Mills v University of New England

[2025] NSWCATAD 123

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Mills v University of New England [2025] NSWCATAD 123

Hearing dates:

1 May 2025

Date of orders:

3 June 2025

Decision date:

03 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Block, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Government Information

– discretion to refuse to deal with application – how discretion should be applied – systemic factors – weight applied to factors

Legislation Cited:

Administrative Decisions Review Act 1997

Government Information (Public Access) Act 2009

Cases Cited:

Cianfrano v Director General, Premier’s Department [2006] NSWADT 137

Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130

Commissioner of Police v Danis [2017] NSWCATAP 7

Else v Ministry of Health [2021] NSW CATAD 381

Ruyters v Commissioner of Police [2020] NSWCATAD 223

Wojciechowska v Commissioner of Police, NSW Police Force [2024] NSWCATAD 46

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Gregory Mills (Applicant)
University of New England (Respondent)
NSW Information Privacy Commissioner (Intervenor)

Representation:

Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/00477472

Publication restriction:

Nil

REASONS FOR DECISION

1. Mr Gregory Mills (the Applicant) seeks access to information held by the University of New England (the Respondent) in relation to a possible claim for breach of procedural fairness in the course of his previous employment relationship with the Respondent.

2. This is an application for administrative review of a decision of the Respondent to refuse to deal with an application to access information in reliance on s 60(1)(a) of the Government Information (Public Access) Act 2009 (GIPA Act), on the grounds that to do so would require an unreasonable and substantial diversion of the Respondent’s resources.

Jurisdiction

3. The Tribunal has jurisdiction to review an administratively reviewable decision pursuant to s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). The decision to refuse to deal with an access application is a reviewable decision by an agency in accordance with s 80(c) of the GIPA Act. The Tribunal has jurisdiction to determine this application pursuant to s 100 of the GIPA Act.

Material before the Tribunal

4. The material before the Tribunal included submissions and correspondence by both parties.

5. The Applicant submitted a bundle of documents which included a detailed background summary, a copy of his communications with the Fair Work Ombudsman and Fair Work Commission, a transcript of the Federal Court of Australia proceedings between the parties in November 2023, and selected correspondence between the parties.

6. The Respondent submitted a bundle of documents which included their submissions, a copy of the Applicant’s access application, correspondence between the parties, the Respondent’s Decision, the IPC decision, information provided to the IPC, an Affidavit sworn 3 March 2025 by the witness, Ms Teisa Moce, and an additional letter dated 14 April 2025 in reply to the Applicant’s submissions.

7. Both parties made oral submissions at the hearing, and the witness, Ms Teisa Moce, gave evidence and was cross-examined by the Applicant.

8. The IPC did not put any material before the Tribunal, nor appear at the hearing.

Issue for determination

9. The issue in these proceedings is whether dealing with the access application would require an unreasonable and substantial diversion of the Respondent’s resources. In doing do, the Tribunal must identify and take into account any matters falling within the scope of s 60(3A) of the GIPA Act and then determine if, on balance, they outweigh the matters falling within s 60(3B) of that Act.

Legislative Framework

10. Section 105 of the GIPA Act places the onus on the Respondent to satisfy the Tribunal that its Decision was justified. The function of the Tribunal is to hear the matter de novo and to reach a view itself, unrestrained by the view taken by the primary decision-maker.

11. Section 3(1) of the GIPA Act provides for the proactive release of government information by agencies, and gives members of the public an enforceable right to access government information, subject to certain exceptions. There is a presumption in favour of disclosure as per s 5 of the GIPA Act, and it, generally, cannot be made subject to conditions (s 73 of the GIPA Act).

12. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information, and s 9 of the GIPA Act provides applicants with a legally enforceable right to access such information, unless there is an overriding public interest against disclosure per s 13 of the GIPA Act.

13. Section 58 of the GIPA Act provides a range of options for agencies when determining access applications. These include (but are not limited to) deciding to provide access, deciding to refuse to provide access because of an overriding public interest against disclosure, or refusing to deal with the application.

14. Section 60 of the GIPA Act sets out the circumstances in which an agency can refuse to deal with an application for access and provides:

(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,

…

(3A)  In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency may, without limitation, take into account the following considerations—

(a)  the estimated volume of information involved in the request,

(b)  the agency’s size and resources,

(c)  the decision period under section 57.

(3B)  Any consideration under subsection (3A) must, on balance, outweigh—

(a)  the general public interest in favour of the disclosure of government information, and

(b)  the demonstrable importance of the information to the applicant, including whether the information—

(i)  is personal information that relates to the applicant, or

(ii)  could assist the applicant in exercising any rights under any Act or law.

(4)  Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency’s resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

Background

15. On 12 April 2024, the Applicant, lodged an access application under the GIPA Act seeking access to information held by the Respondent.

