Following discussions with Council staff, three applications were withdrawn and the scope of the remaining 13 applications was amended. In brief, each application related to information concerning unsealed roads within the Port Macquarie-Hastings local government area.

3. On 7 February 2019 the Council notified Mr Gates that it refused to deal with nine of the applications on the basis that dealing with the applications would require an unreasonable and substantial diversion of the Council’s resources.

4. On 14 February 2019 the Council made a decision in relation to the other four applications. As I understand it, these were the applications which Mr Gates had informed the Council were his priority. In respect of each application, Council decided:

• to provide access to some information;

• that some information was already available to Mr Gates; and

• refused to provide access to the remainder of the information on the basis that there was an overriding public interest against disclosure.

5. Mr Gates applied to the Tribunal for review of these decisions, initially only lodging one application but subsequently lodging review applications in respect of all 13 matters. To the extent that was necessary, the Tribunal extended the time for the making of the applications for review.

6. Mr Gates made a further access application to the Council on 26 August 2019. That application sought further information about aspects of Council’s works to unsealed roads and also sought access to a development application. In its decision of 17 October 2019 the Council released some information and determined that some information was not held by Council or was publicly available. The Council also imposed an amount of $300 as processing charges. Mr Gates has sought review of that decision.

7. In relation to those applications where the Council has made a decision, Mr Gates submits that the Council holds other information within the scope of his requests which should have been released to him. Where the Council has refused to deal with nine applications on the basis that dealing with the applications would require an unreasonable and substantial diversion of the Council’s resources, Mr Gates argues that it would not. Mr Gates also seeks review of the decision of the Council to impose processing charges in relation to his August 2019 application.

8. The decision on 14 February 2019 that there was an overriding public interest against disclosure of some of the information in the four determined applications was made on the basis that the information was personal informal information of third parties. Mr Gates has withdrawn that aspect of his review application.

Material before the Tribunal

9. The material before the Tribunal in these applications includes:

• the applications for review;

• a statement of Mr Gates 29 June 2019 as updated 23 October 2020, including 104 attached documents (A1-A104);

• a statement of Mr Gates dated 31 July 2020 as updated on 23 October 2020, including 78 attached documents (E1-E78);

• a bundle of documents filed by Mr Gates on 24 November 2020;

• submissions by Mr Gates as updated on 23 October 2020 and further submissions received 15 December 2020;

• bundles of documents filed by the Council on 22 May 2019, 12 May 2020, 13 November 2020 and 20 November 2020;

• statements by James Prosser dated 27 August 2019, 26 March 2020 and 20 April 2020;

• statement of Rebecca Olsen dated 8 April 2020;

• statement of Kirsty Callendar dated 20 April 2020;

• submissions and submissions in reply by the Council.

10. Given the sheer extent of the material filed, particularly by Mr Gates, it has not been possible to refer to every submission and every document provided. In the interests of providing reasons that deal with the issues between the parties, I have endeavoured to summarise the main relevant points.

The issues to be determined

11. While extensive documentary material has been filed in these proceedings concerning the 14 GIPA applications made by Mr Gates, there are only three primary issues for determination:

1. Whether the Council holds further information that falls within the scope of the access applications dealt with in matters 2019/00041489 (Council’s reference 18-15), 2019/00120391 (Council’s reference 18-16), 2019/00120338 (Council’s reference 18-17), 2019/00120405 (Council’s reference 18-22) and 2019/00403217 (Council’s reference 19-27).

2. Whether a waiver or discount should apply to the processing charges imposed in relation to 2019/00403217 (Council’s reference 19-27).

3. Whether the determination of the remaining nine applications – 2019/00120395 (Council’s reference 18-18), 2019/00120411 (Council’s reference 18-20), 2019/00120400 (Council’s reference 18-24), 2019/00120431 (Council’s reference 18-25), 2019/00120384 (Council’s reference 18-26), 2019/00120420 (Council’s reference 18-27), 2019/00120352 (Council’s reference 18-28), 2019/00120428 (Council’s reference 18-29), and 2019/00120361 (Council’s reference 18-30) – would involve a substantial and unreasonable diversion of resources.

12. In his statements and submissions Mr Gates raises matters concerning the conduct of the Council and its employees which he states warrant a referral to the relevant Minister. This issue is dealt with at the end of these reasons.

The relevant law

13. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

14. Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information, unless there is an overriding public interest against disclosure of the information. There is no dispute that the information sought by Mr Gates is government information.

15. A person aggrieved by a “reviewable decision” may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act (s 80 (c)). A decision that information is not held by an agency is also a reviewable decision (s 80(e)).

16. The Tribunal’s function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.

17. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Council: s 105(1) of the GIPA Act.

Does the Council hold further information?

18. Mr Gates asserts that the Council holds further information falling within the scope of the four applications in relation to which the Council made a decision on 14 February 2019 and in relation to the later application decided on 18 October 2019.

19. The Council states, and it is implied in its decisions of 14 February 2019 and 18 October 2019, that no further information responsive to Mr Gates’s access requests is held by the Council. The burden is on the Council to prove that the government information applied for is not held by it.

