Jaffarie v Workers Compensation Commission

[2016] NSWCATAD 256

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Jaffarie v Workers Compensation Commission [2016] NSWCATAD 256
Hearing dates:	2 June 2016
Date of orders:	11 November 2016
Decision date:	11 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The decision under review is affirmed. (2) The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.
Catchwords:	ADMINISTRATIVE LAW – access to government information – access application – whether the Workers Compensation Commission is a tribunal – reasonableness of searches - excluded information
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	BSU v Workers Compensation Commission [2015] NSWCATAD 125 Mino v Legal Aid NSW [2015] NSWCATAD 245 Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor [ 2003] NSWCA 146 Saggers v Environment Protection Authority [2013] NSWADT 204; Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189. Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464 Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47
Category:	Principal judgment
Parties:	Sayed Akbar Jaffarie (Applicant) Workers Compensation Commission (Respondent)
Representation:	Counsel: B Tronson (Respondent)   Solicitors: P Buttar (Applicant) Workers Compensation Commission (Respondent)
File Number(s):	1610067

REASONS FOR DECISION

1. The Applicant has sought access to information from the Respondent under the Government Information (Public Access) Act 2009 (“the GIPA Act”). His initial request was for "all records your office is holding the records and government information your office is holding".

2. At the request of the Respondent's Right to Information Officer, Mr Geoffrey Cramp, the Applicant clarified his request as follows:

I am asking for all records and information in your possession in respect of my matter not copied to my solicitor Buttar Caldwell and company or their predecessor.

I want all file loads and telephone records and all records on your database correspondence enter with insurance company and employer's lawyers and WIRO and WorkCover.

Please advise me if Mr. Roach is a judicial officer and whether his records are also available under GIPA.

3. Mr Cramp understood the Applicant's access application to be an application for copies of his files and correspondence with the Workers Compensation Independent Review Officer (“WIRO”) and WorkCover. In response to that request Mr Cramp advised:

I will copy the four commission files for you.

I will also search for any correspondence with the WIRO and WorkCover in relation to your matters.

Mr Roach is a deputy President and it is possible that any notes, etc that he made while determining your appeal would not be available to you under GIPA, I won't know until I see what is on the file.

4. The four Commission files were copied and delivered to the Applicant.

5. The Applicant has made an application to the Tribunal for external review of the Respondent's decision. It is apparent that he was not satisfied with the Respondent’s determination and is still seeking access to further information. In particular he is seeking access to information in respect of any communication between the Respondent and other bodies including WIRO and WorkCover.

The Issues

6. My understanding is that the Applicant questions the adequacy of the searches undertaken by the Respondent and contends that the Respondent should hold other information that it has not located or released. This requires consideration of the following:

a.   Whether the Respondent has located all of the information falling within the scope of the access application; and

b.   Whether the Applicant has been given access to all the information that he is entitled to receive.

Other Applicable Legislation

7. The objects of the GIPA Act are set out in section 3 as follows:

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

8. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

9. There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction.

10. In order to determine whether the Respondent has located all of the information falling within the scope of the access application it is necessary to consider the steps taken to locate the requested information and whether the Respondent has satisfied its obligations under section 53 of the GIPA Act. Section 53 provides:

53 Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

11. Section 43 of the GIPA Act provides that an access application cannot be made to an agency for "excluded information" of the agency. An access application is not valid to the extent that it requests "excluded information".

12. Section 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies on the Respondent.

13. Schedule 4 to the GIPA Act provides that information that relates to court judicial functions is "excluded information" of the agency. Schedule 2 relevantly provides:

SCHEDULE 2 – Excluded information of particular agencies

Note: Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

1 Judicial and prosecutorial information

A court-judicial functions.

14. Schedule 4 to the GIPA Act defines a number of terms for the purposes of the Act. It provides that in the GIPA Act:

"court" includes:

(a) a tribunal, a Magistrate and a coroner, and

(b) a registry or other office of a court and the members of staff of that registry or other office.

…

"excluded information" of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.

"judicial functions" , in relation to a court, means such of the functions of the court as relate to the hearing or determination of proceedings before it…

15. The Applicant has also raises the question of whether the Tribunal should take action under section 112 of the GIPA Act. Section 112 provides:

112 Report on improper conduct

If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

Material before the Tribunal

16. The Respondent relies on evidence from Mr Cramp and Mr Parnel McAdams. Each of those witnesses provided statements in support of the Respondent’s case, appeared at the hearing and was cross-examined. The Respondent also relies on a bundle of material relevant to the determination of the application which was filed pursuant to section 58 of the Administrative Decisions Review Act 1997. Ms Tronson also made written and oral submissions.

