Jeray v Blue Mountains City Council

[2021] NSWCATAD 67

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Jeray v Blue Mountains City Council [2021] NSWCATAD 67

Hearing dates:

On the papers

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R L Hamilton SC, Senior Member

Decision:

(1) The decision of the agency on the original application is affirmed.

(2) The matter is remitted to the respondent to consider and decide within 28 days of publication of these reasons whether to provide the applicant with the list of information prepared by it in response to the original application.

Catchwords:

GOVERNMENT INFORMATION – refusal by agency to deal with application as valid – sec 41(1)(e) GIPA Act- meaning of ‘reasonably necessary information’ in application

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

Department of Communities and Justice v Zonnevylle 2020 NSW CATAP 126 and [2019] NSWCAT 215 (first instance)

Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341.

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Ivan Jeray (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Marsdens Law Group (Respondent)

File Number(s):

2020/00300586

Publication restriction:

Nil

REASONS FOR DECISION

1. This matter concerns an application under the Government Information (Public Access) Act 2009 (GIPA Act) which relates the “North Face 100/Ultra Trail event” which has been an annual Activity in the local government area controlled by the respondent Council (agency). The agency has refused to deal with the application on the basis that it is invalid under section 41 (1) (e) of the GIPA Act because it is considered there is insufficient information in it for the agency to identify the records being sought. The parties have agreed that the matter is suitable to be dealt with on the papers.

2. The terms of the application were as follows “All records concerning the North Face 100/Ultra Trail event. If there are many records please provide me with an index of records held so that I may select the documents required”.

3. The original application was rejected on the above-mentioned ground shortly after it was lodged. The applicant was advised of the reasons (sec 52 GIPA Act), and invited to amend his application so that it could become valid, together with information required to assist Council in finding the information. Shortly afterwards the applicant slightly amended by substituting in his request “a list” of documents for “an index”.

4. The applicant declined the agency’s request for further information and sought that the original decision be internally reviewed. He then sought an external review of the decision by the Information and Privacy Commission. This was done by the Information and Privacy Commissioner which upheld the original decision

5. The matter is now before the Tribunal for administrative review. The issue before me is whether the Council was correct to decide that the GIPA application was not valid by reason of provisions of sec 41(1)(e) of the GIPA Act.

Jurisdiction

6. The Tribunal has jurisdiction to review the agency’s decision under s100 GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 NSW (ADR Act)); ss9 and 63 of the ADR Act; read together with s30 of the Civil & Administrative Tribunal Act 2013 NSW (CAT Act). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s63(1) ADR Act). The Tribunal makes its own decision in place of the respondent without any presumption that the agency’s decision is correct.

7. The role of the Tribunal is to review the merits of the refusal decision of the agency on the access request, taking account of the scope of information that falls within the request and has been considered for access, the information which has been provided to the applicant, and any further relevant material. It is not a review of the decision of the agency on any internal review of the original access decision requested by the applicant.

8. The respondent agency has the onus to justify its decision by sec 105 GIPA Act.

The evidence

9. The original application to the agency requested 2 classes of information being: 1) “All records concerning the North Face 100/Ultra Trail event”; and2) “an index of records held”. The original application was amended by seeking “a list of records held”.

10. The council officer who made the decision has given evidence that she assessed the application for 3 hours and conducted a preliminary title word search in the council’s records management system and held an internal consultation with another council officer.

11. The officer concluded that she would be unable to identify and locate all the records relating to the event without further information from the applicant. All

12. Her file note is in evidence and indicates that her preliminary searches and discussions have identified some 700 mentions of the event in their records management system; that there may be other records in other systems which they use; that these records were identified by using a search for the title word in documents and that it was highly likely that other records might not contain the event name in the title; that the council’s involvement in the event indicates that there will be a number of operational areas of covered including management of the event; traffic; emergency; risk; crowd, spectators and competitors; and development applications. The Council officer also noted that the event has been running for 12 to 13 years and the records are likely to be extensive.

