Kumari v NSW Treasury

[2025] NSWCATAD 146

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Kumari v NSW Treasury [2025] NSWCATAD 146

Hearing dates:

16 May 2025

Date of orders:

19 June 2025

Decision date:

19 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) The respondent is to release to the applicant items 2.3, 5.19 (with redaction of a specific individual’s name) and attachment 4 in its confidential bundle of documents.

(2) The decision under review is otherwise affirmed.

Catchwords:

Administrative Law - administrative review – Government information – reasonable searches

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

State Records Act 1998 (NSW)

Workers Compensation Regulation 2016 (NSW)

Cases Cited:

BDK v Department of Education and Communities [2015] NSWCATAP 129

Crewdson v Central Sydney Area Health Service [2002] NSWCA 345

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Hewitt v Grabicki 794 F 2d 1373

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Re Resch and Dept of Veterans’ Affairs (1986) 9 ALD 380

Taylor v Destination NSW [2017] NSWCATAD 272

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

YG & GG v Minister for Community Services [2002] NSWCA 247

Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108

Texts Cited:

None

Category:

Principal judgment

Parties:

Bindu Kumari (Applicant)
NSW Treasury (Respondent)

Representation:

Solicitors:
Thakur Law Group (Applicant)
NSW Treasury (Respondent)

File Number(s):

2024/00437257

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of documentation lodged by the respondent with the Tribunal on a confidential basis and the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (NSW Treasury), are prohibited.

REASONS FOR DECISION

Background

1. These proceedings concern a request that Bindu Kumari (the applicant) made to NSW Treasury (the respondent) on 9 August 2024 (the GIPA request) for the release of information under the Government Information (Public Access) Act 2009 (NSW) (the NCAT Act).

2. The applicant sought access to the following information:

1. Please provide a date-wise list of complaints received by NSW Treasury officials from Ms Kumari through her NSW Treasury email address, Microsoft Teams, or other mediums, action taken, along with their status, in accordance with the accepted definition of a complaint by NSW Treasury, namely: “A statement that something is unsatisfactory or unacceptable”. In the event that any or all of such communications have been refused consideration as complaints, despite fulfilling the criteria to be accepted as such, please provide the specific legal provisions that justify the refusal to register complaints despite fulfilling legal requirement of compliant.

The specific timeframe for this request is from January 1, 2022, to April 3, 2023.

2. Kindly provide copies of all surveillance records, including but not limited to, “Five Eyes surveillance/intelligence”, whether initiated, decided to be initiated, or communicated via email to Ms Kumari, irrespective of whether such surveillance was conducted. Additionally, please furnish the legal provisions governing the use of such surveillance in relation to Ms Kumar, detailing its objectives, scope, applicability, the entity responsible for conducting the surveillance, the entity requesting it, all related communications, and the corresponding report. Furthermore, please provide copies of the authorising documents from Australian agencies permitting NSW Treasury to employ such surveillance concerning Ms Kumari. We would like to emphasise that the request pertains to all supporting information and documents in effect as of the date the decision was made and communicated.

3. Kindly provide us with the documents from NSW Treasury that outline the procedures and processes regarding ‘serious misconduct’, which includes bullying, harassment, or discrimination; allegations of misconduct, fraud, corruption, or criminal acts; discrimination industrial disputes; and serious health or safety concerns since January 2022.

4. Please provide return-to-work program of NSW Treasury as per part 6 of Workers Compensation Regulation 2016 since January 2022.

5. Please provide all information and documents related to both formal and informal performance management processes, regardless of whether they have been finalised. Specifically, please provide copies of all email communications from NSW Treasury to Ms Kumari concerning such performance management process pertaining to her. If NSW Treasury has not communicated with Ms Kumari regarding this matter, please provide the legal justification for the decision not to notify her of such performance management. Additionally, furnish all relevant documents, including feedbacks and communications, and any records of actions taken or not taken in relation to this matter.

