Kitson v Manly Council

[2015] NSWCATAD 102

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Kitson v Manly Council [2015] NSWCATAD 102
Hearing dates:	21 April 2015
Decision date:	18 May 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Kinross, Senior Member
Decision:	The decision that Council does not hold the information is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – access to information-whether resources reasonably available to facilitate the retrieval of information stored electronically were used- whether the agency holds the information-whether creation of new information or a new record or an update of a record was required
Legislation Cited:	Government Information (Public Access) Act 2009
Texts Cited:	Australian Oxford Dictionary, 2004, Online
Category:	Principal judgment
Parties:	Bruce Kitson (Applicant) Manly Council (Respondent)
Representation:	Counsel: J E Lazarus (Respondent) Solicitors: B Kitson (Applicant in person) Maddocks Lawyers (Respondent)
File Number(s):	1410517

REASONs

Introduction

1. Manly Council is considering a proposal to build a new car park under Manly Oval. The applicant is concerned to ensure that economic forecasts for the proposal are not based on throughput data that includes any category of non-revenue parking.

Access application

2. The applicant sought access under the Government Information (Public Access) Act 2009 (GIPA Act) to car parking information in the same format as the table contained in Supplementary to Environmental Services Division Report No. 23/2013” (Exhibit “NS-1”, Tab 8; “Supplementary Report”) together with “an additional line item covering the number of cars parking using the Resident card that was introduced on 1 July 2013” for the following periods:

1. a summary of an eight-month sub-set of the information contained in the Supplementary Report (Request 1);

2. 4 months of 2013/14 data in the same format as the Supplementary Report but including a further breakdown of the non-revenue car parking to include the Manly Resident Card (Request 2);

3. 2013/14 raw data in the same format as the Supplementary Report but including a further breakdown concerning the Manly Resident Card (Request 3). (Exhibit “NS-1”, Tab 3, Access application)

Administratively reviewable decision: s 80(e) GIPA Act

3. Council decided it did not hold the information requested and it was not required to create or make a new record of information: ss 58(1)(b), 75(2) GIPA Act.

Facts

4. The Supplementary Report includes a car park throughput total figure with sub-totals for revenue parking and two categories of non-revenue parking. The Supplementary Report also includes a ratio figure, a percentage and related financial data.

5. The Manager of Environmental Operations oversees the operation of Council’s four car parks. (21 November 2014 Affidavit, [1]) She was involved in the preparation a similar report to the Supplementary Report. [22] She swears that the car park entry and exit data is collected at ticket machines at each of the four car parks [11]; that Council does not receive the ticket machine data in an electronic form that is compatible with the Council’s other information technology systems [19]; that the ticket machine software does not produce summaries of the raw data in an accurate or meaningful way [19] and that preparation of the summary information in the Supplementary Report requires manual handling after the raw data is printed from the ticket machines. [22] The printing process for a 12 month period can take two days. [21] At hearing, the Manager testified that the data with a “$” in front of it in the Supplementary Report is financial data from the financial system. I accept this uncontroverted evidence and all of the evidence given in her two affidavits and at hearing.

Consideration and conclusions

Did Council in searching for information use resources reasonable available to facilitate the retrieval of information stored electronically?

6. An agency is obliged to undertake reasonable searches extending to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically: s53(3) GIPA Act. The existence of the Supplementary Report itself evidences the fact that the raw data underpinning the report ‘exists in Council’s IT infrastructure’ (Exhibit “NS-1”, Tab 6, Council access decision) and the fact that Council can retrieve it and prepare reports. The applicant submitted that he expected the process of preparing versions of the Supplementary Report was automated to retrieve data, apply formulas and present in a table form i.e. “at the click of a button”. (Applicant’s submissions [33], [35-36], [41-45], [48]) The evidence does not support the existence of this capability in the ticket machine system at the time of the access application.

