Hanna v NSW Ministry of Health

[2019] NSWCATAD 21

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Hanna v NSW Ministry of Health [2019] NSWCATAD 21
Hearing dates:	1 August 2018; 5 September 2018
Date of orders:	24 January 2019
Decision date:	24 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The NSW Ministry of Health’s decision to refuse to deal with the Applicant's revised access application on the grounds that dealing with it would require an unreasonable and substantial diversion of its resources is affirmed.
Catchwords:	ADMINISTRATIVE LAW – government information public access - refusal to deal with access application - substantial and unreasonable diversion of resources
Legislation Cited:	Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997
Cases Cited:	Cianfrano v Premier's Department [2006] NSWADT 137 Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130 Commissioner of Police v Danis [2017] NSWCATAP 7 Public Service Association v Premier's Department [2002] NSWADT 277 Taylor v Destination NSW [2017] NSWCATAD 272
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Inas Hanna (Applicant) NSW Ministry of Health (Respondent)
Representation:	Solicitors: I Hanna (Self Represented)(Applicant) Crown Solicitor’s Office(Respondent)
File Number(s):	2018/00098043
Publication restriction:	Nil

Reasons for Decision

Introduction

1. These proceedings involve an application for administrative review of a decision of the NSW Ministry of Health (“the Respondent”) to refuse to deal with an access application made by Ms Inas Hanna (“the Applicant”) under the Government Information (Public Access) Act 2009 ("the GIPA Act").

The scope of the access application

2. The Applicant’s access application sought a range of information and was in the following terms:

"All communications about or concerning Inas Hanna (Inas Henien Hanna) whether verbally or in writing, in file or hidden in the classified sections or systems including but not limited to all correspondences, letters, queries, notes, file notes, phone conversation notes, advices conducted or sent or received internally or externally including but not limited to Northern Sydney Local Health District, Safe work NSW (WorkCover) other parties including but not limited to the following names (NSLHD Andrew Montegut, Vicki Taylor, Jane Street, Melissa Collins, Carol Pollack, Carol Parker etc.) (Safework Paul Covi, Damien Bromley. Etc.), (ministry of health Trevor Craft, Charlotte Roberts, Mary Foley, Julian Skinner, Victoria Monahan, Larne Phillips (state deputy - Karen Carshow), Ms Burley (her acting). It was found that in the 2 internal reviews conducted by the ministry of health the organisation deliberately did not do actual or proper search to continue to mislead the internal reviews, the applicant Inas Hanna and NCAT process to obstruct justice. I expect obstacles and hurdles from the ministry. Let us seek where the public interest resides."

3. The Respondent has not yet made a decision in regard to the merits of the request i.e. whether or not access should be given to any of the information sought. This is because the Respondent decided to refuse to deal further with the application.

The Respondent’s approach

4. Following a preliminary search for information that fell within the scope of the access application, the Respondent wrote to the Applicant and suggested that she re-scope her request to narrow the scope. The Respondent estimated that it would take more than 70 hours to locate the information and that further time would be needed to assess the information and to make a decision. The Respondent advised the Applicant that it regarded this amount of time as an unreasonable diversion of its resources.

5. The Applicant responded that she considered that the Respondent had over-estimated the time that would be required to deal with the access application. She did not take the opportunity to re-scope her request but asked that the information be released immediately.

6. The Respondent decided to refuse to deal with the access application on the basis that to do so would require an unreasonable and substantial diversion of its resources.

7. The Applicant sought review of that decision in the Tribunal.

The issues for determination.

8. The following issues arise for determination

1. What constitutes an unreasonable and substantial diversion of an agency's resources?

2. Would dealing with the access application constitute an unreasonable and substantial diversion of the Respondent's resources in accordance with section 60 of the GIPA Act?

3. Should the Tribunal affirm, vary or set aside the Respondent's decision?

Applicable Legislation

9. In accordance with section 60 of the GIPA Act, an agency may refuse to deal with an access application in prescribed circumstances. The power of an agency to refuse to deal with an access application is a powerful one and should be used only as a last resort after making every attempt to assist an applicant to narrow their request.

10. Section 60 relevantly states

60 DECISION TO REFUSE TO DEAL WITH APPLICATION

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

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

(b)   the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 ,

...

(d)    he information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,

...

(2)   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.

(3)   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 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

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

(5)   Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal.

(6)   An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.