We request the submission of all relevant correspondence pertaining to the aforementioned request, dating from January 01, 2022, up to and including the date of this communication, irrespective of the communication medium or form employed (including, but not limited to, electronic mail, letters, facsimiles, courier services, hand-deliveries, et cetera). Please ensure that email correspondence be provided in their unaltered, original state, such as Microsoft pst files. This request extends to all email communications relevant to the matter, including those sent from or received at personal email accounts. In the event of refusal or rejection of any of the above requests, we kindly request the concerned officer to provide specific legal provisions supporting such refusal or rejection.

Decision at first instance

3. On 6 September 2024, the respondent issued a Notice of Decision under the GIPA Act and decided to provide access to some of the information sought under s 58 of the GIPA Act, but it also decided to refuse access to some of the information sought under s 58(1)(d) of the AGIPA act, on the basis that there was an overriding public interest against disclosure of that information.

Request for internal review

4. On 30 September 2024, the applicant applied to the respondent for an internal review of its decision dated 6 September 2024, namely:

1. A decision to provide access or to refuse to provide access to information in response to an access application; and

2. a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant).

5. On 12 November 2024, the respondent issued a Notice of Internal Review decision. The respondent considered the applicant’s submissions and limited its decision to the following parts of the decision at first instance:

(1) basis of searches for information provided on page number 3 of the Notice of Decision;

(2) incompleteness of records provided in response to request 1 in the access application;

(3) missing relevant emails from the documents provided in response to request 1 in the access application;

(4) inconsistency with the dates and/or version of policy documents provided in response to request 2 in the access application;

(5) inconsistency with the dates and/or version of policy documents and missing internal policy in response to request 3 in the access application;

(6) inconsistency with the dates and/or version of policy documents and missing internal policy in response to request 4 in the access application;

(7) inconsistency with the dates and/or version of policy documents and missing emails and feedback from the documents provided in response to request 5 in the access application.

6. The respondent stated, relevantly:

Please note that I am not required to consider additional requests for information outside the terms of your initial application nor am I required to answer questions. However, to assist you, I have used my discretion to provide you with some additional information. For any outstanding out of scope requests, I encourage you to submit a new GIPA application.

The documents that are the subject of this internal review are registered as documents 1 to 27 of the schedule of documents below.

Searches for information

7. The respondent noted its obligation to conduct reasonable searches for the government information requested in the GIPA request and it stated that it requested additional searches to be conducted by its Records & Information Management (TRIM) team. In addition to searches conducted by the Finance and Services Division, the TRIM team has access to all information that it holds.

8. These searches revealed additional documents and the respondent stated:

…I have been advised that all information meeting the terms of your request that could be located has been provided. This has been certified by the Executive Director Finance and Service and the Associate Director, Information Management. Based on these certifications, I am satisfied that reasonable searches have been undertaken. I have also been advised that some of the information requested by you is not held by Treasury.

In total, 27 additional documents were located and provided to me, including a document that was created under s 75(1) of the Act. Please see the Schedule of Documents enclosed with this Notice of Decision for a summary of those documents and my decision in relation to each.

9. The respondent stated that it applied the public interest test in the manner required by s 13 of the GIPA Act, as follows:

1. It identified the general public interest considerations set out in s 12 of the GIPA Act, and that the information requested was the applicant’s personal information, as public interest considerations in favour of disclosure of the requested information; and

2. It conceded that none of the public interest considerations against disclosure that are set out in the table to s 14(2) of the GIPA Act apply to this matter.

10. However, the respondent referred to s 75(2) of the GIPA Act, which provides that an agency is not required to do any of the following in responding to an access application:

(a) make a new record of information held by the agency;

(b) update or verify information held by the agency;

(c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

11. Nevertheless,, the respondent decided to include a table (document 27 in the schedule of documents), which was created under s 75(1) of the GIPA Act, “to answer some of your questions where possible. Where any of your inquiries have not been answered or documents were not provided as they were out of scope of you original application, you would need to lodge a new GIPA request for that information.”

