Hutchinson v Roads and Traffic Authority, New South Wales

[2006] NSWADT 290

Set aside by Appeal:

CITATION:	Hutchinson v Roads and Traffic Authority, New South Wales [2006] NSWADT 290
DIVISION:	General Division
PARTIES:	APPLICANT Rowan Hutchinson RESPONDENT Roads and Traffic Authority, New South Wales
FILE NUMBER:	053202
HEARING DATES:	21/04/2006
SUBMISSIONS CLOSED:	04/21/2006
DATE OF DECISION:	10/04/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health (1985) 8 ALD 163 Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195
REPRESENTATION:	APPLICANT B Zipser, counsel RESPONDENT M Allars, counsel
ORDERS:	1. The decision of the RTA that it does not hold documents relating to the cost of earthworks, paving and landscaping the Mundoonan rest areas is set aside. That decision is remitted for reconsideration by the RTA in accordance with the following directions:; (a) Mr Doolan, or some other person familiar with the construction of the rest areas, is to go through the list of 405 files to identify whether any of those files is likely to contain documents relating to the cost of earthworks, paving and landscaping of the rest areas; (b) If relevant files are identified, then either Mr Doolan or a person other than Mr Doolan who has been instructed as to what documents to look for, should go through those files to identify those documents; (c) If there are no provisions in the FOI Act preventing the documents that are identified from being provided to Mr Hutchinson, including the resources exception in s 25(1)(a1), then they should be provided to him. This process should be completed and Mr Hutchinson advised of the outcome within 42 days of the date of this decision ; 2. The decision of the RTA that it does not hold Mr Doolan’s diary relating to the construction of the rest areas is affirmed; 3. The decision of the RTA that it does not hold diaries kept by surveillance officers which relate to the rest areas is set aside. That decision is remitted for reconsideration by the RTA in accordance with the following directions:; (a) Mr Doolan, or some other person familiar with the construction of the rest areas, is to go through the list of 405 files to identify whether any of those files is likely to contain diaries kept by surveillance officers which relate to the rest areas. (b) If relevant files are identified, then either Mr Doolan or a person other than Mr Doolan who has been instructed as to what documents to look for, should go through those files to identify any diaries kept by surveillance officers which relate to the rest areas; (c) If there are no provisions in the FOI Act preventing the documents that are identified from being provided to Mr Hutchinson, including the resources exception in s 25(1)(a1), then they should be provided to him. This process should be completed and Mr Hutchinson advised of the outcome, within 42 days of the date of this decision; 4. The decision of the RTA that it does not hold further documents relating to a conversation Mr Abraham had with Mr Doolan at Goulburn Major Projects Office on 31 March 1998 is affirmed; 5. The RTA’s application for costs is refused; 6. Mr Hutchinson’s application for costs is refused

Introduction

1 Mr Hutchinson, a former employee of the Roads and Traffic Authority (RTA), has made several applications to the RTA under the Freedom of Information Act 1989 (FOI Act). Two separate applications for documents are the subject of these proceedings. Both relate to the Mundoonan rest areas, which are on either side of the Hume Highway near Yass. The rest areas were constructed in 1995 as part of the Cullarin to Yass upgrading of the Hume Highway. The first request was for documents relating to the construction and maintenance of the rest areas and the second request was for documents relating to the cost of construction of the rest areas. The RTA has provided Mr Hutchinson with some documents in response to his requests, but he maintains that there are more documents on RTA files. According to Mr Hutchinson, the RTA has not conducted an adequate search for these documents. The RTA gave evidence of the searches it had conducted and the documents that it had provided to Mr Hutchinson. The issue for the Tribunal is whether each of the RTA’s decisions, that it does not hold any more documents, is the correct and preferable decisions: Administrative Decisions Tribunal Act 1997 (ADT Act), s 63. In determining that issue, the Tribunal needs to decide whether the RTA’s search for the documents has been adequate.

Principles governing adequacy of search.