11. Section 60(5) requires that the notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. An assertion without any explanation or supporting reasons will be insufficient to meet those requirements. In Taylor v Destination NSW [2017] NSWCATAD 272 Senior Member Dinnen noted at paragraph [32]:

In addition, whilst the reviewable decision referred to s60 of the GIPA Act as “the reason of dealing with this application would require an unreasonable and substantial diversion of the Destination NSW resources”, this is in the nature of an assertion without any explanation or supporting reasons provided as required by s60(5) of the Act. Whilst the Respondent has sought to characterise submissions and evidence filed in these proceedings as proof of its compliance with s60(5) of the GIPA Act, I reject those as irrelevant in circumstances where they have only been provided following the applicant’s request for administrative review by this Tribunal, for the purpose of these proceedings.

12. A decision to refuse to deal with an access application is a reviewable decision. The Tribunal has jurisdiction to review an agency’s decision where a person is aggrieved (sections 100 and 80(c) of the GIPA Act; and section 9 of the Administrative Decisions Review Act 1997).

13. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: section 63(1) of the Administrative Decisions Review Act.

14. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.

15. The function of the Tribunal is to hear matters de novo and to reach a view itself, unrestrained by the view taken by the primary decision-maker. The Respondent is not limited to the basis on which it made its original decision: Public Service Association v Premier's Department [2002] NSWADT 277 at paragraphs [57] and [59].

What constitutes an unreasonable and substantial diversion of resources?

16. The section 60 discretion to refuse to deal with an access application is based on an assessment of the resources that would be needed to deal with the application. It relates to the resources that are available to the Agency and the available resources are solely within the control of the Agency.

17. The GIPA Act does not define what is meant by 'an unreasonable and substantial diversion of resources', however the Tribunal has considered these concepts in matters under the former Freedom of Information Act 1989 and more recently in decisions under the GIPA Act.

18. In Commissioner of Police v Danis [2017] NSWCATAP 7 at paragraph [41], the Appeal Panel noted that:

"Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications ... An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. 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 …

19. In Cianfrano v Premier's Department [2006] NSWADT 137 (“Cianfrano”) at paragraphs [62] to [63] O'Connor DCJ identified a number of considerations that are relevant on any assessment of what constitutes an unreasonable and substantial diversion of resources. In Cianfrano O'Connor DCJ stated, references omitted:

62   As I see it, the factors that are relevant to an assessment of the kind required by this case, include:

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

(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 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.

63   This is, of course, not intended, in any way, to be an exhaustive list of possible considerations.

20. In Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130, the Tribunal confirmed that the considerations identified in Cianfrano remained relevant to the assessment to be performed under section 60(1)(a) of the GIPA Act. This approach has been adopted in other matters before the Tribunal.

Would dealing with the access application constitute an unreasonable and substantial diversion of the Respondent's resources?

The Respondent’s case

21. As noted, the Respondent refused to deal with the access application. A preliminary search revealed that the wide scope of the request meant that the time that would be required to undertake the searches would exceed 70 hours. This estimate was based on information provided by those who would be required to undertake the searches.

22. The Applicant did not narrow the scope of the request in response to the Respondent’s suggestion.

23. The Respondent relies on the evidence of Ms Elise McHugh - Senior Legal Officer and Senior Privacy Officer - part time, within the Respondent’s Legal and Regulatory Services branch. In relation to the issue of what resources are available to the Respondent to respond to GIPA applications Ms McHugh stated:

The Ministry recently filled new roles for a GIPA Act Manager and a GIPA Act Officer, who commenced on 14 May and 24 July 2018 respectively. Prior to this, there was one Senior Information Officer who was responsible for managing all GIPA Act related matters.

The Ministry's current GIPA Act Manager was not employed at the Ministry when this application was processed and the Senior Information Officer who conducted the review no longer works at the Ministry.

Between 1 July 2017 and 31 December 2017, the Ministry received 71 formal GIPA Act access applications requests and managed 19 third party consultation responses under the GIPA Act. The Ministry also has a general responsibility and role in overseeing contentious applications from NSW Health agencies. There are also numerous applications that are received and formally transferred to other agencies as they are more likely to hold the information. We also respond to enquiries about the GIPA Act on a daily basis.

24. In relation to the search procedures that the Respondent adopts in responding to GIPA applications Ms McHugh stated:

When a GIPA Act access application is received, as part of the assessment, an officer will usually conduct an initial search of the Ministry's document management system to see which parts of the Ministry may hold the information requested. Then the access application is sent to each relevant branch with a request to search that branch's hard copy and electronic files for the information requested in the application.

In addition, if any specific individuals are named in the access application, they may also be requested to search their emails and other records. The subject matter of the request is also considered in determining which branch may have the relevant records.