12. The respondent decided to provide access to information to the applicant electronically

Application for administrative review

13. On 25 November 2023, the Tribunal received the current application for administrative review, which raised the following grounds:

A decision that government information is not held by the agency; to provide access or to refuse to provide access to the information in response to an access application; to refuse to confirm or deny that the information is held by the agency; a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), actions and decisions of stakeholders involved in a workers compensation claim that do not align with their legal obligations.

Procedural matters

14. On 20 January 2025, Senior Member Higgins conducted a case conference, at which Mr Thakur appeared for the applicant and Mr Brandt appeared for the respondent. There was no appearance on or on behalf of the Information Commissioner. The Senior Member made the following orders:

1. By 3 February 2025, the applicant is to file and serve a list of the information (other than that which is publicly available), which has not been responded to in the internal review decision, which she asserts that the respondent holds but failed to identify in its internal review decision;

2. By 12 February 2025, the respondent to file and serve a written response to the list provided by the applicant. Including details of the searches made for the documents in that list; and

3. The matter was listed for a further case conference on 3 March 2025.

15. The Senior Member noted that Mr Brandt stated that the emails provided in the internal review decision were emails that the applicant had encrypted and these were not initially accessible. Some of the information is publicly accessible and a written response was included in the internal review decision regarding the questions that Mr Thakur had asked. Therefore, there was no further information held by the respondent that responded to the GIPA request.

16. On 3 March 2025, Senior Member Ziegler conducted a further case conference at which Mr Thakur appeared for the applicant and Mr Jap and Mr Darragh appeared for the respondent. The Senior Member made the following orders:

1. The respondent is to file and serve its evidence and written submissions by 24 March 2025;

2. The respondent is to file all confidential material with the Tribunal by 24 March 2025;

3. The applicant is to file and serve all evidence and written submissions by 14 April 2025;

4. The respondent is required to file and serve any evidence and submissions in reply by 28 April 2025;

5. The parties are to provide each other with a list of witnesses required for cross-examination by 9 May 2024; and

6. The matter is listed for hearing on 16 May 2025.

The hearing

17. The matter came before me for hearing on 16 May 2025. Mr Thakur appeared for the applicant by way of audio-visual link and Mr Jap and Mr Darragh appeared in person for the respondent. There was no appearance by or on behalf of the Information Commissioner.

Respondent’s case

18. The respondent relied upon the following documents, which were admitted into evidence:

1. Email from Nick Wall to Sean Darragh dated 20 March 2025 – Ex A; and

2. Statement of Asha Boudville dated 12 February 2025 – Ex B.

19. The respondent also relied upon its written submissions filed on 24 March 2025 and 24 April 2025, respectively.

20. The respondent also sought leave to call oral evidence. The applicant did not object to this request and the Tribunal granted leave accordingly.

Evidence of Nick Wall

21. Mr Wall was called and affirmed. He stated that he is the Associate Director of Information Management for the respondent and he has been employed by the respondent since 2017. He has a team of five (5) staff and one of their roles is to support the OGC team with GIPA requests, if required. He stated that there were three phases of searches conducted in response to the current GIPA request. He provided support across the Microsoft 365 Shared Services model and also searched DCS and GovConnect as well as a search of the User’s mailbox for emails & MS Teams messages. Three of the searches were conduced using the classic interface and one search used the Premium interface.

22. Mr Wall said that he became involved with item 1 of the GIPA request when the GIPA request was received. He managed searches locally, but at the local level he could not access the email inbox of Ms Culnane (HR) because she had left. He initially searched for emails before she left (1 January 2022 to 18 June 2022). He then searched the same date range between the applicant and another and he then searched the same date range for emails between the applicant and Ms Culnane. He later learned that HR had searched officers’ mailboxes and Sharepoint sites for the range from 1 January 2022 to 3 April 2023 (which included MS Teams messages).

23. Mr Wall stated that he was on leave when the Internal Review was conducted and he issued a delegation to Ms Boudville. He stated that Ms Boudville conducted further searches seeking two items: (1) MS Teams messages from 1 January 2022 to 3 April 2023; and (2) Separate searches of the applicant’s mailbox for emails between the applicant and nineteen named officers. She then did searches of encrypted emails because Outlook allowed encryption. HR supplied the encrypted emails and Ms Boudville took them to Department of Customer Service (DCS). However, because of the level of encryption used, DCS could not open the emails. It was therefore necessary to seek to get these unencrypted by GovConnect.