7. In her affidavit dated 21 November 2014 the Manager of Environmental Operations swore that she searched Council’s electronic record keeping system and did not locate the information sought. [17] There is no evidence to show that Council searched the ticket machine software for the aggregated data represented in the Supplementary Report or for a report in format of the Supplementary Report. The findings of fact however show that the ticket machine software does not produce accurate and meaningful summaries nor could the raw data be electronically transferred to Council’s IT system in a compatible form (to be electronically manipulated to produce the information contained in the Supplementary Report or a report in the form of the Supplementary Report. On that basis, I am satisfied that aggregated data, ratios and percentages as they appear in the Supplementary Report were not stored in the ticket machine software and could not be produced by the ticket machine software at the time of the access application. It was therefore reasonable for Council not to attempt to retrieve the information stored electronically in the ticket machine software.

8. Under the law an agency when ‘searching’ for information is obliged to ‘use the most efficient means reasonably available to the agency’: s53 GIPA Act. The applicant contends that s53(2) requires the process of extraction and reporting to “be the most efficient available to the agency” and that the “cumbersome” system for the extraction of reports described by Council can be made more efficient. [44] While I agree with the applicant that the system for the preparation of the Supplementary Report is cumbersome and may not be the most efficient system capable of deployment, it would not have been the most efficient means for the agency to search in a location where it knew the location would not be productive of the information sought. The effect of the Manager’s evidence is that such a system as envisaged by the applicant, was not available to Council at the time of the application. The application of the word ‘available’ in s53(2) in the circumstances of this case is to be given its ordinary meaning of ‘capable of being used’ or ‘at one’s disposal’ (Australian Oxford Dictionary, 2nd ed, 2004, online), and does not extend to ‘available on the market’ or ‘possible with significant enhancements or upgrades’ in the sense suggested by the applicant.

9. I am satisfied that Council met it search obligations and failed to locate information responsive to the access application.

Does Council hold the information?

10. In response to an earlier informal request for Requests 1, 2 and 3, the applicant was advised that “car parking figures for this period had not been confirmed and endorsed by Council”. In its later access decision Council stated that to extract information comparable to that in the Supplementary Report, it would need to arrange a specialist external consultant to attend Council and that it had done so. (Exhibit “NS-1”, Tab 6, Access decision) The applicant submits he understood these statements to mean he could and would be given access to the information sought. In my view these statements are evidence of an incomplete communication between Council and the applicant about the extent to which information sought by Council would meet the terms of the information sought by the applicant.

11. In my view rather than provide circumstantial evidence as the applicant suggests of the existence of the information, Council’s statements confirm the fact that the aggregated car parking information sought had not already been compiled from the raw data at the time of the access application. I concluded in the previous section that it was not possible for Council to extract the aggregated information equivalent to that contained in the Supplementary Report (or in the format of the Supplementary Report) from the ticket machine software. At hearing the Manager testified that the consultant had attended and that the Council can now produce information about the Manly Resident Card car parking. This evidence supports my earlier conclusion.

12. An agency’s obligation to provide access to government information does not require the agency to make a new record of information held or to create new information: s75(2)(a) & (c) GIPA Act. Each of the applicant’s requests required the Council to create and populate a table with various pieces of information from both the financial system and from the ticket machine system. This process of aggregation and compilation, or putting together a selection of information from different sources into one table creates a new record.

13. An agency’s obligation to provide access to government information does not extend to creating new information by calculation from information held by the agency: s75(2)(c) GIPA Act. Requests 1, 2 and 3 require calculations to be made in the form of a ratio and a percentage. I also infer from the Manager’s affidavits and oral testimony that preparation of the summaries of the ticket machine raw data to meet Requests 1, 2 and 3 requires an additive process. Sub-sets of various categories of non-revenue car parking information have to be deduced and then subtracted. Turnover figures require division. The terms of the access application that the information be provided in the same format as the Supplementary Report, means that the calculations undertaken to derive the figures in the Supplementary Report have to be undertaken for each Request once the necessary raw data has been aggregated. I am satisfied that Requests 1,2 and 3 require the creation of new information by calculation from information held by the agency and that Council is not required by GIPA Act to undertake this process.