20. Mr Gates makes a number of submissions in which he contests the accuracy of the information with which he has been provided in response to his requests. In others he criticises the Council for not providing an explanation of some of the information released to him. He also seeks to question the conduct of the Council and raises broader questions about how the Council performs its functions relating to road maintenance. As was pointed out to Mr Gates at the hearing, the Tribunal is not concerned with whether there are errors in the information provided in response to an access request or whether an agency’s decisions, as revealed through that information, were reasonable (see Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 at [26]). In this matter, the issue that is raised by the applications is whether the Council holds further information responsive to the requests.

21. Section 53 of the GIPA Act imposes an obligation on an agency to undertake “such reasonable searches as may be necessary to find” the requested information: s 53(2). The obligation extends to searches using “any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically”: s 53(3). The obligation to search does not extend to searches that would require a “substantial and unreasonable diversion of the agency’s resources”.

22. As was stated by the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [43] whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether a decision that “information is not held” is the “correct and preferable decision”. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency.

23. In Wojciechowska at [44] the Appeal Panel summarised the Tribunal’s task in reviewing a decision of an agency that it does not hold the information sought as follows:

1. identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

2. determine whether the agency has proved any relevant factual issues on the balance of probabilities;

3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

4. applying those findings, decide what the correct or preferable decision is;

5. affirm, set aside or vary the agency’s decision: s 63(3) of the ADR Act.

24. As noted above, Mr Gates’s original applications to the Council were refined after discussion. In his October 2018 requests as amended (see A28 attached to his submissions) he made detailed requests for access to information. Each of the four applications in question and the 2019 application are dealt with below.

The applications and Mr Gates’s submissions

2019/00041489 – GIPA application 18-15

25. In this application Mr Gates sought for the financial years 2009/10, 2012/13, 2016/17 and 2017/18 a list by financial year detailing:

1. locality (ie Elands, Comboyne);

2. name of road;

3. classification (priority unsealed road, local unsealed road, access track, paper track, fire trail); and

4. if available, the length of the unsealed sections subject to grading.

5. If available:

1. Whether the road is:

1. On the Asset Register

2. Formed or other

3. Asset Value of the road

26. The Council released 10 documents to Mr Gates in response to this application.

27. Mr Gates states that some information he sought has not been provided, for example, there are no documents providing details about classification of priority unsealed road, local unsealed road, access track, paper trail, fire trail. He also states that some information is misleading or incorrect or documents are incomplete in that they do not contain the same information as other documents he obtained outside the GIPA process. In his submissions Mr Gates makes various statements about what should be contained in the information that he has obtained but which was not provided to him.

2019/00120391 – GIPA application 18-16

28. In this application Mr Gates sought, for the period March 2018 to July 2018 “any internal management policy, procedure, guideline, standard, instruction or similar which is used to assess and determine the ‘classification’ of an unsealed road for the purposes of the grading program”. He also sought for the financial years 2010/2011 to 2017/2018:

1. Any document detailing the unsealed roads “annual program for grading” in the period of information; and

1. the document should detail: name of road, location, length of grading, road with, Greater Crew (i.e. 1-4);

2. the document should contain the dates the works were completed in that year;

3. the document should list any additional unsealed roads graded outside the “annual programmed list” in each year

29. Mr Gates also sought for the 2012/2013 financial year the budget breakdown which shows how Council arrived at the figure of $500,000 for an additional grader crew in a submission it made to IPART that year.

30. Mr Gates also sought a copy of a report in relation to “a comprehensive review of Council’s entire grading programme” which occurred in 2015. In addition for the financial years 2014/2015 to 2017/2018:

…the Asset Register for Unsealed Roads which should identify as much information as possible about each road. Without knowing the extent of information that is captured and can be produced: name, location, length, length graded, private or public road, asset value, classification (minor/ major etc), Formed or Unformed etc.

31. Council provided 13 documents to Mr Gates in response to this request. It also decided that some information was already available to Mr Gates as it is available online. Mr Prosser, Operations Manager, Transport and Stormwater Network, states that additional information was later released to Mr Gates in response to this request following comments made by Mr Gates in statements he provided to the Tribunal, although he states that the additional information in fact falls outside the terms of the request (Prosser affidavit 27 August 2019).

32. Mr Gates complains that some documents have been provided to him which are outside the date range of his request or are not relevant. He also states there are missing documents in that no information was provided in relation to certain aspects of this request. Again he states that there is conflicting information in the documents or differences between the documents he has been provided with and those he obtained elsewhere.

2019/00120338 – GIPA application 18-17

33. In this application Mr Gates sought details of the budget and expenditure for unsealed roads for all financial years from 2004/2005 to 2016/2017, with the exception of 2006/2007 and 2007/2008. He indicated that the information he sought was so he could ascertain:

• what the budget is for unsealed roads and the different work types (sub-accounts) which comprise it, such as grading, roadside slashing, vegetation pruning, gravel re-sheeting, culvert and drains etc;

• the expenditure against each budget amount in the financial year;

• the expenditure of special rate variation funding components in a financial year

• any under or over expenditure in a financial year (by sub account) and identify where those under expended funds have been allocated to or deferred to (for example added to next financial years accounts or diverted to a different account.