24. Mr Wall stated that he returned from leave after the case conference and he then ran further searches, specifically looking for emails in the applicant’s inbox from 1 January 2022 to 3 April 2023. This produced three extracts on the classic Microsoft 365 platform, namely: (1) emails that were sent and received; (2) meeting requests; and (3) other unindexed items. He submitted these to GovConnect to unencrypt and then submitted them to HR for review. He decided that it was necessary for the IT operations Team to meet with GovConnect in April 2024, to ensure that all items were found, as it was necessary to have security permission to export encrypted emails. As a result of this meeting, it was ascertained that if the searches were done using Classic Content or Classic e-discovery, encrypted documents would be located but not exported, but if the Premium Classic e-discovery module were used, encrypted documents would be located and exported.

25. Mr Wall then repeated the previous searches using the Premium Classic e-discovery module for the relevant period and undertook a comparison using Excel. This identified approximately 105 further messages, the bulk of which were incoming emails in March/April 2023 and 16 or 17 emails in 2022. He sent the latter to HR for review. He said that the applicant’s mailbox was searched because emails are set for indefinite retention.

26. Mr Jap asked Mr Wall to explain the difference between standard and exhaustive/forensic searches. Mr Wall stated that in standard searches, keywords are used and it is accepted that there may be typographical errors and that not all items may be found. However, the latter involves a search of the whole inbox and it is then necessary to look for specific items. The latter is used for subpoenas and responding to other regulatory demands.

27. Mr Thakur did not wish to cross-examine Mr Wall and he was excused from further attendance.

Respondent’s written submissions

28. The respondent stated that it relied upon the principles set out in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) regarding the criteria for reasonable searches under s 53(2) of the GIPA Act.

29. In its submissions filed 24 March 2025, the respondent noted that the applicant’s submissions raised a possible deficiency in the disclosure of information (emails held by the respondent that were not disclosed with the decision at first instance). The applicant also complained that the respondent used examples that she provided in the internal review to conduct further searches rather than using a broader search methodology.

30. The respondent argued that it conducted reasonable searches to identify information that was within the scope of the GIPA request and all relevant documents that were located were provided to the applicant. However, it is not required to provide information that is out of scope of the GIPA request.

28. The respondent stated, relevantly:

17. The respondent’s submission is that the applicant has not provided sufficient evidence to displace the fact that the respondent has acted in good faith and has undertaken reasonable searches in accordance with the methodology as outlined in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173.

32. The respondent stated that following the case conference on 3 March 2025, it conducted further searches that were exhaustive and forensic in nature. These were undertaken by Mr Wall and they go above and beyond what is required in response to a GIPA request and more-closely resembles searches that are required during a regulatory regulation. Mr Wall also described the barriers and complexity in undertaking searches of an inbox where the owner had taken the unusual step of encrypting their own email messages. These searches produced over 4,800 documents, which were then cross-checked over several days and took 1.5 hours to complete.

33. The respondent argued that in relation to para 1 of the GIPA request, the applicant’s submissions raised two documents that were relevant and which were not technically provided to the applicant with the decisions. However, as a result of the applicant encrypting these documents, the respondent was unable to export them using its standard search platforms and it was necessary to involve experts from GovConnect to search for, decrypt the emails and to export them in Outlook format.

34. The respondent stated, relevantly:

26. The respondent has decided to provide eight documents to the NCAT on a confidential basis at Attachment 4 and Attachment 7. These documents correspond to the table in Attachment 1 and were also mentioned in AS2 at page 1. The six documents in Attachment 4 are considered to be out of scope and the two documents in Attachment 7 were withheld from the applicant as a small part of the documents contained the names of individuals not related to the matter.

