McDonald v Commissioner of Police New South Wales Police Force (No. 2)

[2019] NSWCATAD 151

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	McDonald v Commissioner of Police New South Wales Police Force (No. 2) [2019] NSWCATAD 151
Hearing dates:	On the papers
Date of orders:	31 July 2019
Decision date:	31 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R L Hamilton S.C, Senior Member
Decision:	1.   The agency’s decision is affirmed. 2.   A hearing is dispensed with.
Catchwords:	GOVERNMENT INFORMATION - refusal to deal with application - unreasonable and substantial diversion of the agency’s resources
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Freedom of Information Act 1989
Cases Cited:	Cianfrano v Premier's Department [2006] NSWADT 137 Commissioner of Police v Danis [2017] NSWCATAP 7 Colefax v Department of Education and Communities No 2 [2013] NSWADT 130
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Richard Herbert McDonald (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	R H McDonald (Applicant self-represented)     Crown Solicitor (Respondent)
File Number(s):	2018/00344990
Publication restriction:	Nil

REASONS FOR DECISION

1. This is a review of another decision by the respondent agency under the Government Information (Public Access) Act2009 (GIPA Act) involving the same parties. The parties have consented to the matter being heard ‘on the papers’, and I make an order dispensing with a hearing as I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering written submissions and other documents or material lodged with or provided to the Tribunal (section 50 Civil and Administrative Tribunal Act 2013) .

2. The agency has refused to deal with part of the applicant’s GIPA Act application on the ground that to do so would require an unreasonable and substantial diversion of the agency’s resources (section 60(1)(a) GIPA Act).

3. The applicant made an application for access to information concerning the total number of all GIPA Act applications to the agency since the introduction of the Act where the decision periods were “incorrectly extended by 15 days because of the agencies (sic) misinterpretation of section 57(2) of the GIPA Act.”

4. Through correspondence and negotiation between the parties and release of recent readily available information the period of contention between the parties has been narrowed so as to apply to the time between 1 July 2010 and 30 June 2016.

5. The Tribunal’s task is to decide whether the agency’s reliance on section 60(1)(a) GIPA Act to refused to deal with the narrowed application was justified. The tribunal obtains its jurisdiction to conduct the review from section 100 of the GIPA Act, section 28 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.

6. The agency carries the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision section 105(1) GIPA Act. The Tribunal decides the correct and preferable decision on the material that it has before it (Administrative Decisions Review Act 1997 section 63(1)).

Background

7. The genesis of this dispute lies in the taxpayer’s identification of the agency’s misinterpretation of section 57(2) GIPA Act in relation to two other GIPA Act applications made by him.

8. Section 57 of the GIPA Act provides relevantly as follows:

(1) An agency must decide an access application and give the applicant notice of the agency's decision within 20 working days (the

"decision period" ) after the agency receives the application.

(2) The decision period can be extended by up to 10 working days for either or both of the following reasons (with a maximum extension under this subsection of 15 working days for any particular access application):

(a) consultation with another person is required under a provision of this Act,

(b) records are required to be retrieved from a records archive.

Note : The decision period can only be extended to allow for mandatory consultation, not just consultation that the agency chooses to do.

…

(4) The decision period can also be extended (and further extended) by agreement with the applicant.

Note : A decision by an agency to refuse to agree to extending the decision period is not a reviewable decision.

(5) The agency must as soon as practicable after the decision period is extended (and in any case within 5 working days after it is extended) give the applicant notice of any extension of the decision period (including any extension by agreement with the applicant), indicating the date on which the extended decision period will end.

9. If the application is not decided within time (as properly extended) the application fee is refundable. Apparently the agency had routinely (but probably not universally) been extending the decision period by 15 days where section 57(2) GIPA Act only permits this if both paragraphs 57(2)(a) and (b) of the subsection are satisfied. If only paragraph (a) or paragraph (b) apply the extension of the decision period is limited to 10 days.

10. The applicant made a formal complaint about the agency’s practice to the Information Commissioner. The Information Commissioner investigated and agreed with the applicant’s interpretation. As a result the applicant received a refund of one $40 application fee, and the Information Commissioner recommended a refund of the second application fee.

11. Seizing on this “victory” the applicant lodged the present GIPA Act application with the agency and made various other complaints to the media and members of Parliament about the agency’s approach. Apparently he seeks to publicise the possibility of a refund being available to other GIPA Act applicants.