34. The Council located one document that fell within the scope of the access request and provided it to Mr Gates.

35. Mr Gates states he was provided with information concerning the budget and expenditure for the sub-accounts of gravel sheeting, maintenance grading and potholes/other unsealed maintenance but was not provided with detailed information relating to all sub-accounts. He also states some information with which he was provided is different to information contained in other documents he had obtained by other means. He alleges the Council has deliberately withheld information and has not provided the information he sought.

2019/00120405 – GIPA application 18-22

36. This request sought:

• copies of the “Risk Rating Assessments” for the unsealed road which provides access to Mr Gates’s property for the financial years 2011/2012 to 2016/2017;

• the annual total cost of employing the officer who was engaged to assess the condition of council roads for the first full year of employment and, if the position still exists, the most recent full year total cost;

• a “Report on Unsealed Roads” compiled by Jeff Roorda and Associates in 2015 and a report titled “Back to Basics” compiled by the Council in about 2009.

37. The Council provided 38 documents to Mr Gates in response to this access request. It also decided that some information was already available to Mr Gates as it is available online. The 2015 report by Jeff Roorda was not initially located by Council using relevant search terms. It was later located using a different search term and provided to Mr Gates (Prosser affidavit 27 August 2019). Mr Gates states that the fact the report was provided later demonstrates that the Council’s searches were inadequate.

38. Mr Gates states that some of the requested information is missing.

Council’s response

39. Mr Hancock, formerly an officer of the Council, and Mr Prosser provided evidence about the searches undertaken for information falling within the scope of the requests. Ms Olsen gave evidence about additional searches she had conducted while the matter was before the Tribunal.

40. Mr Prosser gave extensive evidence in response to Mr Gate’s detailed submissions about information he believes is missing from the information provided in response to the four access requests. In brief, Mr Prosser states that some of the detailed information sought by Mr Gates is simply not held in that form by the Council. He states that, in some cases, for example in relation to information sought in application 18-22 about certain costs, an analysis could be conducted to obtain the information but the information is not readily available. Furthermore, documents would need to be created to analyse the information or are outside the scope of Mr Gates’s requests.

41. Rebecca Olsen, Director, Corporate Performance at the Council states that to obtain the level of granularity sought by Mr Gates, particularly in relation to financial records, Council would be required to create new records or new information by calculating it from records held by Council. It would also be time consuming. For example, Ms Olsen states that in relation to Mr Gates’s request for information about the budget and expenditure for unsealed roads and the different work types, Council has some 47,000 possible combinations for work orders and tasks for local roads. She states that to generate the costs on a work order would be onerous and significantly burdensome.

42. In her affidavit Ms Olsen sets out various means by which some of the information sought by Mr Gates could be obtained. In many instances new reports would need to be created, including adding information in by hand, and in others information is not captured in the detail required by Mr Gates. Mr Prosser agrees with her assessment.

43. Issues concerning Council’s assets register took up some time during the hearing, as did the Council’s grading program for unsealed roads. Mr Gates was particularly critical that he had not been provided with information for the periods he specified in his requests. The evidence of both Ms Olsen and Mr Prosser is that these matters are dealt with in live databases which are constantly updated. Reports cannot be run for each financial year and only a point in time report is able to be provided.

44. I note that in relation to the grading program (dealt with in 2019/00120391) when questioned by Mr Gates at the hearing, Mr Prosser referred to 7 versions of the program that had been saved in 2016. While the Council contends that these fall outside the scope of the original access application which dealt with a report of a 2015 review, the Council is happy to release these documents to Mr Gates.

2019/00403217 – GIPA application 19-27

45. Mr Gates sought access to information in relation to six specified items or categories of information. These related to grading works, roadside weed spraying and mowing and a development application for a neighbouring property as well as to a manual titled “Statewide Mutual Best Practice Manual – Roads”. He was provided with access to some 44 documents in response to the request.

46. After receiving a copy of a statement Mr Gates filed in these proceedings, the Council conducted additional searches and provided a further four documents to Mr Gates. An additional document was provided on the second day of the hearing. Mr Prosser stated that this document had not been provided previously as he had misunderstood this aspect of Mr Gates’s access request.

47. Mr Gates believes that the Council holds further information in respect of three of the items in his original request. Those items are:

• Item 1: information detailing the grader program from 1 June 2018 to 30 June 2019 and 1 July 2019 to 23 August 2019.

• Item 2: information relating to grading works for The Hatch Rd between 1 July 2018 and 23 August 2019;

• Item 4: information detailing the slashing/mulching/ weed roadside spraying programs for the 1999/2000, 2008/2009 and 2017/2018 years.

48. Mr Gates provided comprehensive submissions from which the following matters relevant to whether further information is held by the Council in matter 2019/00403217 can be distilled:

• Some of the information he has been provided with is inaccurate, contradicts other information or was not what was requested;

• Council must hold an accurate record of certain works;

• Logic dictates that there must be additional records in respect of some matters; and

• References in some of the documents he was provided with to other documents (with which he was not provided) shows that those other documents must exist.