27. The respondent has also decided to provide the applicant with two documents in native Outlook format that was already provided to the applicant in pdf format as a result of issues with the encryption of documents. As the documents are not available in their native format, the respondent can provide to the applicant as RS Attachment 8.

28. The respondent maintains that it has disclosed everything that could be located with reasonable searches and which was relevant to the application.

35. The respondent stated that it had already addressed the issue of surveillance and reiterates that it does not conduct surveillance of people but of IT equipment in accordance with Circular DCS 2022-03. It follows, that the respondent does not hold these records because they were never created in the first place.

36. In relation to the applicant’s request for a copy of the applicable “IT Acceptable Use Policy” since January 2022, the respondent stated that there is no basis for the applicant interpreting “records not held” to mean that a document has been deleted from the records that it maintains. The respondent relied upon the Tribunal’s comments in Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108:

32. With regard to the second point identified by Roden J, the decision of BDK v Department of Education and Communities [2015] NSWCATAP 129 and the cases cited therein were cited by the respondent. In that case the Appeal Panel said as follows:

In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While ‘misconceived’ and ‘lacking in substance’ may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ‘frivolous’ or ‘vexatious,’ conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.

…

The Tribunal accepted that the appellant had a legal right to bring the proceedings and apply for relief of the kind given by PPIPA. Nonetheless, the Tribunal concluded that they were ‘vexatious.’ It reached that conclusion having regard to the way the dispute over the contents of the Report had been prosecuted by her in the past and the way it was now being prosecuted. The Tribunal drew on the following, observation of Handley JA in Crewdson v Central Sydney AHS [2002] NSWCA 345 (26 November 2002), where the Court dismissed an appeal from a decision of the Appeal Panel that had reversed the Tribunal at first instance:

24 The appellant’s attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans’ Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki [1986] USCA9 1380; 794 F. 2d 1373 (9th Circuit 1986), 1378.

37. The respondent argued that it has presented relevant and credible material to support its submission that it has exceeded its obligations under s 53(2) of the GIPA Act and it has fully discharged its obligations. Therefore, the correct and preferable decision is to affirm the decision under review.

Respondent’s submissions in reply

38. The respondent noted that the applicant seems to assert that:

1. It had failed to produce a schedule identifying each disputed document;

2. Its searches were limited and did not include all relevant sources. Therefore it failed to meet its statutory obligation;

3. Its materials contain material misrepresentations and selective disclosures that impair the applicant’s ability to respond meaningfully; and

4. It gave inconsistent explanations regarding encryption.

39. The applicant seeks order for the release of all requested information and comprehensive searches of all relevant sources.

40. In response to issue (1), the respondent stated that it produced a schedule which was released to the applicant with the decision at first instance and the internal review decision.

41. In response to issue (2), the respondent stated that its searches were reasonable and correlate with the terms of the GIPA request.

42. In response to issue (3), the respondent relied upon its previous written submissions.

43. In response to issue (4), the respondent relied upon the evidence of Mr Wall and Ms Boudville. It also stated, relevantly:

11. We further submit that the applicant is confusing standard email system encryption which the applicant points out is a “standard and integral security protocol within the Treasury’s IT infrastructure and is routinely employed as part of ordinary business communication”, with an optional user function within MS Outlook, that allows an end-user to encrypt their specific email file. The former is a built-in function of an email system and poses no impediment, for extraction and retrieval by an organisation using standard e-discovery software. The latter is a rarely used encryption option where a user can elect to encrypt their individual email file. This bespoke encryption requires a more-advanced e-discovery tool, and therefore, the use of M365 Premium software. Once M365 Premium was utilised, Treasury was able to export the files in the required format to enable review by relevant staff.

44. The respondent also argued that the applicant’s submissions relating to timesheets, relate to information that is outside the scope of the GIPA request and it asserted that it was inappropriate for the applicant to use the GIPA process for collateral purposes.

Respondent’s oral submissions

45. Mr Jap argued that the respondent had conducted reasonable searches, including both exhaustive and forensic searches for information sought in the GIPA request. He argued that the requests that are noted in the applicant’s submissions filed on 9 April 2025 are outside the scope of the GIPA request.

