Muanes v Western Sydney Local Health District

[2025] NSWCATAD 175

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Muanes v Western Sydney Local Health District [2025] NSWCATAD 175

Hearing dates:

27 June 2025

Date of orders:

22 July 2025

Decision date:

22 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

(1) The administratively reviewable decision of the Respondent of 3 March 2025 is set aside.

(2) The administratively reviewable decision of the Respondent is affirmed, other than as regards document 78.

(3) The administratively reviewable decision of the Respondent as regards document 78 is remitted for reconsideration by the Respondent in accordance with paragraph [58] of these reasons.

Catchwords:

ADMINISTRATIVE LAW - administrative review - Government Information - information not held - reasonableness of searches - remission of administratively reviewable decision

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211

CLT v Secretary, Department of Education [2022] NSWCATAD 34

Klaric v Commissioner of Police [2020] NSWCATAP 153

Robinson v Commissioner of Police [2014] NSWCATAP 73

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAP 257

Category:

Principal judgment

Parties:

Yasser Muanes (Applicant)
Western Sydney Local Health District (Respondent)

Representation:

Applicant (self-represented)

Crown Solicitor (Respondent)

File Number(s):

2024/00477500

Publication restriction:

None

REASONS FOR DECISION

1. Mr Yasser Muanes is the applicant in this matter (“Applicant”). He is applying for review of a decision by the respondent, Western Sydney Local Health District (“Respondent”) that certain information sought by the Applicant did not exist. The specific question is whether the searches undertaken by the Respondent to find that information were reasonable.

Background

2. The Applicant made an access application dated 30 September 2024. He sought copies of certain medical records and information concerning himself. These records included records at Westmead Centre for Oral Health, including general dental practice, dental emergency and dental restorative science.

3. He also sought:

1. records and reports provided by NSW ambulance to Westmead Hospital;

2. all available voice recordings, transcripts or notes of phone calls from his mobile number to Westmead Hospital and certain calls received from Westmead Hospital;

3. policies and rules that dentists and management followed in deciding treatment types to offer patients;

4. policies for handling patients’ complaints at Westmead Hospital.

4. On 6 November 2024, the Respondent gave its notice of decision with respect to the Applicant’s access application. Access was provided to some of the information requested. The Respondent decided that some of the information sought was not held by it and other information was already available to the Applicant. There was a refusal to provide certain information sought.

5. On 6 December 2024, the Tribunal received the Applicant’s application for administrative review of the decision. It made orders on 17 February 2025 which, among other things, returned the decision to the Respondent for re-consideration.

6. On 3 March 2025, the Respondent gave notice of its decision following reconsideration (“remitted decision”). The Respondent decided to provide access to 78 documents if full or part. It refused to provide access to two documents identified by numbers 79 and 80 because, in its view, there was an overriding public interest against disclosure of information in these documents. The Respondent also decided that it did not hold any further information, other than that which it had already identified as responsive to the Applicant’s access application.

7. On 14 April 2025, the Respondent decided to release four additional documents to the Applicant, including documents 79 and 80.

8. What remains in dispute is the Respondent’s decision that it did not hold any further information, other than that which it had already identified and dealt with pursuant to the Applicant’s access application and the remitted decision.

Powers of Civil and Administrative Tribunal

9. The powers of the Civil and Administrative Tribunal (“Tribunal”) to review a decision arise where a person is aggrieved by a “reviewable decision” of an agency. Such a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) of that decision (s 100 of the Government Information (Public Access) Act 2009 (“GIPA Act”)).

10. What are “reviewable decisions” of an “agency” is set out in s 80 of the GIPA Act. They include a decision that government information is not held by the agency (s 80(e) of the GIPA Act). There was no dispute that the Respondent was an “agency”.

11. An agency has made a “reviewable decision” within s 80 of the GIPA Act, the agency being the Respondent and the “reviewable decision” being a decision that government information is not held by the agency.

12. The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.

13. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid “access application” seeking “government information”. It is not in issue that the Applicant made an “access application” under Part 4 of the GIPA Act and that the information requested was “government information”. (See definition of these terms in s 4 of the GIPA Act.)

Hearing

14. The Applicant was self-represented at the hearing. The Respondent was represented by the Crown Solicitor.

15. The Applicant relied on evidence including two affidavits of Dhana Profilio sworn on 14 April 2025 and 3 June 2025 respectively. She was present at the hearing and gave oral evidence.

16. Ms Profilio had, since 2013, been the Privacy and Information Compliance Manager Corporate Records Unit of the Western Sydney Local Health District. She gave evidence as to the searches carried out in response to the Applicant’s access application.