49. Mr Gates was provided with electronic access to the information provided in response to his request. He states that attachments were referred to in some of the emails but those attachments were not provided to him. Mr Gates also states that he has not been provided with much of the information he sought.

50. Much of the submissions details what Mr Gates believes to be defects in management and accountability of the Council and its employees. While I understand his frustration with certain matters, whether the Council and its programs are well managed, whether decisions are made transparently or whether certain officers have acted in accordance with various standards of conduct, are not matters relevant to a consideration of whether further information responsive to his access requests exists.

51. Kirsty Callendar, the Council’s Governance and Legal Officer, sets out the searches she carried out to locate information in the Council’s records responsive to the access request. She also discussed the access application with Mr Prosser as he was the Council officer with knowledge and understanding of relevant documents in relation to Items 1 to 3 of the request. Ms Callendar contacted other Council officers from the relevant areas in relation to other items in the request. She details the steps that she took to identify relevant records, including a review of all the information she was provided by officers from the relevant subject areas. Ms Callendar then issued a notice of decision to Mr Gates on 18 October 2019. She states that the electronic copy of documents provided to Mr Gates included hyperlinks to all attachments.

52. Ms Callendar states that following receipt of a statement lodged by Mr Gates in these proceedings, she carried out further enquiry in relation to urban roads which she had not understood to be included in Mr Gates’s application. She then provided a further four documents to him in response.

53. Ms Callendar states that the documents that have been identified as responsive to the request were the only documents that were found during the searches conducted by Council. In relation to a request by Mr Gates concerning the distance and cost of weed roadside spraying for specific roads, she states that Council does not have such records in that form and would be required to create a new record to provide this information.

54. In relation to details concerning the Council’s grader programme as requested in Item 1, Mr Prosser states that as at 27 August 2019 (the date of Mr Gates’s request) there had been over 230 revisions to the Unsealed Roads Grading Programme. He states it is a live document which is used and updated continuously by staff with at least five different Operations Engineers entering data. Mr Prosser states that the document is merely a tool to help Council’s engineers manage physical roadworks and its contents in relation to distances and costs are not necessarily accurate.

55. In relation to Items 2 and 4, Mr Prosser states that, having regard to his knowledge of Council’s systems and his responsibilities, it is his belief that Council has produced all of the relevant information it holds falling within the scope of this access application.

56. Mr Gates also states that he should have been given an opportunity to refine his request, particularly in relation to Item 4 but Council refused to meet with him. It is not clear to me from the material lodged with the Tribunal that Mr Gates was denied any opportunity to refine his request. His access request was very detailed as to the information to which he sought access. Council did not refuse to deal with his application or require him to reduce its scope. In those circumstances, Council acted reasonably in dealing with the application before it rather than asking Mr Gates to provide further detail or refine the matters contained in his application.

Other submissions in relation to matter 2019/00403217

57. Mr Gates submits that the extraction of existing information in a database into a report is not the creation of new information. He also states that the production of documents following the decision that was made by the Council is evidence of a failure to complete reasonable searches.

58. Mr Prosser states that he has provided all information that he is aware of to Mr Gates. Mr Prosser was questioned extensively by Mr Gates at the hearing but remained of the opinion that he had provided what could be located in response to the five access requests which have been determined by Council. He acknowledged that some information which was not relevant to specific items had been provided and stated he “was just trying to help”. In relation to other specific items he maintained that Council did not hold the information.

Reasonable searches

59. An agency is required to carry out reasonable searches to locate information responsive to an access request. What constitutes a reasonable search will vary with the circumstances, however, key factors include the clarity of the request, the way the agency’s record keeping system is organised and the ability to retrieve any information that is the subject of the request: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. That there may be some weaknesses in an agency’s searches or failures in recordkeeping within the agency, does not necessarily lead to the conclusion that the search has not been reasonable: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49].

60. While some documents relevant to Mr Gates’s request were not identified until after the Council made its decision, I am not satisfied that this establishes that other material exists (see also Klaric v Commissioner of Police [2020] NSWCATAD 47 at [69]). Vagaries or errors in the Council’s record keeping do not mean that reasonable searches have not been undertaken.

61. Mr Gates makes various assertions and speculates that certain information that he seeks should exist. However, such speculation is based on an incomplete knowledge of the Council’s systems and on assumptions about what information is captured in those systems. In particular, I note that Council is not required to create records in order to satisfy an access request (s 75 of the GIPA Act). In a number of instances, contrary to the submissions of Mr Gates, I am satisfied that the Council would be required to create records to satisfy Mr Gates’s requests. The manipulation of data in a database or across various databases, including the addition of further information by hand, in order to create a record that satisfies the request is not what is envisaged under the GIPA Act.

62. It remains to consider whether in all the circumstances the search efforts made by the Council to locate the requested information have been reasonable. The evidence of Mr Prosser, Mr Hancock, Ms Olsen and Ms Callendar identifies the steps which were taken to identify information caught by the access requests made by Mr Gates. This involved searches of the various databases and other records. Relevant subject areas within Council were tasked with locating relevant information.