2 Under s 28(1) of the FOI Act an agency may give notice either of its determination or, if the application relates to a document that is not held by the agency, of the fact that the agency does not hold such a document. The RTA agreed that the Tribunal has jurisdiction to conduct an external review of a decision that an agency does not hold certain documents. The name coined for such a review is an “adequacy of search” review.

3 The onus is on the RTA to establish that its determination that it does not hold the documents is justified: FOI Act, s 61. Two issues arise for the Tribunal when conducting such a review. The first is whether there are reasonable grounds to believe that the requested documents exist and are held by the agency. If the first question is answered in the affirmative, the next question is whether the agency has taken all reasonable steps to find the documents and is satisfied that they are not held by the agency. The adequacy of efforts made by an agency to locate documents the subject of a freedom of information application are to be judged by having regard to what is reasonable in the circumstances: Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health (1985) 8 ALD 163.

4 The Tribunal noted in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 that in determining whether an agency holds a document, evidence of searches carried out to locate the document will be relevant. The Tribunal observed at [19] that:

All the Tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches or the reference of the cases to the Ombudsman.

5 Both parties agreed that this is the correct approach.

6 Since the hearing of this matter, the Tribunal has handed down a decision that rejected some of the steps in the reasoning process in Beesley. (Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195.) Nevertheless the Tribunal confirmed that it does have jurisdiction to conduct an “adequacy of search” review in certain circumstances. As this case was decided after the hearing of this matter, I have not taken it into account. The Department of Commerce appealed to the Appeal Panel against the Cianfrano decision. With the consent of both parties, the Appeal Panel has referred the following question of law to the Supreme Court:

Is a notification under s 28 (1)(b) of the Freedom Information Act 1989, that an agency does not hold a document, a determination which the Administrative Decisions Tribunal has jurisdiction to review?

7 We have assumed, for the purpose of these proceedings, that the Tribunal does have jurisdiction to review such a decision.

Earlier application for rest area documents

8 Scope of earlier application. It is useful to set out a chronology of events to see exactly how the agency responded to each of Mr Hutchinson’s requests for documents. The RTA’s response to those requests was influenced by its response to an earlier request for documents relating to the rest areas. On 30 November 2002, Mr Hutchinson applied for access to 14 categories of documents. Item 6 of that request related to the rest areas. Mr Hutchinson requested:

Records of the cost of a “rest area” on the Hume Highway at Cullarin/Gunning Gap. It occupies both sides of the Hume Highway. Records of all faults found after this facility was built and when they were rectified. Of particular interest is the faults found by the EPA or others concerning sewage effluent discharge and effluent ponding, when these faults were fixed and by whom. I understand the EPA issued a notice to the RTA in 1998 or 1999.

9 This request related to the cost of construction of the rest areas and maintenance issues. Because of the scale of the request, consultation took place between Mr Hutchinson and Mr Youngman, the Manager of the Records Access Unit of the RTA, in an effort to narrow the scope of the request. Despite that consultation, the matter ultimately came before the Tribunal. Mr Hutchinson agreed to narrow some of his requests, including the request in Item 6. The request was amended to read:

Inspect the files containing records of faults associated repairs and orders, requirements or directions from the EPA relating to the Rest Area,

10 The reference to the cost of construction of the rest areas was omitted. By consent, the Tribunal set aside the RTA’s decision and remitted it for reconsideration.

11 RTA’s response to revised application. In a letter dated 15 August 2003, Mr Youngman made a new decision in relation to Mr Hutchinson’s application, including Item 6. He told Mr Hutchinson in that letter that a search of the files at the RTA offices at Wollongong, Mittagong and Goulburn had located 115 documents. Mr Hutchinson was not given those documents for reasons that are not relevant to these proceedings. Ultimately, the Tribunal dismissed Mr Hutchinson’s application for reasons not related to the substance of his request: Hutchinson v Roads and Traffic Authority (No 2) [2006] NSWADT 232.

First application for documents

12 Terms of the request. On 30 September 2004 Mr Hutchinson applied again to the RTA for documents relating to the maintenance of the rest areas. That application also included a request for documents relating to the construction of the rest areas. The application was for:

All documents concerning the construction and maintenance of Mundoonan rest area and all documents including photographs of the systems failure of the sewage effluent treatment system at what is now called Mundoonan Rest Area on the Hume Highway approximately 30 km north of Yass ...