Applicant’s right to information

17. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing “a system of responsible and representative democratic Government that is open, accountable, fair and effective” (s 3(1)(b) of the GIPA Act).

18. A person who makes an access application for government information has a “legally enforceable right to be provided with access to the information” (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.

19. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government Information (s 12(1) of the GIPA Act). However, the right to access will not be available where “there is an overriding public interest against disclosure of the information” (s 9 of the GIPA Act).

20. There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act). However, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act).

21. The burden of establishing that a reviewable decision made under the GIPA Act is justified lies on the agency (GIPA Act, (s 105(1)).

22. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1):

“(a) deciding to provide access to the information, or

(b)   deciding that the information is not held by the agency…”

23. The GIPA Act requires an agency to undertake 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. That obligation is set out as follows in s 53 of the GIPA Act.

“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”.

Consideration

24. To the extent that information has been found by the Respondent in response to the Applicant’s access application, no matters remain in dispute as to whether access to that information must be provided to the Applicant or not, under the provisions of the GIPA Act. The Applicant initially obtained access to 78 documents and subsequently to another four documents. The evidence of the Respondent was that it had not found any other documents in response to the Applicant’s access application.

25. The issue remaining in dispute was whether or not the searches the Respondent had carried out to search for information sought by the Applicant were “reasonable searches” as required by s 53.

What are “reasonable searches under s 53?

26. The Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the effect of s 53 and specifically what powers the Tribunal had where a question arose as to whether reasonable searches had been conducted. It said, at [33]:

“The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search”.

27. While the reasonableness of searches is not, in and of itself, reviewable, it is, however, a relevant consideration as to the correctness of a determination that information is not held. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173, at [41], the Appeal Panel described the finding in Klaric in the following terms:

“… whether the agency has complied with the obligation imposed by s 53 is plainly a relevant factor in determining whether an ‘information is not held’ decision is the ‘correct and preferable decision’”.

28. In Wojciechowska, the Appeal Panel also said that an access applicant is not required to establish that there are reasonable grounds to believe that the requested information exists and is held by an agency, before that agency must undertake searches. Instead, it falls to the agency to assess whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by the agency. It went on to describe how the question of whether searches are “reasonable” should be addressed. It said, at [43]):

“In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “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”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act”.

29. The Appeal Panel then summarised at [44] the task for the Tribunal in reviewing a decision that information is not held by an agency:

“1. identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s. 53(1)–(5);

2.   determine whether the agency has proved any relevant factual issues on the balance of probabilities;

3.   consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

4.   applying those findings, decide what the correct or preferable decision is;

5. affirm, set aside or vary the agency’s decision: s. 63(3) of the Administrative Decisions Review Act”.

30. The Tribunal in CLT v Secretary, Department of Education [2022] NSWCATAD 34, at [40], described the standard required for searches in the following terms:

“ … searches must therefore be “logical”, “sensible”, “appropriate”, and “fair” but are not required to be “extreme” or “excessive” (to illustrate using synonyms and antonyms). The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency’s obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative or belligerent observer”.

Were the Respondent’s searches “reasonable”?

31. There is no necessary requirement to look for information once held but no longer on the primary systems. In Robinson v Commissioner of Police [2014] NSWCATAP 73, at [26] – [27], the Appeal Panel made the following observations about s 53 of the GIPA Act in respect of information held in electronic form:

“It will be seen that s 53 commences by confining limiting the agency's obligation to respond to a request to information held by it at the time of receipt of the request (sub-s (1)).This protection against having to look for information once held but no longer in the primary systems of the agency is buttressed by sub-s (4), which makes it unnecessary for the agency to search electronic back-up systems (subject to narrow exceptions).

Importantly, sub-s (2) states that the agency 'must undertake reasonable searches as may be necessary' to find the requested information, and must do so 'using the most efficient means reasonably available to the agency'. The latter obligation is amplified by the obligation imposed by sub-s (3). As already noted, sub-s (4) protects the agency from having to make searches of electronic back up systems. Sub-s (5) contains the important qualification that searches that involve a 'substantial and unreasonable diversion of resources' need not be undertaken”.

32. The further observations of the Appeal Panel in Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAP 257 as to the adequacy of searches of electronic databases are also relevant:

“I accept…. , that a relevant factor in determining whether the NSWPF satisfied .. [its obligations under s 53] …. is whether, at the time …[the person carrying out searches] … searched for the requested information, he had sufficient knowledge of the NSWPF’s databases and how to search those databases together with the skill to be able to apply that knowledge. I accept…. , that he is familiar with the NSWPF’s databases and has received some training in how to search them. Nonetheless, he could not be described as a forensic IT expert. A person with such expertise is likely to have been able to conduct a more rigorous and comprehensive search. It does not follow that the obligation imposed by s 53 is not satisfied. It requires “reasonable searches” to be undertaken using “any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically” (s 53(3)). Notably, an agency is not required to undertake any search that would require a “substantial and unreasonable diversion of the agency’s resources”: s 53(5). There may be cases where a person’s lack of knowledge of an agency’s databases and/or lack of knowledge and/or skill in retrieving information, tends to indicate that the search undertaken could not be characterised as reasonable…..