63. I am satisfied that the searches that were undertaken by the Council were reasonable. Undertaking additional searches would involve a substantial and unreasonable diversion of resources of the respondent, and accordingly need not be undertaken (see Klaric at [71]). I am therefore satisfied that the decision that the Council does not hold information is justified.

Refuse to deal

64. The Council has refused to deal with the other nine access applications made by Mr Gates. In accordance with s 60 of the GIPA Act an agency may decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(a) is relevant to this application and provides that an agency may refuse to deal with an access application where dealing with the application would require an unreasonable and substantial diversion of the agency’s resources. In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided (s 60(2)). Ordinarily, an agency must decide an access application within 20 working days after it receives it (s 57(1)).

65. Sub-section s 60(1)(b1) of the GIPA Act is also relevant and gives an agency the power to refuse to deal with an access information if the applicant had previously been provided with access to the information under the GIPA Act. Whether a person has previously been provided with the information under the GIPA Act (or its predecessor, the Freedom of Information Act 1989) is a question of fact and a condition precedent to the exercise of the discretion to refuse to deal with the application.

66. In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel said at [43]:

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 of (sic) deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) … Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1) …

67. The Appeal Panel went on to say that when reviewing a decision based on s 60(1) the Tribunal “should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources” (at [49]).

68. Sub-sections 60(3A) and (3B) provide:

(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.

69. The matters which may be considered under s 60(3A) are non-exhaustive. The factors in s 60(3A) and (3B) draw on two previous cases which dealt with the factors to be considered in an assessment of whether an application would require an unreasonable and substantial diversion of an agency’s resources.

70. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] O’Connor DCJ stated that the matters relevant to such an assessment include:

(a) the terms of the request, especially whether it is of a global kind or generally expressed request; …

(b) 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 …

(c) 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

(d) the agency estimate as [to] 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

(e) 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

(f) the time lines binding on the agency …

(g) 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

(h) 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

(i) 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.

71. That case dealt with the former freedom of information legislation applicable in NSW prior to the introduction of the GIPA Act. In Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 the Tribunal confirmed that these matters remain relevant to an assessment under s 60(1)(a) of the GIPA Act, although it also found that the changed context of the GIPA Act, which requires that discretions under it are to be exercised so as to enhance its objects (s 3(2)(b)), could result in “differing weight and importance being accorded to the Cianfrano factors” (at [26]). Colefax also identified that the fact that an access applicant is seeking their personal information is a relevant factor in the determination (at [27]).

71. The principles espoused in Cianfrano and Colefax remain relevant to a consideration of whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources (Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [18]).

72. The tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency’s resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(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 (Ruyters at [24]).

73. Details of the nine applications are set out below.

2019/00120395 – GIPA application 18-18

75. Mr Gates sought access to policies, procedures or guidelines applying to “Unsealed Roads Roadside Slashing, Vegetation Mulching (tractor boom), culverts and Drains Under Roads, and Weeds Management” as at March 2018.

2019/00120411 – GIPA application 18-20

76. Mr Gates sought all reports, submissions, papers or documents between 30 July 2012 and July 2018 relating to:

1. The cost of grading a kilometre of unsealed road or similar;

2. The cost of gravel per tonne or similar;

3. The cost of re-sheeting a kilometre of unsealed road or similar;

4. The cost of a grader team for a year.

2019/00120400 – GIPA application 18-24

77. In this application, in relation to a policy on unsealed roads which he states the Council published in 2018, Mr Gates seeks copies of the documents set out below for the period from the time the policy “was first proposed at Council internally” to September 2018:

1. Unsealed Roads Gravel Re-Sheeting Programme (referred to in the Draft Policy)

2. All traffic modelling completed by unsealed road recording number of movements per day or week. This would include both desk top estimates and actual road sensors installed for that purpose.

1. NOTE: Council have stated they do not complete road sensing for vehicle movements on unsealed roads, however I note from the Grading Schedule submitted by Council in the 2017/18 IPART Submission at Attachment 8 allocated a “Road Hierarchy Total” to each road, and I seek this information by unsealed road and any documents providing instruction, policy or other for its use.

3. All reports, discussion papers, submissions, discussions or similar documents developed for the purpose of drafting the new Policy or to consider, understand and determine the potential content, range and or implications of the new Policy.

4. Any financial modelling completed on the proposed new Policy. This may show budget savings or cost effect of proposed Policy.

5. Any documents, in hard copy or electronic including material entered to computer systems, relating to:

1. Identification of:

1. Unsealed roads which may have their grading frequency changed

2. Unsealed roads which may have their Classification changed, i.e. from Local Road to Access Track

3. Any property that may be adversely affected by the proposed Policy.

4. Unsealed roads that may be sought to revert from Council to Private Road.

2019/00120431 – GIPA application 18-25

78. Mr Gates seeks a copy of the “Asset management Plan for the entire Unsealed Roads Network” for the years 2012 to 2018, although notes that, if the Plan is completely annually, only one year is required unless there has been a material change in the Plan.