13 In relation to the new request Mr Hutchinson indicated that:

a) The request includes documents and diaries held by Colin Robert Doolan particularly concerning the failure of the sewage effluent treatment system. (Mr Doolan was employed by the RTA as the project manager for the construction of the Cullarin to Yass dual carriageway upgrading of the Hume Highway.)

b) Mr Alf Wright of the Goulburn Depot may also hold records of faults found at the rest area particularly after construction was completed.

c) The records required include records held by the RTA concerning the work at the rest area supervised by Maarten Deligt relating to the sewage effluent treatment systems failure. . .(Maarten Deligt was a horticulturalist employed by the RTA.) (Words in brackets added.)

14 On 2 November 2004, Mr Youngman wrote a letter to Mr Hutchinson which included a comment about his earlier application:

The request for these documents formed Item 6 of your FOI Application, file number 2002/F1/1835.

I advised you, in a letter dated 15 August 2003, that a search of the files at the RTA offices at Wollongong, Mittagong and Goulburn located 115 documents.

15 Mr Youngman requested an advance deposit to process the application. Mr Hutchinson requested a review of that decision. On internal review, Mr Youngman’s decision to request an advance deposit was affirmed and the author, Mr Najem said:

I concur with Mr Youngman on his assessment of your current application that this request formed Item 6 of your FOI application number 2002/F1/1835.

16 Mr Hutchinson paid the deposit and, on 22 March 2005. Mr Youngman made a determination in relation to the request for documents concerning the construction and maintenance of the rest areas. The determination was that, apart from the documents that had been located in relation to the earlier request, no other documents exist. The letter relevantly stated:

I have made enquiries of the RTA's Colin Doolan and Tony Arts from the Southern Regional Office at Wollongong. These are the only areas in the RTA in which documentation dealing with the Mundoonan rest area is likely to be held.

Mr Doolan states that he does not hold any documents related to this matter and Mr Tony Arts has forwarded all documents that he could locate. Despite an exhaustive search, Mr Arts could not locate any other documents. These facts lead me to believe that no other documents exist.

On 22 March 2005 I determined that your application should be granted for the documents that could be located . . .

On 22 March 2005 I determined that, apart from the documents located and supplied as part of this application, your request should be refused as the RTA does not hold any other requested documents.

17 Mr Arts was the Communications Officer for the Southern Region and was based in Wollongong. Mr Youngman contacted him whenever an application for documents related to that region. Mr Arts would make inquiries at all the relevant offices and co-ordinate the collection and photocopying of the documents. Mr Hutchinson submitted that because the RTA did not call Mr Arts to give evidence, the Tribunal should apply the rule in Jones v Dunkel (1959) 101 CLR 298 to draw an inference that his evidence would not have helped the RTA’s case. We deal with this submission below at [28].

18 On payment of the balance of the processing fee, the RTA gave Mr Hutchinson access to a bundle of 115 documents that Mr Youngman had identified in response to Mr Hutchinson’s revised request at Item 6 of his earlier application. Mr Youngman agreed that none of those documents related to the construction of the rest area. The RTA says that that is because, despite its searches, it was unable to locate any such documents. Mr Hutchinson says that it is because Mr Youngman assumed that Mr Hutchinson’s earlier request at Item 6 was for the same documents as his current request. We return to this submission at [28] below.

Internal Review in relation to first application

19 Mr Hutchinson requested an internal review of the 22 March 2005 determination that the RTA did not hold any documents other than the 115 documents it had provided, in relation to the construction and maintenance of the rest areas. On 6 May 2005, Michael Najem, General Manager of Legal Branch, affirmed Mr Youngman’s decision on internal review. The letter relevantly stated:

I refer to your application under the FOI Act requesting that you be allowed to inspect and now access:

1. All documents concerning the construction and maintenance of Mundoonan rest area.

2. Any documents held by Colin Doolan and Maarten Deligt.

...I confirm that part one of your application has already been processed by Mr Youngman in his letter to you dated 22 March 2005 -

I have examined the facts of the case and in relation to the parties named in part two of your request further enquiries were made with our Human Resources Unit. 1 have been advised that Maarten Deligt no longer works for the RTA. Mr Deligt could not be contacted.