Applicant’s case

46. The applicant did not file any evidence, but she relied upon written submissions that were filed on 9 April 2025.

47. As noted by the respondent, the applicant asserted that: (1) It failed to conduct reasonable searches; (2) It improperly relied on “not held” grounds; (3) There are inconsistencies in its position regarding encryption and search sufficiency; (4) It improperly narrowed the search scope; (5) The submission that no surveillance records exist because they were never created “raises serious legal and ethical concerns;” and (6) It mischaracterised an email and this “reflects improper administrative conduct…,” allegedly in breach of ss 38(2) and 71 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

48. The applicant asserted that the Tribunal has power to look beyond the surface of submissions and assess whether factual misrepresentations have been made in good faith, whether they are consistent with the evidence, and whether material has been deliberately withheld or misrepresented.

49. The applicant concluded that she sought the release of all information and documents requested in her Internal Review application and in her submissions to the Tribunal dated 3 February 2025 and 3 March 2025. She also sought orders that the respondent conduct comprehensive searches of:

1. The email accounts of all relevant officers, including but not limited to those named in her submissions;

2. Internal messaging platforms such as Teams and phone messages; and

3. Any other electronic document storage systems.

Applicant’s oral submissions

50. The Tribunal drew Mr Thakur’s attention to the fact that the applicant has a practical onus of establishing that there is a reasonable basis for believing that further information that is within scope exists and is held by the respondent. However, the Tribunal was not able to locate any evidence from the applicant on this issue.

51. Mr Thakur eventually responded to the effect that “the Tribunal can make a decision.”

52. The Tribunal also asked Mr Thakur if there was any evidence from the applicant to establish that the further information referred to in the written submissions is within the scope of the GIPA request?

53. Mr Thakur did not respond immediately, but he ultimately stated to the effect that the Tribunal can make a decision.

Confidential evidence

54. The Tribunal determined that it was necessary to consider evidence that the respondent had filed on a confidential basis and that this part of the proceedings should be conducted in the absence of the applicant under s 107 of the GIPA Act.

55. Accordingly, Mr Thakur was excused from the proceedings and the Tribunal informed the parties that upon completion of the confidential hearing, it would reserve its decision.

Confidential hearing

56. [NOT FOR PUBLICATION]

57. [NOT FOR PUBLICATION]

58. [NOT FOR PUBLICATION]

59. [NOT FOR PUBLICATION]

60. [NOT FOR PUBLICATION]

Decision reserved

61. Upon completion of the confidential hearing, the Tribunal reserved its decision.

Consideration

Legal principles

62. The legal principles under consideration are not in dispute.

63. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a “reviewable decision”.

64. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

63. Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

65. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

The GIPA Act

66. Section 9(1) of the GIPA Act relevantly provides, “A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.”

67. I am satisfied that the Internal Review Decision dated 12 November 2024 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.

68. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below:

1. 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.

2. Section 12 provides that there “is a general public interest in favour of the disclosure of government information” and the NSW Information Commissioner “can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies”.

3. Section 13 sets out a “public interest test” which requires a determination of whether “on balance” there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

69. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the “public interest test” under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

70. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

71. Section 14(2) relevantly provides, that “The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.”

72. It is only necessary that the considerations in the s 14 Table “could reasonably be expected” to have the effect identified. The onus is on the agency “to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect”: McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a “reasonable” administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a “mere risk or chance”: Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

73. Section 53 provides:

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.

74. Section 61 provides:

Notice of decision to refuse to provide access

Notice of an agency’s decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following-

(a) the agency’s reasons for its decision,

(b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based,

(c) the general nature and the format of the records held by the agency that contain the information concerned.

75. Section 73 of the GIPA Act provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world.”

76. Section 105 places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

NCAT Act

77. The applicant sought to rely upon the following provisions:

1. Section 38(2), which provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice; and

2. Section 71, which provides that a person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect.

Issues for determination

78. I have decided that it is appropriate to address each of the issues raised by the applicant as follows.

(1) The respondent failed to conduct reasonable searches

79. In determining this issue, I have applied the principles set out by the Appeal Panel in Wojciechowska to the evidence before me.