12. These matters are not really relevant to the decision of the Tribunal except to the limited extent that there is some public interest in GIPA Act applicants knowing about the possibility of a refund; and in agencies interpreting section 57(2) of the GIPA Act correctly

The Evidence

13. The respondent relies on an affidavit of 25 February 2019 of Inspector M Carlon the Acting Manager of the agency’s information unit.

14. In this affidavit Inspector Carlon sets out the limited number of personnel in his unit who are trained and available to deal with approximately 6000 other GIPA Act applications each year as well as the other information requests such as subpoenas and working with children checks among others (paragraphs 9 to 21).

15. He goes on to state that until June 2016 the agency used an old computer system that did not allow an electronic identification of GIPA Act applications where the decision period extension had been incorrectly applied (paragraph 24).

16. An electronic search of the new computer system which has operated since July 2016 did identify 1866 applications which were actioned outside the 20 day minimum period allowed by the GIPA Act and those where an extension greater than 10 days had been applied.

17. He said that these 1866 recent files had been manually reviewed. This took approximately 35 hours. The results were provided to the applicant.

18. As for the period July 2010 to June 2016 Inspector Carlon says there were 37,124 files held on the old database. (paragraph 25). He states that to meet the applicant’s request for access would require at least 618.35 hours of work (or 18×35 hour weeks) to examine each hardcopy of those files to see if it might potentially involve an incorrect application of section 57(2) of the GIPA Act. This is allowing a very conservative estimate of one minute per file (paragraph 26). I would say this is an extremely conservative estimate of the time involved.

19. On top of this first-pass filtering, the agency would need to investigate those files which appear to meet the criteria, and prepare and review a written report (paragraphs 27 and 28).

20. The applicant does not challenge the respondent’s evidence.

The authorities

21. Section 60(1) of the GIPA Act relevantly provides as follows:

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,

22. In Commissioner of Police v Danis [2017] NSWCATAP 7 at [43] the Appeal Panel said:

"Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (bl)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(l)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (bl), and, arguably (d))."

23. In Cianfrano v Premier's Department [2006] NSWADT 137 ("Cianfrano) the President outlined 9 factors to be taken into account in assessing large requests under the Freedom of Information Act1989, and deciding whether a request constituted an unreasonable and substantial diversion of an agency's resources. He stated at [62]-[63]:

"As I see it, the factors that are relevant to an assessment of the kind required by this case, include:

(a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in [Re Borthwick and University of Melbourne (1985) 1 VAR 33 (Re Borthwick)] at 35)

(b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick)

(c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications

(d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost

(e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application

(f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)

(g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns

(h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made

(i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.

This is, of course, not intended, in any way, to be an exhaustive list of possible considerations."

24. In Colefax v Department of Education and Communities No 2 [2013] NSWADT 130), the Tribunal confirmed that the ‘Cianfrano factors’ remained relevant to the assessment to be performed under section 60(l)(a) of the GIPA Act.

25. Addressing the ‘Cianfrano factors’ it is my view that this is a global or general GIPA Act request and it seems to me that as a practical matter it would be quite difficult to locate all the documents sought within a reasonable time with the exercise of reasonable effort in the light of the evidence.

26. The applicant has not demonstrated the importance of these documents to him which must impact on how much time and effort is reasonable in the circumstances.

27. From the evidence the request appears to be rather unmanageable in the light of the work that the relevant unit of the agency is doing, not only in relation to GIPA Act applications but subpoenas working with children checks and other types of requests for information.

28. The number of documents potentially affected is extraordinarily large and the amount of time and salary cost seemed to far outweigh the benefits to be derived from access.

29. It appears to me that the agency has done its best within reason to meet the access request, but it also seems that the applicant has been to some extent cooperative in narrowing his request.

30. The size of the task in the light of the time limits set by the GIPA Act and resources available seem impossibly tight.

31. The evidence shows that the number of hours work required will far exceed 40 hours.

32. Another factor I note is the amount of work which is likely to be required just to provide the applicant with what is a statistic.

33. I also note that meeting the applicant’s request would require the agency to create new information or a new record and this is not something which the agency is obliged to do (section 75(2)(c) GIPA Act).

34. Having regard to all of these factors and to the evidence, I agree that the agency’s decision to refuse to deal with the part of the applicant’s application in contention would require an unreasonable and substantial diversion of the agency’s resources.

Orders

1. The agency’s decision is affirmed.

2. A hearing is dispensed with.

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

Registrar

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: 31 July 2019