While s 105 requires the NSWPF to establish that the “information not held” decision is justified, it does not require the NSWPF to disprove that it holds the requested information. Having reviewed the available material and the submissions made by the parties, I am satisfied on balance that the NSWPF has discharged the obligation imposed by s 53”.

33. Ms Profilio gave evidence on behalf of the Respondent. She has been the Privacy and Information Compliance Manager Corporate Records Unit of the Western Sydney Local Health District since 2013. In that role, she is responsible for achieving organisational compliance with privacy and access to government information law. Her evidence was that the Corporate Records Unit is responsible, among other things, for receiving and processing applications for information under the GIPA Act.

34. Ms Profilio’s evidence described the data storage system of the Applicant and the searches carried out in response to the Applicant’s access application. Ms Profilio said that she herself spent 20 hours processing the Applicant’s access application, in addition to 23 hours spent by other personnel of the Respondent.

35. I am satisfied, on the basis of her description of her role, experience and work she did in response to the Applicant’s access application, that Ms Profilio has the necessary knowledge and experience to describe the data storage system of the Respondent and searches carried out in response to the Applicant’s access application.

36. Ms Profilio described the information management system of the Respondent as including physical paper records, electronic medical records and various databases holding these records. She said that three rounds of searches were conducted in response to the Applicant’s access application. She describes each of these searches in her Affidavit of 14 April 2025. Searches were carried out on 1 October 2024. Further searches were carried out on 4 April 2025, 8 April 2025 and 10-11 April 2025. The further searches after 1 October 2024 were carried out following the remitted decision of 3 March 2025. Further information was provided to the Applicant following these further searches.

37. The inputs used for searches conducted of the Respondent’s data bases included the Applicant’s name and/or his Medical Record Number (“MRN”). The evidence was that an MRN is a unique numerical identifier assigned to patients. Keyword searches were also carried out. There was evidence of another MRN for the Applicant used by a different health facility. The Respondent’s evidence was that only the MRN for Westmead Hospital had been used in carrying out searches.

33. Ms Profilio said that the searches conducted were of records held for Westmead Hospital. No searches were conducted of records held for other health facilities in the Western Sydney Local Health District. These search parameters accord with the scope of the Applicant’s access application, applying as they did to information held for Westmead Hospital and not for other health facilities.

34. Some searches were not carried out. Telecommunications information was not searched because, Westmead Hospital, on the evidence, did not hold recordings of telephone calls.

35. Ms Profilio says that she was not aware of any additional searches that could be performed or information management systems that could be searched in response to the Applicant’s access application.

36. In these circumstances, the Respondent's submission was that it had complied with its obligations under s 53 of the GIPA Act to conduct reasonable searches for information using the most efficient means reasonably available to it.

37. The Applicant said that the searches were not adequate. He claimed that there were missing records not found in the searches.

38. He said, firstly, that dental records mentioned at least seven requests for extraction. However, there were only two extraction request forms made available. Ms Profilio in response said that all extraction requests for the Applicant that were responsive to his access application would have been held in his paper dental record. She said that all of the Applicant’s paper dental records that were found were released to the Applicant as document 78 identified in the remitted decision.

39. The Applicant then referred to an investigation completed and response provided on 20 November 2023. He said he needed full details of the investigation. The Respondent said that a record of an investigation (identified as document 6) had been provided. She says no further information is held in relation to the investigation.

40. There were questions raised by the Applicant as to certain other matters he says were not disclosed in the documents provided to him. This included details of discussions he said had occurred about him and names of certain persons involved in making records. He sought answers to those questions. He asked for some matters to be documented and records created. This included records of a verbal complaint made by a dentist.

41. The access application can only allow for the provision of information held by the Respondent. To the extent that the Applicant’s questions call for the provision of information that is not in the records held by the Respondent, these are matters outside the scope of an access application under the GIPA Act. Where the information is not recorded, the GIPA Act does not require an agency to create records of that information. The Appeal Panel in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 said, at [26]:

“… a person’s knowledge, (information held in people’s heads) is not information in a record. We agree with the observation of the Appeal Panel of the Administrative Decisions Tribunal that the GIPA Act, “is not a vehicle for seeking answers to questions a person might have in regard to . . . action taken by a government agency, or seeking an explanation by an agency as to why particular action was taken”: Davison v NSW Department of Education and Training [2013] NSWADT 25, [3] and [24]”.