As for Mr Doolan, he was contacted and he advised that he does not possess any documents in relation to the construction and maintenance of the Mundoonan Rest Area.

20 Further documents found. On 14 June 2005, Mr Hutchinson applied to the Tribunal for a review of this determination. By letter dated 24 June 2005 Mr Youngman informed Mr Hutchinson that further documents had been located. The letter relevantly stated:

As I advised you previously during our telephone conversations, a number of additional documents were located after the application was concluded. None of the documents were in the possession of Colin Doolan and Maarten Deligt. Some of the documents could be copies of documents already supplied.

I have on 24 June 2005 determined to grant you access to the additional documents.

21 The additional documents related to maintenance of the rest area.

Second application for documents

22 In the meantime, by letter dated 14 January 2005, Mr Hutchinson applied to the RTA for documents relating to,“[T]he cost of the Mundoonan rest area when constructed.” He also asked for documents relating to the timing of the closure of the toilets in 2004/2005. The RTA failed to make a determination in relation to this request and Mr Hutchinson asked for an internal review. On 28 April 2005 Mr Najem made an internal review determination giving Mr Hutchinson access to documents in relation to the timing of the closure of the toilets. In relation to the documents relating to the cost of the rest areas when constructed, Mr Najem determined to grant Mr Hutchinson access to the requested documents. While Mr Hutchinson was satisfied with the RTA’s response in relation to the timing of the closure of the toilets, he was not satisfied with the RTA’s response in relation to the cost of construction of the rest areas.

Planning meetings

23 On 14 June 2005 Mr Hutchinson applied to the Tribunal for a review of this determination. The Tribunal decided to hear this matter and the request for review in relation to his first request for documents, together in the same proceeding. As is the Tribunal’s usual practice, planning meetings were conducted with the parties prior to Mr Hutchinson’s applications being listed for hearing. At one of the planning meetings Mr Hutchinson said that his application in relation to the cost of the rest areas was for documents relating to the cost of earthworks, the access road, paving and landscaping of the rest area. He did not seek documents relating to the cost of constructing the building. Mr Hutchinson also requested that Mr Youngman ask Alf Wright and Ross Abraham about diaries and about a conversation Mr Abraham says he had with Mr Doolan. Pursuant to s 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Tribunal remitted the decision that it did not hold these documents to the RTA for reconsideration.

24 Mr Youngman then took further steps to locate the documents. He asked an RTA officer to conduct a search of its database to locate relevant files. The Records Branch used the search words "Cullarin", "deviation" and "Yass" and produced a list of 405 files. Mr Youngman looked at five of the files which referred to contract payments, but did not find any documents setting out the costs of earthworks, access roads, paving or landscaping in respect of the rest areas. Mr Youngman also contacted some officers or former officers of the RTA to obtain further information. For example, Mr Hutchinson asked Mr Doolan for any further documents relating to a conversation Ross Abraham said he had with Mr Doolan regarding the design details of the rest areas.

Identification of documents in dispute

25 The first issue for the Tribunal is whether there are reasonable grounds to believe that the requested documents exist and are held by the agency. In order to answer that question, it is necessary to identify the documents that Mr Hutchinson’s says are held by the RTA but for which it has not conducted an adequate search. Mr Hutchinson’s first application was for “all documents concerning the construction and maintenance of Mundoonan rest area and all documents including photographs of the systems failure of the sewage effluent treatment system ...” Mr Hutchinson specified some of the documents that the request covered including diaries held by Mr Doolan. The day before the hearing Mr Hutchinson withdrew any claim of inadequate search in relation to the failure of the sewage effluent treatment system.