17. The Applicant relies on a number of documents that were placed into evidence as well as written and oral submissions.

Mr Parnel McAdams

18. At the time of making his statement Mr McAdams was the Respondent’s Acting Senior Solicitor. He stated that he is not a GIPA Officer and that it was not his role to search for documents. He has looked at the GIPA Act but he is not aware what training was required to be undertaken by the Respondent’s GIPA Officers or whether they had in fact undertaken that training.

19. He stated that at the time he became involved with the access application Mr Cramp was on leave and that in Mr Cramp’s absence he had directed that a search be conducted of any correspondence between the Respondent and WIRO concerning the Applicant. The search was undertaken by Susan Brown. Mr McAdams requested that Ms Brown undertake the search because she had access to electronic records that he did not have. He could not recall if he was present when Ms Brown undertook the search. The search term that used was "Jaffarie".

20. He stated that the following documents were identified within the scope of the request:

a)   email chain commencing 18 September 2014 from Mr Rod Parsons to Mr Michael Vella, ending on 18 December 2014;

b)   letter to Buttar, Caldwell & Co Solicitors dated 24 September 2014;

c)   email forwarded from Mr Trevor Zabow dated 25 November 2015 attaching email from Mr Kim Garling, WIRO, including email to the legal representatives in the Commission proceedings; and

d)   email forwarded from Mr Zabow dated 25 November 2015 attaching email from Mr Pervaiz Buttar.

21. He accepted that the information that Ms Brown located was within the scope of the access application and that it could have been located if the search had been undertaken earlier.

22. Mr McAdams also stated that no telephone record or file note of a telephone conversation between the Commission and the WIRO was identified. He said that he would not expect a record or file note to be kept of an informal discussion.

23. In his opinion, if the Respondent held further information it would have been revealed by the search.

Mr Geoffrey Cramp

24. Mr Cramp is the Respondent’s Manager of Executive Services and Right to Information Officer. He gave evidence of the communications that he had with the Applicant in regard to the access application. He stated that he sent the Applicant a complete copy of all of the Commission's files relating to his matters. In his statement he said that he did not knowingly exclude any documents from the copy of the files that he sent to the Applicant but that did not recall conducting a search for correspondence between the Commission, WIRO and WorkCover outside of those files.

25. Under cross-examination Mr Cramp conceded that when the Applicant had clarified the focus of his request he had included a reference to WIRO in the request. He also conceded that his initial search was incomplete. He accepted that the search was ultimately undertaken by another GIPA Officer and that he did not undertake the search.

The Respondent’s Submissions

26. Ms Tronson made both written and oral submissions. The Respondent contends that there is an issue about whether the access application included a request for information in respect of any communication between the Respondent and WIRO.

27. The Respondent's position is that the Applicant's access application did not include a request for that information other than to the extent any such information was included in the Applicant's matter files. However, the Respondent accepts that:

a.   the Applicant's subjective interpretation of his access application is that he did request such information;

b.   Mr Cramp indicated he would search for such information; and

c.   in any event, the Applicant would be entitled to make an access application in respect of such information.

28. The Respondent accepted the application to the Tribunal could proceed on the question of whether the Respondent had carried out reasonable searches for such information.

29. Ms Tronson submitted that if the Tribunal is satisfied that WIRO communications are captured by the access application it should vary the determination to address the additional information that had been located and released to the Applicant.

30. Ms Tronson pointed to the additional search undertaken by Ms Brown and submitted that these were reasonable and sufficient. She submitted that as "Jaffarie" is not a common name, all relevant information would have been located and that it is difficult to identify further possible searches that could be undertaken to locate any other information.

31. The Respondent contends that the Tribunal can be satisfied that it has complied with its obligations pursuant to s 53(2) of the GIPA Act.

32. In regard to the Applicant’s request for information concerning a determination of the Commission Ms Tronson submitted that some of the released information may be information that is within the scope of schedule 4 to the GIPA Act. She referred to the decision of Senior Member Walker in BSU v Workers Compensation Commission [2015] NSWCATAD 125 where the Senior Member found that the Workers’ Compensation Commission is a “tribunal” for the purposes of the Privacy and Personal Information Protection Act 1998 and the Health Information and Privacy Act 2002.

33. Ms Tronson submitted that the Tribunal should find that the Workers’ Compensation Commission is also a “tribunal” for the purposes of the GIPA Act. She further submitted that requested information concerning arbitration would be within the Judicial Functions of the Commission and as such is "excluded information". It is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information.