13. The application itself requested “all records”. The agency is required to search for all relevant records relevant to the request (sec 53)

14. In the case of Department of Communities and Justice v Zonnevylle 2020 NSW CATAP 126 (Zonnevylle) the Appeal Panel stated that:

“ [42] In our view the ordinary and grammatical meaning of the text of sec 41(1)(e) is that, to be valid, an application for government information must include such information as is reasonably necessary to enable all the government information applied for to be identified. Applying the contemporary approach to statutory construction, we need to consider the purpose of the requirement to identify the government information is revealed by the legislative context, the object of the GIPA Act and the consequences of construing that requirement is ordinary or grammatical sense. That overall context will be relevant if it assists in fixing the meaning of the requirement to identify the government information.

[43]   We have concluded from the overall context that the purpose of sec 40 (1)(e) is to provide certainty as to when the “legally enforceable right” to be provided with access to government information arises. That right arises when a person makes a valid access application: SS 4, 9 and 41. The requirement to identify the government information ensures that an agency has sufficient information to enable to identify, consider and make a decision about the government information applied for. We explain our reasons for reaching this conclusion and for not agreeing with the Tribunal’s severability conclusions in more detail below.”

15. Many provisions of the the GIPA Act are built upon a foundation of ‘reasonability’, which calls for an objective view to be adopted in dealing with applications.

16. The application itself must contain ‘such information as reasonably necessary’ (s 41(1)(e)

17. The agency must conduct ‘reasonable searches’ and is not obliged search to the extent it is ‘unreasonable’ or a substantial diversion of resources (s 53 GIPA Act). The agency may refuse to deal with an application if this would require an ‘unreasonable’ diversion of agency resources (s 60 GIPA Act). Access to information is to be made available in a ‘reasonable way’, with no ‘unreasonable’ diversion of agency resources (s 72 GIPA Act).

18. In my view, in order to provide certainty as to when the legally enforceable right to be provided with access to government information arises a reasonable degree of specificity about the information sought is required. The approach to adopt is akin to that which is taken towards general discovery in civil litigation. Discovery is not a process intended to give a licence for ‘fishing expeditions’ Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341.Fishing expeditions can impose a substantial burden if the recipient cannot accurately determine the scope of the request. This can be onerous, sometimes shading to oppression. It all depends on the particular context and the wording of the notice but an application for general discovery of “all documents” held by a party raises an issue of validity. Similarly, a GIPA application for “all records” may not be valid due to a lack of reasonable specificity, depending on the circumstances.

The submissions

19. The respondent submits that without further detail of the nature of information sought there is a real likelihood that all of the information applied for will not be able to be identified and produced.

20. It further submits that in order to meet its duty the agency must be able to identify all the relevant information and make public interest decisions in relation to granting applicant access to the applicant.

21. The Council has explained to the applicant its reasons for treating the application has not a valid application and invited the applicant to provide further information to allow the application to be narrowed and become valid

22. The applicant’s submissions are that section 41(1)(e) is only applicable when the agency cannot comprehend what the applicant seeks access to, because the application is either illegible or legible but does not provide sufficient information for the agency to ascertain or understand the information the applicant seeks access to. I note that a request may be so wide as be to either impractical or insufficiently comprehensible.

23. The applicant accepts that that part of the rationale for sec 41(1)(e) is to enable the agency to understand what the requested information is to enable it to conduct reasonable searches for that information.

24. The applicant submits that because the agency has been able to find some records which were captured by his application that it understands the information reasonably necessary to identify the information applied for. He does not address the issue that the agency is required to provide all information the subject of a valid application.

25. The applicant seeks to distinguish the decision of the appeal panel in Zonneville submitting the question before the appeal panel was whether the whole of the application was invalid when only part of it was considered invalid at first instance. He submits that the case did not determine the meaning of what information is reasonably necessary to enable the government information to be identified within the meaning of sec41(1)(e) of the GIPA Act.