26 Mr Hutchinson’s second request was for documents relating to the cost of construction of the rest areas. At a planning meeting Mr Hutchinson clarified that the documents he sought related to the costs of earthworks, the access road, paving and landscaping of the rest area. It was apparent that Mr Hutchinson was not pressing his application so far as it related to the cost of the building itself. Mr Youngman said that it was his understanding after the planning meeting that Mr Hutchinson had refined his request for documents relating to the cost of construction of the rest areas to documents relating to the cost of earthworks, access roads, paving and landscaping of the rest areas. We agree that these are the documents for which Mr Hutchinson says the RTA has not conducted an adequate search.

27 At the hearing Mr Hutchinson’s counsel, Mr Zipser provided a copy of an email his client had sent him the day before. In that email Mr Hutchinson said that the documents that the RTA had not provided were:

(i) the documents concerning the cost of the earthworks, the access roads, brick pavers and other paving works and landscaping;

(ii) Mr Doolan’s diaries and the construction diaries of other site surveillance personnel;

(iii) Mr Doolan’s file notes or other records relating to the construction and maintenance of the rest area;

(iv) Any further records of a conversation between Ross Abraham and Colin Doolan at Goulburn Major Projects Office on 31 March 1998; and

(v) Maintenance records of Alf Wright or other maintenance personnel relating to faults with the rest areas.

28 The Tribunal treated this email as a submission as to the documents for which Mr Hutchinson now says the RTA had not conducted an adequate search. The first two items correspond with the two categories of documents that Mr Hutchinson identified at the planning meeting with the addition of construction diaries kept by other site surveillance personnel. Mr Doolan was able to give evidence about those diaries, so the RTA was not prejudiced by the addition of that material. Mr Doolan was available to give evidence about records of a conversation he allegedly had with Mr Abraham. Mr Doolan was also available to give evidence about file notes that he may have made, however Mr Zipser did not ask him questions about those documents in cross-examination. In those circumstances I find that Mr Hutchinson has not established reasonable grounds to believe that those documents exist.

29 The only category that caused prejudice to the RTA because of the late notice, were the maintenance records of Alf Wright. Mr Wright was not called as a witness and Mr Hutchinson had given the RTA the impression that he was not pursuing further documents relating to the maintenance of the rest area. In my view, Mr Hutchinson has not given the RTA sufficient notice that these documents are in dispute and I have not included them.

30 As the list in the email constitutes the documents for which Mr Hutchinson says the RTA has not adequately searched, it follows that he does not make the broader assertion that the RTA has not searched for construction or maintenance documents in general. Mr Zipser spent some time cross-examining Mr Youngman on the RTA’s search for construction documents and making submissions on that point. However, it is apparent from the evidence and the history of this matter that Mr Hutchinson has now confined the documents in dispute to the categories of documents listed in the email. Even if that was not Mr Hutchinson’s intention, he has not given the RTA adequate notice of the grounds on which he believes that other construction documents exist and are held by the agency. Consequently, evidence from Mr Arts as to the searches he carried out for other “construction” documents would not have been relevant and we reject Mr Hutchinson’s submission that we should apply the rule Jones v Dunkel (1959) 101 CLR 298 to the RTA’s failure to call Mr Arts. The RTA has called the two people who are in the best position to provide evidence relating to the disputed documents namely Mr Youngman and Mr Doolan.

31 We find that there are reasonable grounds to believe that the following documents exist:

(i) the documents concerning the cost of the earthworks, the access roads, brick pavers and other paving works and landscaping;

(ii) Mr Doolan’s diaries and the construction diaries of other site surveillance personnel; and

(iii) Further records of a conversation between Ross Abraham and Colin Doolan at Goulburn Major Projects Office on 31 March 1998.