A GIPA Act officer does not have any capacity to perform global email searches, or to search the email folders of individual staff. Restricting searches to records saved on the document management system is likely to be inaccurate and miss documents that employees hold in their email records or in files on their desktops (for example). In addition, the document management system has different levels of access restrictions which limit the ability of a GIPA Act officer to conduct a search.

In this instance a preliminary review was undertaken of the records held within the Privacy Unit within the Legal and Legal Regulatory Services branch, due to the apparent breadth of the applicant's access application and the assumption that this Unit would hold a lot of the documents caught by the request. The time taken to search was estimated based on the email holdings of this Unit. An initial search returned 297 results. An estimate of 2 minutes per email was applied to perform an initial review each email. The "search" includes checking each result to determine it is in scope and has any content that might mean the Ministry needs to consult with a third party. The document then has to be "retrieved", in the sense that it has to be printed (in the case of electronic documents), filed and a schedule created to list the records.

+9I note the estimate of processing time prepared by Ms Monahan included in the internal review was based on searches of five email folders and the electronic document management system ("HPE Records Manager") of the Privacy Unit, being a single unit of the Ministry. It did not include searching hard copy files of this Unit or all other branches and units where records could reasonably be held.

Given the global nature of the applicant's request, it is difficult to determine precisely where responsive records might be held in the Ministry. However, the Ministry anticipates that, if it were required to deal further with the application, it would be reasonably required to conduct searches and review records from the following units/branches in order to fulfil the obligation to conduct reasonable searches:

•   Workplace Relations and Management Branch

•   Workplace Planning & Development

•   The Office of the Deputy Secretary

•   The Office of the Secretary

•   Legal and Regulatory Services

•   All of the six individuals who are or were Ministry employees named in the access application (4 of whom no longer work at the Ministry).

25. Ms McHugh noted that the Applicant’s access application expressly referred to information received from third party agencies and named individuals, including the Northern Sydney Local Health District and Safe work NSW. Ms McHugh explained the relationship between the Ministry and NSW Health agencies, including local health districts and she stated that the Ministry may hold information about matters concerning those agencies. She said that any information about or from a local health district, or any other agency or individual, may require third party consultation by the Ministry, which would add to the time it would take to process a GIPA Act application.

26. In relation to the steps that the Respondent would need to undertake in responding to GIPA applications following completion of the searches Ms McHugh stated:

… the GIPAA Officer or Manager will then need to review all of the search results and analysis provided by each branch, unit or individual in order to make a determination on whether access to the information should be granted or refused. This does not take into account any time needed to perform consultation with third party individuals or agencies.

As the GIPA Act Officer who oversaw the preliminary review has left the Ministry, I have not been able to properly ascertain details about how the estimate of time in the Ministry's letter of 7 December 2017 … was arrived at. However, I have obtained an updated estimate of processing time in consultation with the new GIPA Act Manager.

The Ministry's updated estimate of processing time has changed since Ms Monahan provided her calculation of the records held by the Privacy Unit. Based on the Ministry's current practice, the search and retrieval of the emails and electronic records would be calculated at approximately 1 hour total for 297 emails and HPE Document Manager Records, rather than the 10 hours calculated on the Record of Processing time ... It is unclear, but it appears that the previous calculation was done in error or was aiming to reflect the subsequent time needed for review by the GIPA Act Officer.

The estimated time to print, file, schedule, review and analyse each email and record for preparation of the material for the GIPAA Officer would be calculated in the vicinity of 2-5 minutes per document. Hence, a range that more accurately reflects the searches would be approximately 10hrs - 25hrs.

This calculation is based on a preliminary search, collation, scheduling, review and analysis by a single employee within the Privacy Unit who has been tasked with responding to a request to search. As noted above, at least five more units or branches of the Ministry would need to complete these tasks, as well as searches in relation to the six named individuals. The records would then need to be reviewed by the GIPA Officer for the purposes of making a determination under the GIPA Act. It has been estimated by the current Manager that the total estimated time to comply would still be in excess of 40 hours.

27. The Respondent notes that Ms McHugh’s revised estimate of processing time is in excess of the 40 hours referred to by O'Connor DCJ in Cianfrano.

28. The Respondent also suggests that the current access application seeks information relating to substantially the same core issues as other applications commenced by the Applicant. It submits that it would be an unreasonable and substantial diversion of its resources to process information responsive to the access application which has already been provided in the context of two other Tribunal proceedings relating to substantially the same core issues.