The Applicant’s Submissions

34. The Applicant provided written submissions in which he stated that he relies on the points raised in the correspondence from Mr Buttar to Ms Tronson. In an email to Ms Tronson dated 3 May 2016 Mr Buttar wrote:

I am rather puzzled at the following:

1.    The two statements attached with the submissions are both signed on 2 May 2016 yet Mr Cramp seems to be on leave, (albeit not stated by him in his statement), as confirmed by Mr McAdams and on the same day Mr McAdam conducts the search to find a bundle of documents without naming the officer of the Commission who conducted such search.

2.    Mr Cramp in his statement admits he did not conduct the searches which could identify the documents easily located by the unnamed deputed person by simply searching the name 'Jaffarie', (albeit still do not provide the full chain of correspondence on a bare reading of emails).

3. No search is conducted to exclude any correspondence or emails exchanged with WorkCover nor such onus discharged since the request by the applicant admittedly made specific reference to both WIRO and WorkCover and the earlier withheld without any reasonable explanation. The so called s58 bundle is therefore still incomplete and the obligations under GIPA Act not yet satisfied. There was hence no occasion to invoke PC [PC v University of New South Wales (GD) [2005] NSWADTAP 72] 'upon their face' test as mentioned in your paragraph 16. In paragraph 9 of his statement Mr Cramp is admitting he did not conduct the very search the application was specifically requesting for.

4.    Mr Parsons the Registrar specifically mentions to me the correspondence with WIRO, yet the emails were not provided on a very specific request by the applicant.

5.    The two statements relied upon are not under oath and unless cross examined the testimony cannot be relied upon since inter alia the statement of Mr McAdam seems to be providing explanation or his opinion of lack of telephone records relating to third party hearsay 'informal' discussions.

6.    The applicant had sworn an affidavit regarding his conversations with Registrar Parsons in the Court of Appeal and no record of such formal conversation was either produced in the Court in rebuttal or produced in any bundle.

7.    The bundle contains documents where applicant's private and confidential records seem to be discussed by the Registrar of an independent tribunal before a decision in appeal is given, in writing with WIRO without authority from the applicant.

8. On the basis of the above the good faith required from those entrusted with the GIPA legislative functions is thrown in doubt and inferences drawn by counsel of compliance do not seem to be well reasoned nor 'reasonable search' argument stacked up.

9.    The documents, the applicant reasonably believed to have existed have now partially turned up by making simple search. One cannot be sure how the cases you rely upon can possibly be relied upon the facts since the points of distinction are sharp and clear.

10.    Since the Deputy President is not a judicial officer nor is WCC a court, and the email of Mr Cramp of 4 November 2015 (your paragraph 6) relating to the notes and files were not included in the bundle nor explained further with heavier onus upon him before the NCAT, yet in his statement he provides no explanation in spite of a written undertaking. He also failed to explain how he claimed on 14 January 2016 the documents were provided to the applicant on an 'informal' basis though the application was duly entertained and the fee waived. I suggest you may seek further instructions from your client on the above matters otherwise a request may well be made for the two witnesses to be made available for cross-examination or summoned before the NCAT.

35. Some of those issues have been addressed in cross-examination of Mr Cramp and Mr McAdam. Other issues are no longer relevant because of the narrowing of the issues and others remain unanswered.

36. In his written submissions the Applicant asserted:

WIRO records all telephone conversations and a recording advises all callers when a phone call is made accordingly. WIRO keeps all telephone conversation records. There is now evidence conversations may have been entered between the WCC staff and the staff of WIRO and I am entitled to such records under GIPA. I now call upon WIRO to produce electronic telephone records held by WIRO, withheld from me on my GIPA application. Either there are more documentary records of emails kept by the exchange of information between WIRO and WCC or WIRO and WorkCover. My such suspicion is further enhanced by the records produced by WCC previously withheld from me on my GIPA application and the fact the ILARS Service aspects of WIRO duties exclusively and ultimately decided by WorkCover.

Legal aid is not paid by ILARS Service, nor by WIRO but by WorkCover. WorkCover credits such amounts in the office bank accounts of the solicitors, a conflict perpetuated by the system set up by WIRO through ILARS Service, a non-statutory administrative function of WorkCover payments taken over by WIRO. It can be inferred, since WIRO only deals with the approval of the grant system set up by contractual relationship unilaterally entered by WIRO with all barristers and solicitors, the approved grant is paid by WorkCover. Therefore WIRO ought to have entered correspondence with WorkCover to bind the WorkCover credit. It is particularly so since my solicitors before and after filing the appeal in the Court of Appeal sought a grant for running the matter in the court and engaged 2 senior counsels and another counsel in respect of very difficult and novel propositions of law.