16. The information sought by the Applicant in that application was:

1. “All records, documents, emails, correspondence, meeting minutes, diary notes, workplace health & safety records (including Skytrust or equivalent), workplace health and safety investigations records and reports and recordings in any form which relates in any way to the banning notice- University of New England (“the University”) issued on 13 February 2024. This should include, but not limited to:

1. Records/information of myself speaking with residential students;

2. Records/information of observation of my vehicles being driven on campus;

3. Records/information of any discussions I had with staff;

4. Workplace health and safety and other policies or procedures relied upon in the determination leading to the issuing of the banning notice;

5. Records/information recorded within the UNE workplace health and safety management systems;

6. Any correspondence and information exchange with UNE Security before and after the issue of the ban notice;

7. Any Security UNE reports relating to myself;

8. Any notices/correspondence/record of conversation to staff, contractors or other third parties regarding the Banning Notice; and

2. All records, emails, documents, correspondence, diary notes, meeting minutes, reports and recordings in any form which refers to me by name (in any form) or in which I am identifiable, created since 21 December 2023; and

3. All records, emails, documents, correspondence, diary notes, meeting minutes, reports and recordings in any form that refer to ‘robbfortnightly’.”

17. On 8 May 2024, the Respondent provided an Intention to Refuse to Deal notification to the Applicant which stated that the current scope of his access application would involve a substantial diversion of resources, and invited him to amend the scope of his application, pursuant to s 60(4) of the GIPA Act.

18. In response to this notice, the Applicant replied to the Respondent on the 12 May 2024 narrowing his request to exclude the portion of the request outlined at [16(b)] and [16(c)] above.

19. On 23 May 2024, the Respondent advised the Applicant that they refused to deal with his application pursuant to s 60(1)(a) of the GIPA Act on the basis that dealing with his application would require an unreasonable and substantial diversion of the Respondent’s resources (the Decision).

20. In July 2024, the Applicant applied for an external review by the IPC who delivered her report on 29 November 2024 concluding that the Respondent’s decision was justified.

21. On 23 December 2024, the Applicant lodged an application for administrative review of the Decision with the Tribunal.

Applicant’s case

22. The Applicant submits the correct and preferable decision was for the Respondent to deal with his application for access. His grounds for this review include the following:

1. That he was entitled to be provided with that information otherwise pursuant to the principles of procedural fairness;

2. That the information may provide evidence of criminal conduct on behalf of the Respondent and therefore falls within an overriding public interest exception;

3. That the refusal to grant his access application has caused him pain and suffering;

4. That the Respondent has the financial resources to fund an external service provider to undertake the work involved in meeting his access request; and

5. That the Respondent has greatly inflated or otherwise misrepresented the number of documents and hours generated by his access request. The Applicant submitted that the Respondent was claiming to hold so many documents, that by his calculations, thousands of documents must have been generated in a mere 75 days.

23. The Applicant alternately submitted that the volume of documents identified as relevant to the access application were inflated due to using generalised search terms like “Greg” rather than more targeted search terms like “Gregory Mills”.

24. The Applicant stated that had he known the number of documents was actually closer to 5,000 pages rather than the original approximation given, he would have approached his request differently. Given that the original estimate, obtained from a sampling, provided to the Applicant was around 1,200 pages, and he was given fair opportunity to narrow the scope of his application, the Applicant was invited to make submissions as to how he would have otherwise approached the application, armed with the knowledge the true figure was actually far greater. He did not avail himself of this opportunity at the hearing.

25. At the hearing, the Applicant submitted that the public interest disclosure imperative significantly outweighed the diversion of resources necessitated by granting his access application. This submission was based on his belief that senior Respondent staff were using the GIPA Act to hide their criminal activity. The specifics of such criminal activity were not articulated, but relate to allegations that the Applicant was subject to a denial of procedural fairness in relation to his previous interactions with the Respondent regarding the circumstances of his fair work claim, and subsequent banning notice.

26. The Applicant submitted that his workplace rights had been infringed without a fair hearing, and therefore the relevant information should have been released to him as a matter of procedural fairness rather than requiring a GIPA access application to be made.

27. The Applicant submitted that the documents sought “may also reveal UNE staff may have engaged in corrupt conduct under section 8 of the ICAC Act 1988 (NSW).” He submitted that his two Federal Court hearings determined that the Respondent had acted with bias and prejudice and a lack of procedural fairness. Accordingly, he submitted that the documents he sought would exhibit more of the same, and that the Respondent was ‘hiding behind’ s 60 of the GIPA Act.

28. The Applicant submitted that he had previously made protected disclosures pursuant to whistleblower legislation, and considered that his subsequent treatment at the hands of the Respondent, therefore fell within the greater public interest need to ensure accountability and integrity within the organisation.