2019/00120384 – GIPA application 18-26

79. In this request Mr Gates sought documents relating to maintenance requests made to Council in relation to the road leading to his property. For the period 2012 to 2018 he sought:

1. All maintenance requests (on line, email or letter) seeking or reporting maintenance to the road including grading, slashing, weed management, under road drains, road side drains, bridges, and the status of these requests, i.e. completed or not completed.

2. All internal documents, including emails or meeting notes, and all documents sent by Council to the person raising the maintenance request, including emails.

3. The maintenance records for all works completed by Council on the road identifying the works completed and date of works.

80. At the hearing Mr Prosser said that this information was in fact provided to Mr Gates in the response to his request 18-26.

2019/00120420 – GIPA application 18-27

81. In this application Mr Gates sought access to all correspondence or documents, electronic or otherwise, reports, meeting minutes or records of meetings or other records relating to:

1. Grading length of the road - the change of distance being graded and or decision to not grade the length of road;

2. Use of the road as a through road and or effect of not maintaining the road as a through road;

3. Maintenance of the river crossing on the road - to continue to maintain or cease maintaining;

4. Closure of the road;

5. Moving of the position of the road at Comboyne Rd from the western side of Bulli Creek Bridge to the eastern side;

6. Changing of the road sign to “private road”; and

7. The removal of the cattle grid from the road on the Bagnoo Rd side, and installation of a fence across the road at the same location.

2019/001204352 – GIPA application 18-28

82. Mr Gates sought Service Level Reports for each financial year from 2015 to 2018 for unsealed roads in the Council area.

2019/00120428 – GIPA application 18-29

83. In this application Mr Gates sought access to a copy of “Special Schedule 7”. As I understand it, Special Schedule 7 was referred to in a submission made by the Council to IPART for the 2017/2018 financial year. He also sought a breakdown of what was referred to in the IPART submission as an “infrastructure backlog” of $1.45M for unsealed roads Specifically, he sought a breakdown by road used to arrive at the $1.45m amount, detailing the road name, classification (access track etc.), location (i.e. Comboyne), length of road, budget or forecast amount for the backlog.

2019/00120361 – GIPA application 18-30

84. This application relates to gravel re-sheeting on unsealed roads. Mr Gates sought a copy of any “policy, practice, procedure, guideline or similar document which specifies the re-sheeting frequency of gravel to Council unsealed roads”. He also asked to be provided with a list for each of the financial years from 2010 to 2018 for gravel re-sheeting applied to unsealed roads specifying:

1. The name of the road;

2. The location (i.e. Comboyne);

3. The length, width and depth of road re-sheeted;

4. The cost of gravel for that particular re-sheeting.

Time and resources required

85. Mr Gates submits that the Council has provided little or no information to enable a conclusion to be reached that dealing with the nine applications would require a significant and unreasonable diversion of the Council’s resources. He states there is no evidence that the Council has identified the likely quantity of documents involved or hours estimated to complete a search and review of documents.

86. Mr Gates has submitted an analysis of the Council’s handling of the four 2018 applications which the Council responded to. He argues that the amount of time said to have been taken in relation to these applications is excessive. By extrapolation he states that the estimates provided by the Council are manifestly excessive and not reasonable. Mr Gates also submits that the Council is a large organisation which is well funded and has ample capacity to deal with his GIPA requests.

87. Mr Prosser states that the undetermined access applications call for a large amount of information that is stored across different sections of the Council. He states that relevant records may be held by:

• Finance

• Assets

• Weed Management

• Development Assessment

• Recreation and Buildings (Parks and Gardens)

• Transport and Stormwater Network Planning Section

• Records

88. Mr Prosser states that a substantial amount of work and time would need to be expended in dealing with the access applications which are broadly framed and involve records held across Council. In addition to members of his own Operations Team, other officers within Council would be required to carry out reasonable searches.

89. Mr Prosser provides significant detail of the steps that would need to be taken in order to extract the precise information sought by Mr Gates. In some instances this would involve an examination of at least 170 work orders relating to unsealed roads within the Council’s unsealed road network and other related documents. In relation to some aspects of the access requests Mr Prosser gives evidence that it would require the creation of a new report as information is not held in the form sought by Mr Gates. He states that much of the information sought by Mr Gates spans a number of years and would involve searches across various Council systems. Personal information of others would need to be redacted. Mr Prosser estimates that dealing with the access requests would involve some 65 hours of his time. He notes that this does not include the time of other Council officers.

90. Mr Gates initially dealt with a Council officer named Jennifer Pike when he lodged his applications with the Council. Ms Pike left the Council’s employ in November 2018. Brian Hancock, who was previously Group Manager Governance and Procurement at the Council and who was the officer Mr Gates dealt with about the access applications following Ms Pike’s departure, provided an affidavit in these proceedings. Mr Hancock left the Council in June 2019 and was not able to be cross-examined on his affidavit. In his affidavit he notes the large number of documents which would be involved in dealing with the access requests. Mr Hancock states that the officers involved in collecting, reviewing and determining the four prioritised applications spent 96 hours of Council time working on the application. (The figure of 96 hours spent by Council in dealing with the applications was later corrected to 97.) Mr Hancock estimates that dealing with the remaining nine applications would involve at least a further 82 hours of Council’s time.