32 The next question is whether the RTA has taken all reasonable steps to search for these documents.

Searches for documents relating to cost of construction

33 Introduction. After the planning meeting Mr Youngman took steps to locate "additional files ... for details of the cost of earthworks, the access road, paving or landscaping for the Mundoonan rest area". As we have said, a search of the RTA database produced a list of 405 files that may have contained relevant documents. About this time, Mr Youngman emailed Mr Milner, the resident engineer employed` by the contractor on the by-pass project, to ask whether the cost of the rest areas would be “buried” in the overall costs for the roadworks or whether that information would be identifiable. Mr Milner responded in an email dated 23 September 2005:

The civil works to prepare the sites of the Southbound and Northbound rest areas were constructed by the Contractor for the Pavement Construction of Cullarin Deviation to Yass Bypass section of the Hume Highway. The Contract was already in force when the requirement for the rest areas was identified and the work was offered to the Contractor, Barclay Mowlem, as a variation . I recall that Barclay Mowlem’s offered price to construct the off-load taper and ramp to access the Southbound rest area site was considered extortionate, and the election was made to have the Contractor perform those works as day works , directly supervised by one of the surveillance officers. The interlocking concrete block pavements in the parking areas were constructed as variation work , and the contract payment schedules should have identified these costs as approved variations.

The Contracts Clerk in RTA's Goulburn Major Projects Office was Mr Tony Thurtell (now RTA Hunter Region). The Site Administration files were delivered to Goulburn for archiving, some time in 1995, from memory. (Underlining added.)

34 Day works are a form of costing a variation. If it is difficult to quantify the total cost for a variation because the extent of work associated with the variation is not known, then the contractor may charge an agreed hourly rate for that work.

35 Mr Youngman looked at five of the files on the list which referred to contract payments. He did not find any documents setting out costs of earthworks, access roads or paving and landscaping of the rest areas. He said that each of the files contained documents about progress payments for construction of sections of the roadway but none of them specifically related to the construction of the rest area. Mr Doolan, a senior project manager with the RTA, gave evidence about documents relating to the cost of construction of the rest area. His recollection was that there were four contracts for the Cullarin to Yass upgrading of the Hume Highway: two earthworks contracts and two paving contracts. Apart from the building of the toilet block for the rest area, which was in a separate contract, the majority of the work for the rest area was on the same files as that for the bypass.

36 Earthworks. Mr Doolan said he did not think a person would be able to find documents setting out the cost of earthworks for the rest area because his recollection is that they were done on the basis of a “schedule of rates”. That means there is a rate for the movement of a certain quantity of earth and the documentation would not differentiate between earth moved to construct the rest area and earth moved to build the highway. Mr Milner’s recollection was that the RTA elected to have the construction of the off-load taper and ramp to access the Southbound rest area site as day works. Mr Milner did not specify in this email whether the construction of the taper and the ramp included the earthworks. If the earthworks were done by day works, then Mr Doolan agreed that there would be a record on the payments file of the cost of the earthworks in relation to the rest area.

37 Paving. According to Mr Doolan, the paving work for the rest area was also done according to a “schedule of rates” rather than as day works and the cost of that paving would not be ascertainable from the files. As I have said, Mr Doolan’s email suggests that the construction the off-load taper and ramp (which presumably includes paving those roads) was done by day works. Mr Doolan and Mr Milner agreed that the interlocking concrete block pavements were constructed as variation work. Mr Milner said in his email that the contract payment schedules should have identified these costs as approved variations. Mr Doolan agreed and added that if there was a variation, there would be a letter to the contractor from the RTA agreeing to the variation and it would specify price, timing and quantities. If the RTA approved a variation, the contractor would claim for that work either on a monthly basis or on completion of the work. Mr Doolan said that he would be able to go through the list of 405 files and express an opinion as to which file or files documents concerning the cost of the block paving would be on. In addition, if the paving of the road to access the rest area was done as a variation, there may be files that could be identified which would record the cost of that variation.

38 Landscaping. Mr Doolan’s evidence was that the landscaping was probably done under a schedule of rates basis, based on area, so it would be extremely difficult to identify the costs. He cannot remember whether the contractor did the landscaping but he does recall that a landscape officer from the RTA, Martin Deligt, was involved in selecting the type of species that were planted. He said that if Mr Deligt did the landscaping work then it would have been paid for internally by the RTA. Although Mr Doolan expressed an opinion as to the overall cost of the landscaping work for the rest areas in an email to Mr Youngman, he said in oral evidence that that amount may be totally incorrect.