14. An agency’s obligation to provide access to government information does not extend to updating information held by the agency: s75(2)(b) of GIPA Act. Requests 2 and 3 (in part) request an update of the Supplementary Report i.e. they request corresponding information but for later periods of time. I am satisfied that the updating of the tables in the manner required, would create new information and that Council is not required by GIPA Act to undertake this process.

15. Requests 2 and 3 ask for an ‘additional line item covering the number of cars parking using the Resident card that was introduced on 1 July 2013.’ (Exhibit “NS-1”, Tab 3, Access application). At hearing, the Manager testified that the Manly Resident Card raw data was not stored separately in the ticket machine software but was rolled up together in a field with other raw data. The Manager testified that Council arranged for a consultant to program the capture of the Manly Resident Card however it was not possible to back capture the raw data prior to the programming of the software. (Managers Affidavit 15 December 2014, [4]) The date this occurred was not adduced in evidence however it is clear from the evidence that the ability to print reports containing Manly Resident Card raw data occurred after the access decision on 3 September 2014. This means that the extraction of the raw data for Request 2 and 3 was affected between 1 July and 3 September 2014. At [5] of the same affidavit, the Manager testifies that even after the re-setting of the parameters on the ticket machine, the same manual process of collation detailed at [20] of her Affidavit of 21 November 2014 is still required.

16. I infer from the evidence that the process to obtain the raw data on Manly Resident Card car parking entry and exits for the period before the programming of the ticket machines took place, probably entails the printing off the raw data entry and exits, then manually isolate those with a Manly licence registration, then further isolate the Manly Residents who parked under three hours and therefore parked free, before any aggregation could be done. The four car parks throughput in the Supplementary Report amounted to more than 1,000,000 in that year. I am satisfied that this process would entail creating new information- a separate list of Manly Resident Card holders free car park use even though the raw data presently exists. Council would then have to summarise the raw data to provide the relevant total for the table. This process requires the creation of new information.

17. I am satisfied that the printing of the raw data from the ticket machines itself does not create new information or create a new record as the raw data presently exists. The applicant has submitted that as this data exists, a ‘simple compilation of existing records’ should not be considered to amount to the creation of new records as contemplated by s75 GIPA Act. [31] This interpretation is inconsistent with the definition of a record which includes “any record or other source of information compiled…”: (Schedule 4, cl 10(1)) i.e. the record is already compiled, and not a record that needs to be compiled. Additionally an agency is not required to create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency, however small that effort might be: s75(2)(c).

18. The applicant submits that the Council’s interpretation of s75 of GIPA Act is literal and limits any applicant to receiving raw data or a report that already exists. [28]-[29]. I do not accept this submission. The interpretation of s75 depends upon the circumstance of each case. The fact that analysis of data and manual calculations were required of the agency to produce the information requested, and the fact that the ticket machine software is not integrated with the Council IT system meant that the information sought did not exist within the ticket machines, although the raw data did.

19. The applicant contends that Council’s position is that if the report has not been printed then, the record does not exist. (App sub, [33]) I do not agree that this is the position put forward by Council. Council’s position is that the only accurate and meaningful report it can print from the ticket machine is comprised by raw data, not an aggregation of that data. A full year of raw data takes Council two days to print. The aggregation of the raw data required manual handling at the time of the access application.

The Council searched but failed to locate information responsive to the applicant’s request. While Council has the capability and the raw data to compile tables that are responsive to the applicant’s request, I am satisfied that the preparation of the requested tables of information requires Council to update an existing record, create new information and create new records. The GIPA Act gives an agency the discretion to do this, but the legislation does not require Council to undertake these actions. Given the above, it is unnecessary for me to address the submissions concerning the substantial and unreasonable diversion of resources.

Decision

20. The decision that Council does not hold the information is affirmed.

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: 18 May 2015