91. Ms Olsen agrees with the comments made by Mr Hancock about the nature and scope of the requests made by Mr Gates. She also estimates that it would take at least 82 hours to deal with the requests. She expects that, once work commenced, it is likely that dealing with the requests would take more than 82 hours.

92. Both Mr Hancock and Ms Olsen provided details of the resources the Council devotes to dealing with GIPA applications. Council’s Governance Team has a range of responsibilities. The team has four officers and one officer is responsible for dealing with GIPA applications. The officer also has responsibilities with regard to Council’s internal audit programme, the development and management of governance related policies and procedures, oversight of Council’s delegation framework and a variety of duties associated with general governance and compliance.

93. Ms Olsen provided statistics on the number of access applications dealt with by Council dating back to 2015. The vast majority of applications are dealt with informally and formal access applications under the GIPA Act range from 13 to 37 a year.

94. Both Mr Hancock and Ms Olsen are of the view that dealing with the nine undetermined access applications in light of the available resources and volume of material sought, including how material is stored, would result in a substantial and unreasonable devotion of resources.

95. Ms Callendar, who is the officer referred to by Ms Olsen who, among other things, deals with GIPA requests, said that it is likely that dealing with the requests would take considerable time. She also said that Ms Olsen’s estimate only dealt with her time and not that of other Council officers who would be involved in locating information responsive to the requests. Ms Callendar also stated that removing matter 18-26 (the matter where it is agreed that Mr Gates was provided with the relevant information in response to another request) from the task would only reduce the time necessary by a few hours.

Grouping of applications

96. The Council submits that it is appropriate to regard all of the applications as if they were a single application. Section 60(3) of the GIPA Act provides that in deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is entitled to consider two or more applications as the one application if the agency determines that the applications are related and are made by the same applicant. There is no question that the applications have been made by the same applicant.

97. Mr Gates states that each of these application should be considered on its own as to whether there is an unreasonable and substantial diversion of the Council’s resources dealing with them rather than grouping them together. In the alternative he suggests that there should be three groups. The three groups relate to broad subject matter: 1) the particular road leading to Mr Gates’s property, 2) unsealed roads policy, 3) special rate variation.

98. Whether or not access applications are related is a question of degree, with the assessment to be made in light of the circumstances of each case having regard to the purposes of the provisions of s 60 (see Colefax v Department of Education and Communities (NSW) (No 1) [2013] NSWADT 42 at [39]). It is the common subject matter of the access applications which justifies aggregating the applications (Colefax at [40]; Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 at [50]).

99. I note that all of the applications made by Mr Gates (with exception of the August 2019 application) were made on the same day. All of the applications seek information about unsealed roads, generally in relation to the same or overlapping financial years. While each may deal with different aspects of the Council’s roads program, the underlying subject matter of both the determined and undetermined applications is the same.

100. The suggested grouping by Mr Gates into three subject matter areas is, in my view, artificial and does not overcome the fact that the subject matter across all applications is common. As the Council points out, this artificiality is nowhere more apparent than in relation to application 18-22 (see exhibit A32) where Mr Gates groups the application 50% to the road, 25% to policy and 25% to special rate variation.

101. I am satisfied that, in deciding whether dealing with an application would require an unreasonable and substantial diversion of the Council’s resources, the 13 access applications should be considered as the one application.

Opportunity to amend the access applications

102. Mr Gates states that the Council failed to afford him a reasonable opportunity to amend the access applications prior to making a decision on the basis that dealing with them would be a substantial and unreasonable diversion of its resources. The evidence does not support this contention. It is clear that Council officers met with Mr Gates on several occasions and he was given every opportunity to narrow the scope of his requests.

Would dealing with the applications require an unreasonable and substantial diversion of resources?

103. Subsection 60(3B) provides that any consideration under s 60(3A) must, on balance, outweigh the general public interest in favour of the disclosure of government information and the demonstrable importance of the information to the applicant.

104. Mr Gates suggests that the Council has unlimited resources to deal with his applications. I am not satisfied that that that is the case. In keeping with the size of the agency, the Council has one officer, Ms Callendar, who deals with access requests. Determining such requests is just one aspect of her rather broad duties in relation to governance and other matters at the Council. In addition, the evidence establishes that various areas within Council would be required to have input into locating information relevant to the requests. These are operational areas which, as the evidence of Mr Prosser establishes, are devoted to the ordinary business of Council. Dealing with an access request would be a matter additional to normal operations.

105. The evidence of the Council witnesses is that considerable time would need to be taken to deal with the outstanding access requests made by Mr Gates. The Council submits that, cumulatively across various Council areas, the time needed would be in excess of 100 hours. This is in addition to the 97 hours already spent on dealing with the determined requests. Mr Gates queries these estimates and I agree that it is difficult to put a precise figure on how much time would be involved in dealing with a particular access request. However, the complex nature of the requests made by Mr Gates and the breadth of information he seeks indicate that considerable time would need to be spent in dealing with these requests. In my view, it is highly unlikely that the statutory timeframe within which a request should be dealt with could be met. In addition, Council offices would be diverted from their usual business to the detriment of ratepayers and the community.