80. The respondent has filed evidence which establishes that it conducted extensive searches, including forensic searches, in response to the GIPA request and despite her complaints in her written submissions, the applicant did not challenge the respondent’s evidence.

81. I accept that the respondent conducted searches using both the classic MS e-discovery platform and the Premium MS e-discovery platform, and that searches using the Premium MS e-discovery platform are generally only required when responding to subpoenas or regulatory investigations.

82. However, in this matter, these searches were required because of the level of end-user encryption that the applicant elected to apply to her email in-box. It was not possible to export the applicant’s encrypted emails using the Classic e-discovery platform and its use required assistance from an external provider (GovConnect).

83. Accordingly, I am satisfied that the respondent conducted reasonable searches.

(2) The respondent improperly relied upon “not held” grounds

84. While the applicant made this complaint in her written submissions, she did not file any evidence that satisfies her practical onus of proving that there is a reasonable basis for her complaint.

85. Based on the respondent’s evidence regarding searches, which I have accepted, I am satisfied that it does not hold any further information that is within the scope of the GIPA request.

(3) There are inconsistencies in its position regarding encryption and search sufficiency

86. Based on the evidence before me, I am satisfied that there are no inconsistencies in the respondent’s position regarding encryption and search sufficiency.

(4) It improperly narrowed the search scope

87. In my view, this complaint is misconceived. The evidence before me indicates that the respondent conducted more than reasonable searches to locate information that was within the scope of the GIPA request.

88. In particular, the applicant complains that the respondent failed to conduct searches of the email in-boxes of nine (9) other officers, however, she did not name any other officers in her GIPA request.

89. Accordingly, I am satisfied that the information upon which this complaint is based is outside the scope of the GIPA request.

90. I am also satisfied that the forensic searches that the respondent conducted located all messages sent to and from the applicant via the MS Teams platform.

91. While the applicant also made complaints about timesheets in her written submissions, I am satisfied that the GIPA request does not refer to timesheets. Therefore, the information upon which this complaint is based is outside the scope of the GIPA request.

92. During the confidential hearing, the Tribunal perused documents numbered 5.5.1, 5.5.2 and 5.5.3 of the respondent’s confidential bundle of documents. I am satisfied that these documents are also outside the scope of the GIPA request.

(5) The submission that no surveillance records exist because they were never created “raises serious legal and ethical concerns”

93. I accept the respondent’s evidence, which the applicant did not challenge, that it does not hold any surveillance records because none were created.

(6) It mischaracterised an email and this “reflects improper administrative conduct…,” allegedly in breach of ss 38(2) and 71 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

94. In my view, these complaints are misconceived.

95. While s 38(2) confers inquisitorial power on the Tribunal, the Tribunal must exercise that power subject to the rules of natural justice, and in this matter, the description that the respondent applied to an email in the course of creating a Schedule of Documents in response to a GIPA request is not evidence of improper administrative conduct by the respondent.

96. Put simply, the document which is referred to in the Schedule of Documents speaks for itself and the description applied to it in the Schedule of Documents is not proof of its detailed content. The description does not cause any prejudice to the applicant.

97. In relation to the complaint under s 71 of the NCAT Act, for the reasons above, I am satisfied that the description of the impugned email in the Schedule of Documents is not a false and misleading statement by the respondent.

Release of further information

98. The Tribunal is satisfied that the following information, which was lodged with it by the respondent on a confidential basis, should be released to the applicant:

1. Item numbered 2.3;

2. Item 5.19, subject to the redaction of a specific individual’s name; and

3. Attachment 4.

Orders

99. I make the following orders:

1. The respondent is to release to the applicant items 2.3, 5.19 (with redaction of a specific individual’s name) and attachment 4 in its confidential bundle of documents.

2. The decision under review is otherwise affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

19 June 2025 - Nil amendments made.

Decision last updated: 19 June 2025