29. The Respondent submits that this approach would be broadly consistent with s. 60(1)(d) of the GIPA Act. Section 60(1)(d) provides:

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

…

(d)   the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,

30. The Respondent submits the Tribunal should affirm the decision that is under review.

The Applicant’s response

31. The Applicant expressed scepticism in regard to the Respondent’s reasons for refusing to deal with the access application. She alleges that there has been collusion, fabrication and cover up to ensure that no-one can reach the documents that she is seeking. She is seeking to gain access to the documents and records to expose conduct within the agency that has been the subject of a cover up. She contends that the Respondent has been colluding to cover up the information she is seeking.

32. She urges the Tribunal to stand for openness, transparency, public interest and community safety and well-being. She submitted that a decision based on a wrong, falsified, fabricated estimate would be a wrong and corrupt decision and should be thrown out and that the Respondent should be penalized for misleading her and Tribunal.

33. The Applicant has filed detailed written submissions. However most of the material that she has filed is of no relevance to these proceedings. It appears to be related to allegations that officers of various agencies have breached her privacy and confidentiality. These issues are not under consideration in this matter.

34. Her material, while voluminous, focuses on her dealings with individuals in various agencies and the motivations of those individuals in their dealings with her. Even if correct, the motivations of those individuals are not relevant to the issues of the searches that would be necessary to respond to the access application or to the time and resources that would be necessary to process the information that is located by the searches to allow the Respondent to make a determination on the request.

35. The Applicant does not concede that her access application is unreasonably broad. I understand her position to be that dealing with the access application would not constitute an unreasonable and substantial diversion of the Respondent’s resources and that the Respondent is not able to rely on section 60(1)(a) of the GIPA Act in its refusal to do so.

36. The Applicant contends that the Respondent’s initial estimate of the time required to deal with her request was fabricated and an over-estimate. She says that the Respondent should not have any information or documents or files about her at all. If the Respondent does hold any information that is captured by the access application, it would not more than just few email exchanges, and that information would be located in 1 or 2 files. She contends that the information would be easily accessible and retrievable and it would not contain any highly sensitive or classified information. Little time would be required to review or read the information and therefore it should be released without any issues.

Discussion

37. The Respondent attempted to obtain the Applicant’s cooperation in narrowing the scope of the access application but she declined to do so. I am satisfied that the steps taken by the Respondent in this regard were reasonable.

38. The significant areas of disagreement are whether the estimate of processing time is reliable and whether dealing with the application would constitute an unreasonable and substantial diversion of the Respondent's resources in accordance with section 60 of the GIPA Act. There is no agreement between the parties in regard to the question of what constitutes an unreasonable and substantial diversion of an agency's resources.

39. The Respondent concedes that the initial estimate of processing time was not accurate. Ms McHugh provided an updated estimate that is still in excess of 40 Hours. This estimate is in the context of the limited resources that the Respondent has available for the task. The Respondent has also asserted that there is overlap between the access application in this matter and information sought in other proceedings.

40. I agree that some doubt attaches to the Respondent’s estimate of processing time. It may in fact be an under-estimate. However, to require the Respondent to provide a more accurate estimate of processing time would necessarily require it to undertake a significant amount of work. This raises the question of whether that would be a reasonable requirement to be imposed on the agency. In my view it would not be reasonable.

41. It is a matter for the Respondent to determine what resources it makes available to process GIPA access applications. Whether or not the Respondent is a large, well-endowed agency is not a relevant consideration in this matter.

42. In my view the 40 hour reference in Cianfrano should not be regarded as establishing a 40-hour rule. Each matter is to be considered on its own facts and an assessment is to be made in regard to whether the resources available to the agency are such that the time required to process the access application would constitute an unreasonable and substantial diversion of the agency’s resources in accordance with section 60 of the GIPA Act.

43. In my view, the Respondent has taken reasonable steps to form an estimate of the processing time that would be required. Ms McHugh repeated the process of estimation in light of the concerns that the Applicant raised and nevertheless arrived at a significant time estimate. I accept that the time required would probably be in excess of 40 hours.

44. I am satisfied that even if allowance were made for the possibility that the Respondent’s estimate of processing time may be excessive, the time required to process the access application would nevertheless constitute an unreasonable and substantial diversion of the agency’s resources. That would remain the case unless the Applicant is able to narrow the scope of her request.

45. That being the case, it is my view that the Respondent’s decision should be affirmed.

Order

1. The NSW Ministry of Health’s decision to refuse to deal with the Applicant's revised access application on the grounds that dealing with it would require an unreasonable and substantial diversion of its resources 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: 24 January 2019