39 Finding. On the basis of this evidence, I am satisfied that Mr Doolan has sufficient knowledge of the location of documents relating to the cost of the rest area to go through the list of 405 files and express an opinion as to which files may contain documents relating to earthworks, the paving (including the cost of the block paving) and the landscaping. That finding is subject to the proviso that documents may only be identifiable if the construction of the rest area was done as day works as distinct from schedule of rates. However, the question is not whether Mr Doolan, or anyone else, could go through the list of files and identify relevant documents. The question is whether the RTA has taken all reasonable steps to find the documents sought by Mr Hutchinson.

40 Has RTA taken “all reasonable steps”? The RTA submitted that it has already taken all reasonable steps to find the disputed documents. Mr Youngman said that he considered asking John Milner or Colin Doolan to look at the list of files, but decided against it as it would have taken them off their current projects, possibly for days. Ms Allars submitted that when considering whether an adequate search has been conducted, the Tribunal should keep in mind that the FOI Act allows an agency to refuse access to documents “if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions”: FOI Act, s 25(1)(a1). She said that the duty to search cannot be so onerous as to require an agency to engage in a task that would substantially and unreasonably divert its resources.

41 Mr Hutchinson submitted that the adequacy of search issue arises prior to the question of whether the resources exception in s 25(1)(a1) applies. I agree with that proposition. The question for the Tribunal is whether the RTA has taken all reasonable steps to find the documents sought by Mr Hutchinson. The RTA says it does not have any further documents. It is premature for the RTA to foreshadow that it may rely on the resources exception if it discovers that it does hold documents relevant to Mr Hutchinson’s requests.

42 Conclusion. In the light of Mr Doolan’s evidence evidence, I am not satisfied that the RTA has taken all reasonable steps to find the documents relating to the cost of earthworks, paving and landscaping of the rest areas. The decision of the RTA that it does not hold these documents is set aside. That decision is remitted for reconsideration by the RTA pursuant to s 63(3)(d) of the ADT Act in accordance with the following directions:

(a) Mr Doolan, or some other person familiar with the construction of the rest areas, is to go through the list of 405 files to identify whether any of those files is likely to contain documents relating to the cost of earthworks, paving and landscaping of the rest areas.

(b) If relevant files are identified, then either Mr Doolan or a person other than Mr Doolan who has been instructed as to what documents to look for, should go through those files to identify those documents.

(c) If there are no provisions in the FOI Act preventing the documents that are identified from being provided to Mr Hutchinson, including the resources exception in s 25(1)(a1), then they should be provided to him. This process should be completed and Mr Hutchinson advised of the outcome within 42 days of the date of this decision.

43 Mr Doolan’s diary. Mr Doolan gave evidence that during the period that he was assisting to manage the contract he did not keep a diary of what was happening on a day to day basis in relation to construction. I am satisfied on the basis of this evidence, and Mr Youngman’s evidence, that the RTA has conducted an adequate search for Mr Doolan’s diaries and that its decision that those documents are not held by the RTA is the correct decision. The decision is affirmed.

44 Diaries of site surveillance personnel. Mr Doolan confirmed that site surveillance personnel, who are generally employed by the contractor, kept diaries. He said he could not recall whether there were any RTA surveillance officers on this project. Mr Doolan’s understanding was that if diaries were kept by surveillance officers employed by the contractor, a copy of the diaries would not be kept on RTA files. However, he accepted that it appears from the list of 405 files that the RTA may hold a copy of those diaries on their files.

45 In evidence was an email from Lynette Furness at the Mittagong Works Office, dated 23 November 2005 to Mr Youngman stating that:

I do not have construction diaries or files on this matter. The project was not done by Mittagong or Goulburn Maintenance Offices. The construction of this facility was managed by Major Projects at Goulburn.

46 Given this evidence, I am satisfied that the RTA has not conducted an adequate search for these documents and I set aside the RTA’s decision that it does not hold diaries of site surveillance personnel. That decision is remitted to the RTA in accordance with the following directions:

(a) Mr Doolan, or some other person familiar with the construction of the rest areas, is to go through the list of 405 files to identify whether any of those files is likely to contain diaries kept by surveillance officers which relate to the rest areas.