29. The Applicant submitted that the Respondent should be considered a large agency with much larger resources than they claimed. The basis for this submission was largely focussed on his assertion that the Respondent had engaged a King’s Counsel to act on their behalf in the previous Federal Court proceedings between the parties, and therefore, if they could fund a King’s Counsel, they could have funded some external resources to process his access application.

Respondent’s case

30. The Respondent submitted that they made the correct and preferable decision in the circumstances, and that their Decision should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

1. The number and volume of documents involved in the access request was enormous, and well in excess of what could be considered reasonable.

2. The number of ‘person hours’ required to meet the Applicant’s request amounted ultimately to 9-10 weeks of a full time employee, noting that the Respondent has only one full time employee handling all such access requests, among other duties.

3. The hours involved in processing the Applicant’s request were such that they would be unable to meet their obligations pursuant to s 57(1) of the GIPA Act to process the application within the requisite 20 days, or any permissible extensions to that timeframe.

4. The request was properly considered in accordance with the applicable principles of the GIPA Act, and opportunity to narrow the scope of the application was properly afforded to the Applicant.

31. The Respondent submitted that they complied with the full suite of their obligations pursuant to the GIPA Act, and that the Applicant’s application required a clearly and overwhelmingly unreasonable and substantial diversion of resources. The Respondent submitted that at every juncture during the process where they calculated the number of documents and person hours required to process the request, this figure was enormous and patently untenable.

32. The Respondent submitted that they should not be considered a large agency, and in fact have limited resources available for the processing of GIPA applications. At the time of the Applicant’s application, access applications were processed by 3 paralegal employees of the Respondent, such duties comprising only a small percentage of their role.

33. The Respondent called Ms Moce, the Respondent’s GIPA Officer to give oral evidence under oath, who spoke to the Respondent’s limited resources and the process for assessing access applications.

34. Ms Moce gave evidence that she is the sole GIPA Officer, and commenced employment with the Respondent in August 2024. Ms Moce stated that her role comprises around 40% GIPA matters and 60% privacy matters, and that she has very limited support available from three paralegal officers who otherwise have non-related full time roles.

35. Ms Moce stated that the Respondent receives approximately 2-6 applications per month, which generally take around 9 hours to process per application.

36. Ms Moce was unable to answer certain questions about the original process undertaken, on the basis that she was not the original decision maker, and not in the employ of the Respondent at the time of most of the relevant events.

37. The Applicant was concerned that Ms Moce was ill-equipped to answer some of the key questions to which he sought answers. The Respondent submitted that she was the appropriate witness due to her role as GIPA Officer.

38. Ms Moce stated that she had undertaken a full review of the Decision in preparation for these proceedings, and that the search and retrieval exercise affected 6 business units across the Respondent. Ms Moce gave evidence that the initial response provided by those business units advised that over 2,000 relevant documents or records were held.

39. Ms Moce stated that her conservative estimate at an average of 5 pages per document, is that there was over 5,700 pages of material captured in the access request. These documents would then need to be subject to review for legal professional privilege and other public interest factors against disclosure.

40. Ms Moce gave evidence that the estimated time to process the Applicant’s access application was somewhere around 374 hours of the Respondent’s time, and that the initial estimate which drove the refusal, and the Respondent’s Decision, was conservative.

41. The Tribunal accepts Ms Moce’s evidence, which was considered and based on her expertise and experience.

Consideration

Section 60(1)(a) matters

42. The provision relied on by the Respondent, in making their Decision, was their right to refuse to deal with an access application pursuant to section 60(1)(a) of the GIPA Act, where dealing with the application would require an unreasonable and substantial diversion of resources.

43. The Tribunal must identify and take into account any matters falling within the scope of s 60(3A) of the GIPA Act and then determine if, on balance, they outweigh the matters falling within s 60(3B) of the GIPA Act. As per Else v Ministry of Health [2021] NSW CATAD 381 at [54] “It is only where matters in s 60(3A) outweigh those in s60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency’s resources.”

44. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] the Tribunal outlined the factors to be considered in determining such matters, to be:

1. 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 at 35)

2. 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)

3. 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

4. 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

5. 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

6. 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)

7. 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

1. 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

2. 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.

45. These matters were confirmed by the Tribunal to be relevant to an assessment under s 60(1)(a) of the GIPA Act in Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130.

Section 60(3A) matters

46. The Appeal Panel in Commissioner ofPolice v Danis [2017] NSWCATAP 7 noted at [41] that:

“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 deployment of agency resources.”

47. The only evidence the Applicant has adduced in respect of his assertion that the Respondent can afford to meet the cost of granting his access application, is his vehement belief that it is so. The Applicant noted that the Respondent engaged the services of a King’s Counsel in their Federal Court proceedings, and deduced from this, that the Respondent has unlimited funds.