26. The applicant relies on the decision in Zonneville at first instance [2019] NSWCAT 215 which held that sufficient information was provided about certain information requested which was considered severable. The Appeal Panel’s decision is the precedent to be followed, and the rationale for the requirement of the applicant to supply information reasonably necessary to enable the agency to properly respond is compelling.

27. The applicant further submits that the council officer’s statement that the applicant should provide greater detail was not required by the GIPA Act. This submission does not take account of the ‘reasonable assistance’ requirement in sec 52(3) GIPA Act. The applicant submits that it contradicts the basis of the decision as to the invalidity of the application

28. The applicant further submits that by treating a GIPA application as invalid for failure to satisfy sec 41(1)(e) undermines the object of the Act. I am unable to accept this. Specific provision is made for the validity requirements. Provision is made for applications to be amended so as to narrow down the scope of the application to within reasonable limits to enable the agency to understand the scope of the application and the searches that it must reasonably conduct.

29. The applicant further submits that the submission that there is a real likelihood that all of the information applied for will not be identified and produced without details does not invalidate the application. I disagree in these circumstances. On the evidence the respondent’s submission is well founded. The applicant also submits that it is unreasonable for applicants to be expected to know details of the information which is held. I am unclear where this submission goes.

30. The applicant seeks Tribunal orders for the provision of lists. The agency cannot be compelled to create a list (sec 75 GIPA Act).The application only captures information held by the agency at the point the GIPA application was lodged (sec 53(1). If a list is created as a new record by the agency access can be granted to it (sec 75).

Consideration

31. I therefore find having regard to the evidence that the application originally lodged by the applicant for “all records” relating to the event does not contain a reasonable amount of information to enable the agency to perform its function under the GIPA Act. There is a vast amount of information which is potentially caught by the application, and the agency needs to be able to meet its obligations to the applicant to exercise his legal right to information. The original is too generally expressed to enable the agency to perform its function and therefore I find that it was justified in treating the application as invalid

32. The 2^nd part of the original application sought an ‘index of records’. The evidence does not address the question of whether there was such an index in existence at the time of the original application, though I am prepared to accept that there was no such information in the form of an index. The agency is only required to provide access to information that it holds at the time the application is received (s53(1) GIPA Act). If the request for “all records” is invalid due to its generality, so too as a matter of logic would a request for an index of such unspecified documents, if something existed. So that part of the application is also invalid. The agency is not obliged to create new information or a new record of information in response to a request, but can provide access to a new record of information if created (sec 75 GIPA Act).

33. The applicant later amended his application by seeking “a list” of documents. By that time the agency had produced “a list” in response to the original application as referred to in the evidence of the council officer. The operative GIPA application was the amended version. But the list is not a list of all records relating to the event.

34. This is a further item of government information which is amenable to a GIPA application. The list was prepared after the original application was lodged with the agency.

35. The practical solution in this case would seem to be that the matter is remitted to the agency to give consideration as to whether the information in the list prepared by the council officer of documents with the event name in the title can be released to the applicant under s 75 GIPA Act.

36. The applicant made a late additional application seeking a declaration from the Tribunal that the Information and Privacy Commissioner (IPC) in its decision had erred by failing to provide sufficient reasons for its decision upholding the original decision of the agency. The IPC was not invited to join or intervene. The issue was not the subject of submissions from the IPC. However I find that on the face of it there is no error in the approach and the reasons given by the IPC.

Orders

1. The decision of the agency on the original application is affirmed.

2. The matter is remitted to the respondent to consider and decide within 28 days of publication of these reasons whether to provide the applicant with the list of information prepared by it in response to the original application.

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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

Amendments

19 March 2021 - Paragraph 5 - Typographical error corrected

Decision last updated: 19 March 2021