(b) If relevant files are identified, then either Mr Doolan or a person other than Mr Doolan who has been instructed as to what documents to look for, should go through those files to identify any diaries kept by surveillance officers which relate to the rest areas.

(c) If there are no provisions in the FOI Act preventing the documents that are identified from being provided to Mr Hutchinson, including the resources exception in s 25(1)(a1), then they should be provided to him. This process should be completed and Mr Hutchinson advised of the outcome, within 42 days of the date of this decision.

47 Mr Hutchinson identified further documents relating to a conversation Mr Ross Abraham had with Mr Doolan at Goulburn Major Projects Office on 31 March 1998 as being documents for which the RTA had not conducted an adequate search. In the email from Ross Abraham to Mr Youngman dated 1 November 2005, Mr Abraham says:

I spoke with the Senior Project Manager (Mr Col Doolan) at Goulburn Major Projects Office on 31.3.98. He confirmed that:

The facility was designed by Connell Wagner

He was the officer who gave the brief to Connell Wagner to design this facility

etc ...

48 Mr Doolan could not recollect having this conversation with Mr Abraham and denied having any record of it. I am satisfied on the basis of this evidence and Mr Youngman’s evidence that the RTA has conducted an adequate search for any further records of this conversation and affirm the RTA’s decision that it does not hold these documents.

Costs

49 The RTA sought an order for costs against Mr Hutchinson. Section 88(1) of the ADT Act provides that

Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

50 The RTA submitted that the special circumstances in this case are that Mr Hutchinson should have withdrawn his application and accepted that the searches were adequate. As I have found that the searches were not adequate in some respects, there is no basis for the application for costs.

51 Mr Hutchinson also sought an order for costs against the RTA if he was successful. He says that it was obvious that the RTA did not adequately search for the documents and the hearing has been a waste of time. While I have found that the searches were not adequate in some respects, this factor alone does not justify an order for costs against the RTA.

Orders

1. The decision of the RTA that it does not hold documents relating to the cost of earthworks, paving and landscaping the Mundoonan rest areas is set aside. That decision is remitted for reconsideration by the RTA in accordance with the following directions:
(a) Mr Doolan, or some other person familiar with the construction of the rest areas, is to go through the list of 405 files to identify whether any of those files is likely to contain documents relating to the cost of earthworks, paving and landscaping of the rest areas.

(b) If relevant files are identified, then either Mr Doolan or a person other than Mr Doolan who has been instructed as to what documents to look for, should go through those files to identify those documents.

(c) If there are no provisions in the FOI Act preventing the documents that are identified from being provided to Mr Hutchinson, including the resources exception in s 25(1)(a1), then they should be provided to him. This process should be completed and Mr Hutchinson advised of the outcome within 42 days of the date of this decision.

2. The decision of the RTA that it does not hold Mr Doolan’s diary relating to the construction of the rest areas is affirmed.

3. The decision of the RTA that it does not hold diaries kept by surveillance officers which relate to the rest areas is set aside. That decision is remitted for reconsideration by the RTA in accordance with the following directions:

(a) Mr Doolan, or some other person familiar with the construction of the rest areas, is to go through the list of 405 files to identify whether any of those files is likely to contain diaries kept by surveillance officers which relate to the rest areas.

(b) If relevant files are identified, then either Mr Doolan or a person other than Mr Doolan who has been instructed as to what documents to look for, should go through those files to identify any diaries kept by surveillance officers which relate to the rest areas.

(c) If there are no provisions in the FOI Act preventing the documents that are identified from being provided to Mr Hutchinson, including the resources exception in s 25(1)(a1), then they should be provided to him. This process should be completed and Mr Hutchinson advised of the outcome, within 42 days of the date of this decision.

4. The decision of the RTA that it does not hold further documents relating to a conversation Mr Abraham had with Mr Doolan at Goulburn Major Projects Office on 31 March 1998 is affirmed.

5. The RTA’s application for costs is refused.

6. Mr Hutchinson’s application for costs is refused.