37. Mr Buttar suggested that additional searches could be undertaken to locate for example, emails forwarded from the arbitrator to Mr Zabow or the Registrar; telephone notes taken by the Registrar and records of communications with WorkCover.

38. In contrast to Ms Tronson’s submission that the Commission is a court for the purposes of the GIPA Act, Mr Buttar referred to the Court of Appeal decision in Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor [ 2003] NSWCA 146 (“Orellana-Fuentes”) in which the Court of Appeal found

52 While the Commission has some of the powers and trappings of a court, the cumulative effect of the matters that indicate that it is not a court is extremely powerful. In my opinion, these matters compel the conclusion that the Commission is not a court.

39. In his written submissions the Applicant also raised the issue of a referral pursuant to section 112 of the GIPA Act. He wrote:

I submit the two agencies have breached section 112 good faith requirement of GIPA legislation.

For the purposes of section 112 the lack of good faith test is made out and the threshold is crossed. Sections of 97 and 105 laid down statuary onus on the agency to justify decisions. The two sections reiterate the onus always remains on the agencies and it is wrong the onus somehow shifts when section 112 contravention is alleged by the applicant. I submit the onus of proof specifically laid down by the statute twice in the Act has not been discharged for the purposes of section 112 by the two agencies.

The WCC is a special tribunal within the meaning of section 48 of the Supreme Court Act 1990 as is this Honourable Tribunal as laid down in Gaynor v Burns decided this year by the Court of Appeal. In Minister of Immigration v Li decided by the High Court in 2013 it was made clear reasonableness was an essential element of every decision made by any administrative agency. I submit the 2 agencies have been unreasonable and have treated on un-equal footing. Court of Appeal in my matter last year and each Judge has separately given reasons for the type of unfairness I was meted by the WCC. The objectives of FOI are similar to GIPA. This year in a Federal Court challenge by the ex-Attorney-General of Australia while time to access the diaries of the current Attorney-General the details and analysis of the objectives of information legislation and the right of access was chartered and I rely upon the same.

There is serious maladministration of suppression of records into which Mr Cramp has admitted and WIRO has not alluded to in the submissions or statement. All correspondence were entered by my solicitor with a Mr Vella of WIRO and no statement has been provided by Mr Vella if there were any records of telephone conversations between him and the staff of WCC or indeed WorkCover in respect of the grants sought by my solicitors. The adverse inference or any inference can be drawn on principles of common sense, fairness and reasonableness, the hallmark of principles of administrative justice.

The WCC in the submissions and the statements have admitted violations of GIPA whereas WIRO has admitted my application was not even treated as a GIPA application when the application specifically so stated.

Discussion

40. As noted, Ms Tronson has made submission that some of the information that has been requested is within the scope of schedule 4 to the GIPA Act. She submitted that the Tribunal should find that the Workers’ Compensation Commission is also a “tribunal” for the purposes of the GIPA Act.

41. I also note Mr Buttar’s submission in that regard. I have considered the Court of Appeal decision in Orellana-Fuentes and I agree with Mr Buttar that the Commission is not a court in the context of those proceedings. However, that decision is not conclusive of the issue in this matter.

42. For the same reasons that Senior Member Walker found in BSU v Workers Compensation Commission that the Commission is a “tribunal” for the purposes of the Privacy and Personal Information Protection Act 1998 and the Health Information and Privacy Act 2002, it is my view that the Commission is also a “tribunal” for the purposes of the GIPA Act.

43. Pursuant to Schedule 4 of the GIPA Act, the term "court" includes a tribunal for the purposes of the GIPA Act. I agree with Ms Tronson that the requested information concerning arbitration would be within the Judicial Functions of the Commission. An access application is not valid to the extent that it requests "excluded information". It follows that any information that relates to "judicial functions" is excluded information and cannot be released pursuant to the access application.

44. The question remains as to whether the Respondent has located all of the information falling within the scope of the access application. As I have indicated above, in order to answer that question it is necessary to consider the steps taken to locate the information and whether the Respondent has satisfied its obligations under section 53 of the GIPA Act.

45. I do not agree with the Respondent’s contention that there is an issue about whether the access application included a request for information in respect of any communication between the Respondent and WIRO. I agree with the Applicant that the scope of the access application is to be taken as that clarified to Mr Cramp. It is to be regarded as including a request for correspondence with the “insurance company and employer's lawyers and WIRO and Work cover”.