47. The Applicant sought certain information held for health facilities other than Westmead Hospital. They included information held by the NSW ambulance service. The Respondent’s evidence was that information held for health facilities other than itself, was not information kept for Westmead Hospital.

48. I am satisfied that the evidence provided by Ms Profilio establishes on the balance of probabilities that reasonable searches at the required standard have been conducted, including for the matters raised at [43] and [44] above, subject to the one matter set out at [51] below. I come to this conclusion on the basis of the description of the data bases searched, steps taken to carry out searches of information held on the Respondent’s data bases including search parameters, the time spent in carrying out the searches and the other matters going to the scope of the searches as set out in Ms Profilio’s evidence at [37] – [41] above. The searches were carried out using the Applicant’s name and/or the MRN given to him for Westmead Hospital. The searches covered all relevant databases for Westmead Hospital described in evidence and the search parameters used appear sufficient, whether the Applicant’s name or MRN. Ms Profilio says that she was not aware of any additional searches that could be performed or information management systems that could be searched. I accept this evidence.

49. What is required is that searches must be reasonable and do not have to be “extreme” or ”excessive”. The searches should not involve an unreasonable and substantial diversion of the agency’s resources. The agency’s searches must be conducted using the most efficient means reasonably available to the agency. Additionally, they must use any resources reasonably available to the agency. I am satisfied that the searches carried out meet this description, subject to the one matter set out below.

50. To the extent that the Applicant sought information not held for Westmead Hospital, they are outside the scope of his access application.

51. There is an outstanding matter concerning certain dental records. The matter involves dental records that were released to the Applicant under the Health Records and Information Privacy Act 2002 (NSW) (“HRIP Act”). The document released was a combination of two documents. The evidence included a screen shot of a scanned copy of a document that appeared to be comprised of the two documents. They overlapped and were scanned over each other. These two documents were an A4 document and A5 document dated 5 July 2007 and 1 August 2006 respectively. This “combined” document was released to the Applicant on 24 February 2024 under the HRIP Act.

52. The A4 document was released to the Applicant in response to his access application under the GIPA Act the subject of these proceedings, as numbered document 78. However, the A5 document was not released to the Applicant.

53. The Respondent said that the two documents were part of the paper dental records appertaining to the Applicant. Ms Profilio said that she had reviewed the paper dental record and had been unable to find the A5 document. She also said that enquiries “are ongoing as to the location of the A5 document”.

54. Ms Profilio gave oral evidence that dental records are stored in hard copy form in a safe room. She said that only staff had access to the records and access would be sought by email. She said that the records to which access was requested would then be located by staff and provided to the person seeking access. No time limit existed for return of records.

55. There was no reliable evidence as to why the A5 document was missing. There was no record of the document being taken or of its return. Ms Profilio indicated the possibility of the document having been caught in a photocopier. A number of other explanations may exist as to why the document is missing, including that the record had been removed and was awaiting return, misplacement of the document or loss. It is, however, not for the Tribunal to speculate as to the reason the document is missing, in circumstances where there is no reliable evidence as to why it is missing.

56. It is for the Respondent to assess whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by the agency. The Respondent has made such an assessment. It has produced evidence that the A5 document had been held by it and that searches are ongoing.

57. Whether missing information was held in paper form or electronic form, the mere absence of a document that was once known to have been held by an agency does not, of itself, mean that searches have failed the requirements of s 53. However, if the Respondent, having made the relevant assessment, has not given proper consideration to why the document is missing and is unable to explain its absence, and additionally on-going searches are being carried out, I do not think it can be said that reasonable searches within the meaning of s 53 for that document have been completed. The agency should at least complete the task that it says is still ongoing.

58. The Respondent bears the onus of proving in this matter that its search efforts were reasonable. I am unable to satisfy myself that it has done so in respect of the missing A5 document, for the reasons set out above. Otherwise, I am satisfied that the searches carried out, are on the balance of probabilities, “reasonable”.

Conclusions

59. Accordingly, I set aside the administratively reviewable decision made by the Respondent on 3 March 2025 and remit the matter for reconsideration by the Respondent, having regard to the matters at [58] above.

Orders

1. The administratively reviewable decision of the Respondent of 3 March 2025 is set aside.

2. The administratively reviewable decision of the Respondent is affirmed, other than as regards document 78.

3. The administratively reviewable decision of the Respondent as regards document 78 is remitted for reconsideration by the Respondent in accordance with paragraph [58] of these reasons.

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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: 22 July 2025