106. I accept that the resources of the Council are not unlimited and dealing with this application would consume a substantial proportion of its resources. As was noted by the Appeal Panel in Danis, “[a]ccess applicants generally are assisted if agencies are not tied down by voluminous applications” (at [43]).

107. This is not matter where the information concerned is the personal information of Mr Gates. It is clear, however, that Mr Gates seeks the information in order to advance his desire that Council grade the road leading to his property. He has a personal interest in this issue and has gone to significant lengths to pursue it. Before the Tribunal, however, he stated that he is not in fact used the information he has been given to date to lobby Council in this regard. It is difficult to know what to make of this statement, but it perhaps indicates that his personal interest in the information is overstated.

108. Mr Gates also advances propositions in his submissions that the information is of importance to the broader public. He states that, in addition to the particular issues involving the grading of roads within the local government area, there is significant interest in the transparent functioning of Council and the reliability and accuracy of information it provides. Transparency and the proper functioning of an agency are, of course, important matters and what is relevant for the purposes of s 60(3B)(a) is the inherent public interest in the release of any government information rather than any particular public interest in release of the information concerned (Ruyters at [47]).

109. I am satisfied that dealing with the application would require an unreasonable and substantial diversion of the agency’s resources. I am further satisfied there is a general public interest in favour of the disclosure of government information and that the information is important to Mr Gates. On balance, however, I am satisfied that, having regard to the volume of the information involved, the time needed to deal adequately with the request and the cost of doing so and other relevant matters referred to above that these matters outweigh the matters referred to in s 60(3B).

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

Processing charges

111. Mr Gates asks that all processing charges in relation to the 2019 application be waived.

112. Section 64 of the GIPA Act enables an agency to impose a processing charge for dealing with a request for access under that Act. Sections 65 and 66 make provision for processing charges to be discounted by 50% in the case of financial hardship and where the information applied for is of special benefit to the public generally. Section 67 provides that an agency cannot impose a processing charge for the first 20 hours of processing time where the access application is for personal information.

111. The information sought by Mr Gates is not his personal information. Insofar as Mr Gates argues that the information is of special benefit to the public generally, he has not advanced any particular arguments in that regard other than general arguments as to public interest. As was stated in Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93 at [23], in determining whether information is of special benefit to the public generally, a decision-maker must decide whether he or she is satisfied that there is a benefit different from what is ordinary or usual to the general public, and thus not merely the private interests of the applicant alone. In this matter the requested waiver seems to be based upon the reasons underlying Mr Gates’s request for the information he sought in the GIPA application. That is, as he stated in his submissions of 23 October 2020, his desire to have the road leading to his property graded.

112. I am not satisfied that Mr Gates has established that the processing charge should be discounted.

Referral of Council employee under s 112

115. Under s 112 of the GIPA Act, if the Tribunal is of the opinion on the completion of an administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under the Act, the Tribunal may bring the matter to the attention of the Minister who has responsibility for the agency. Mr Gates asks that the conduct or actions of Mr Prosser be referred to the relevant Minister.

116. Mr Gates alleges that Mr Prosser was aware of certain information he had sought, knew the information he was releasing was in fact not correct and made a decision to provide it purporting it to be correct. Mr Gates states that Mr Prosser failed to advise him that the information was incorrect and therefore breached his duties of good faith under the GIPA Act.

117. In his submissions Mr Gates also makes a number of allegations against Council staff including that staff failed to publish open access information, failed to assist and facilitate his requests, altered or withheld information, failed to act in good faith, engaged in intimidating behaviour and generally acted contrary to the requirements of the GIPA Act and other legislation.

118. It is not particularly clear whether Mr Gates still pursues this referral. While I understand that Mr Gates disagrees with the approach of the Council in some respects and disputes the accuracy of information with which he has been provided, there is nothing in the evidence before me which would warrant a referral to the Minister. In particular, I am of the view that Mr Prosser has bent over backwards to assist Mr Gates with his enquiries and his applications.

Orders

1. The decisions made by the respondent in matters 2019/00041489, 2019/00120352, 2019/00120361, 2019/00120395, 2019/00120400, 2019/00120411, 2019/00120420, 2019/00120428 2019/00120431 and 2019/00403217 are affirmed.

2. In matter 2019/0012039:

1. The decision is set aside in part and in substitution it is decided (i) the respondent is to release 7 iterations of the 2016 Grader Programme as identified in evidence by Mr Prosser to the applicant; (ii) the applicant already has access to the Statewide Best Practice Manual.

2. The decision under review is otherwise affirmed.

3. In matter 2019/00120338:

1. The decision is set aside in part and in substitution the respondent is to release to the applicant the report from Jeff Roorda.

2. The decision under review is otherwise affirmed.

4. In matter 2019/00120405:

1. The decision is set aside in part and in substitution the respondent is to release to the applicant the documents attached to Exhibit R6 and Exhibit 7.

2. The decision under review is otherwise affirmed.

5. In matter 2019/120384 the decision of the respondent refusing to deal with the application is set aside and in substitution a decision is made that the information is already available to the applicant.

**********

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: 10 June 2022