46. I have set out the evidence of the searches that the Respondent undertook. I must consider whether those searches were adequate.

47. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

48. The decision in Shepherd has been followed in a number of decisions under the GIPA Act. I considered this in Mino v Legal Aid NSW [2015] NSWCATAD 245 at paragraphs [24] – [35].

49. The Tribunal must form a view as to whether or not there may be some further records relevant to the application and, if so, whether the effort that the Respondent made to find them was sufficient.

50. The first question therefore, is whether there are reasonable grounds for believing that there are additional documents. In this matter the Applicant has raised concerns about the adequacy of the searches and Mr Buttar has suggested other searches that might have revealed further records relevant to the application.

51. I agree that the initial searches were not adequate. Mr Cramp conceded that he had not carried out searches that he had undertaken to do. However it is clear that the searches were subsequently undertaken.

52. I also agree that it is likely that further information would be held in relation to the arbitration. However, as noted above, it is my view that the information relating to the arbitration is excluded information.

53. I agree with the Respondent that as "Jaffarie" is not a common name, all relevant information should have been located using that search term.

54. With the exception of the possibility that excluded information might be located, I am not satisfied that further searches would locate further information that falls within the scope of the access application. I am satisfied that the totality of the search efforts made by the Respondent have been reasonable in all the circumstances of this case.

Section 112 of the GIPA Act

55. The Applicant has expressed concern in relation to the Respondent’s conduct in processing his access application. He requested that the Tribunal take action pursuant to section 112 of the GIPA Act.

56. Section 112 provides:

"If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency."

57. I considered the Tribunal’s powers in relation to section 112 in my decision in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 (“Zonnevylle”). I will not reconsider that here.

58. It is apparent from the section that the Tribunal’s opinion must be formed "as a result of an NCAT administrative review". The materials supporting this opinion must have arisen in the course of the Tribunal reviewing a reviewable decision.

59. Any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally; and the conduct complained about must be a failure "to exercise in good faith a function conferred on the officer by or under the GIPA Act'.

60. The relevant test is a subjective one; however there are some objective components as well. For example, consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials.

61. The mere fact that the Tribunal accepts that an aspect of the agency's decision is wrong is insufficient to bring the matter within the scope of section 112: see discussion in Zonnevylle.

62. In Zonnevylle from paragraph [27] I also considered the standard to be applied in relation to the question of good faith.

63. What is required for something to be done or omitted in good faith may vary from one case to the next. I have previously expressed the view that the test of good faith is predominantly subjective: Saggers v Environment Protection Authority [2013] NSWADT 204; Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189.

64. However, there are some objective components as well. For example, consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. Further, serious and careful consideration must be given to the application; there must be more than a cursory review. The GIPA Act does not allow an agency to simply turn a blind eye to the legislative requirements: Shoebridge at paragraphs [37], [40] – [42].

65. An agency must exercise its functions so as to promote the object of the GIPA Act. It must have regard to any relevant guidelines issued by the Information Commissioner and must not take irrelevant considerations into account.

66. It must undertake such reasonable searches, using any resources reasonably available, as may be necessary to find any of the information applied for that was held by the agency when the application was received

67. The obligation to perform their task in good faith will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes. They have an obligation to make a genuine attempt to discharge the relevant functions, having regard to the circumstances in which they are exercised, such as having limited resources, and established procedures. The exercise of a power in good faith requires an honest and conscientious approach.

68. However, before the Tribunal could form the opinion that an officer of an agency has failed to exercise a function in good faith it would be necessary to form the view that the officer’s conduct demonstrates something more than honest ineptitude.

69. In this matter, the only officer who has failed to properly exercise a function under the GIPA Act is Mr Cramp. He conceded that he had told the Applicant that he would undertake a particular search but that he had not done so. I am not satisfied that this failure was due to a lack of good faith or that the officer’s conduct demonstrates something more than honest ineptitude.

70. In the circumstances I am not satisfied that that an officer of the Respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. I therefore decline to make the requested referral under section 112 of the GIPA Act.

71. In the circumstances it is my view that the Respondent’s initial determination was not the correct and preferable one because the Respondent had not exhausted the reasonable searches for the requested information. The Respondent subsequently located further information and determined to release that information. When the totality of those determinations is taken into account it is my view that the Respondent has now made the correct and preferable determination. Accordingly that determination should be affirmed.

Orders

1. The decision under review is affirmed.

2. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.

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: 11 November 2016