48. Conversely, the Respondent has provided evidence that they have limited resources for the processing of GIPA requests, which amount to one full time GIPA officer, with some very limited additional support from three paralegal staff. Further, the Respondent has established that the resources they attribute to such applications are adequate given that they are able to grant almost every application they receive. It is otherwise beyond the purview of the Applicant and this Tribunal to query or challenge the efficacy of the allocation of funding and resources within the Respondent.

49. The Applicant has submitted that the Respondent may not have properly guided the search terms sufficiently, to restrict the number of documents identified as relevant. However, the Respondent has submitted that they do not, and did not in this matter, advise each division how to conduct their searches. The Respondent’s witness, Ms Moce, confirmed under oath, that the searches were accurate, they did indeed produce over 5,000 pages, and that she had undertaken further review of the basis for the Decision, and confirmed the search results subsequently.

50. The 40 hours rule referenced in Cianfrano does not automatically establish a 40 hour rule to be applied in all such matters. What constitutes a reasonable number of hours will need to be determined by the size of the agency and the resources they have available, in the particular circumstances of each matter.

51. The Respondent has submitted evidence that their usual GIPA access applications require approximately 9 hours of the GIPA Officer’s time to process. As per Ms Moce’s evidence, this reflects the majority of applications they receive and grant. The Respondent has submitted that the likely processing time required to grant the Applicant’s application would entail a minimum of 374 hours, equating to 9-10 full time weeks solely dedicated to the processing of the request.

52. Given the available resources of the Respondent for dealing with GIPA access applications, it appears that applying a 40 hour rule would actually fall on the generous side for applicants. Whether the Respondent draws the line around their usual processing request time of 9 hours, or as much as 40 hours, it is clear that 374 hours is well in excess of their stated capacity.

53. As regards the Applicant’s submissions that the number of documents has been inflated, it is clear that the parties have interacted in a number of fora and over a number of issues during the relevant time period. Accordingly, it is logical that such interactions, including two Federal Court proceedings and Fair Work proceedings, would have generated a substantial amount of relevant paperwork.

54. The Respondent has taken reasonable steps to assess the volume of material involved, and the time needed to process the access application. The estimation has been subject to a full review, with the conclusion that the estimate provided was accurate, if possibly an understatement.

55. I am satisfied, on the material before the Tribunal, the investigations into this matter conducted by the Respondent were reasonable and the time estimates calculated by the Respondent, were carefully considered and are justified.

Section 60(3B) matters

Public interest

56. The Applicant acknowledged that his original access application had not been made on the basis of a public interest imperative. However, the Applicant’s submissions regarding the public interest imperatives have been given due consideration in this determination.

57. In Ruyters v Commissioner of Police [2020] NSWCATAD 223, the term “general public interest” in section 60(3B) was accorded the same meaning as its use in section 12(1) of the GIPA Act, which is acknowledging the inherent public interest in the disclosure of government information, without extending to the considerations included in the notes thereto.

58. This was supported in Wojciechowska v Commissioner of Police, NSW Police Force [2024] NSWCATAD 46 which confirmed the view that the section 60(3B)(a) consideration “is a reference to the general public interest in favour of the disclosure of government information contained in s 12 of the GIPA Act” and “does not involve any assessment of the public interest in the disclosure of the particular government information that falls within the scope of the access request.”

59. The information sought by the Applicant is personal in nature, and he has not offered any compelling argument that there is any public interest in the disclosure of this particular information accordingly.

Importance of the information to the applicant

60. Section 60(3B)(b) of the Act provides that the information sought must be of demonstrable importance to the Applicant. The Applicant has sought the information in the belief that such information will evidence breaches of procedural fairness in the Respondent’s treatment of him, and/or expose the Respondent’s improper or criminal conduct.

61. The Applicant has not adduced any specific or substantial evidence indicating any misconduct or corruption on the part of officers of the Respondent. As per Ruyters at [54], “it is necessary for an applicant to put forward some material to indicate the importance of the information sought rather than engaging in mere speculation or conjecture”.

62. On the material before the Tribunal I am not satisfied the Applicant has sufficiently demonstrated any basis on which the information would assist him in exercising any particular rights under any Act or law.

Balancing

63. Considered together, I am satisfied that the s 60(3A) matters identified by the Respondent, predominantly the significant number of hours involved to deal adequately with the application for access, outweigh the matters identified by the Applicant as s 60(3B) matters.

64. I am therefore satisfied that dealing with the application would require an unreasonable and substantial diversion of the Respondent’s resources and that the correct and preferable decision is to refuse to deal with the application pursuant to section 60(1)(a) of the GIPA Act.

Orders

1. The decision under review is 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

03 June 2025 - Order number deleted on Cover Page.

Decision last updated: 03 June 2025