Pittwater Council v Walker

[2015] NSWCATAD 34

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Pittwater Council v Walker [2015] NSWCATAD 34
Hearing dates:	5 February 2015
Decision date:	10 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	1. The Respondent is restrained from making any access application to Pittwater Council without first obtaining approval of the Tribunal pursuant to section 110 (1) of the Government Information Public Access Act 2009.
Catchwords:	Government Information Public Access Act 2009 – Access to information – Restraint provisions – whether to make restraining order – beneficial jurisdiction – supervisory function of Tribunal – general jurisdiction of Tribunal – Standing of Information Commissioner in proceedings.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1982 (Cth) Government Information (Public Access) Act 2009 Government Information (Information Commissioner) Act 2009 Local Government Act 1993
Cases Cited:	Department of Defence and W [2013] AlCmr2
Texts Cited:	Opening Up Government – Review of the Freedom of Information Act 1989 NSW Ombudsman - February 2009
Category:	Principal judgment
Parties:	Pittwater Council (Applicant) Phillip Walker (Respondent)
Representation:	Counsel: C Bolger (Applicant) Solicitor: King Wood Mallesons (Applicant) P Walker (Respondent in person)
File Number(s):	1410548

reasons for decision

Introduction

1. Pittwater Council is a New South Wales Local Government entity which is a council within the meaning of the Local Government Act 1993. In addition Pittwater Council is an agency for the purposes of the Government Information (Public Access) Act 2009 (the GIPA Act), in that it is a ‘local authority’ for the purposes of section 4 (1) of the GIPA Act. Broadly, the term agency refers to the NSW public sector and other entities of government within New South Wales including Local Government.

2. The GIPA Act places various obligations on agencies within New South Wales in respect of their publication and release of the information that they create and hold. The GIPA Act provides rights for natural persons to where necessary, apply for unconditional copies of this government information.

3. Whilst the GIPA Act provides rights to individuals and obligations on agencies, the Act also makes additional provision for agencies to request the Tribunal to grant them relief from those obligations in certain specified circumstances.

4. This claim relates to one of those certain specified circumstances, whereby the Respondent Council, sought an order under section 110 of the GIPA Act, to in effect restrain the individual applicant (Mr Walker) from making further applications for information under that Act, to the Council, without leave of the Tribunal. The GIPA Act provides for such an order in respect of ‘unmeritorious applications’, in specified circumstances, which are defined and set out in the section.

Background

5. On 29 September 2014 Pittwater Council lodged a General Application with the Tribunal seeking the following orders:

1. An order that Phillip Walker of (confidential), Mona Vale is not permitted to make any access application, as defined in the Government Information (Public Access) Act 2009 (NSW) without first obtaining the approval of the New South Wales Civil and Administrative Tribunal (the “Restraining Order”).

2. The Restraining Order is to remain in place until further order.

3. Any further order the Tribunal deems fit or necessary.

6. Pittwater Council’s grounds for the application related to a submission that they were an agency for the purposes of the GIPA Act, and that Mr Walker had made 29 applications to Council under the GIPA Act between 3 June 2013 and 4 July 2014.

7. On the basis of evidence and other material that they proposed to tender to the Tribunal, the Council submitted that after consideration of the provisions of section 110 of the GIPA Act, it was open to the Tribunal to make an order restraining Mr Walker from making further GIPA Act applications to the Council.

Applicable Legislation

8. Part 5 of the GIPA Act deals with reviews of decisions in respect of the release of government information. Division 4 of Part 5 deals with administrative review by the Civil and Administrative Tribunal. Sections 100 to 109 under Division 4 deal with matters specifically relating to reviews of reviewable decisions under the GIPA Act.

9. Section 110 of the Act however, (which falls within the Division) does not relate to reviewable decisions, in that it does not concern matters referred to under either section 58 (1) or section 80 of the GIPA Act. That is because rather than providing jurisdiction to review a decision, the section provides for the Tribunal to consider an application (a first instance application) by either an agency, the Information Commissioner, or the Minister for a restraint order. In such circumstances, no decision has made within the determinative provisions of the GIPA Act, but rather an application for relief by way of restraint, being determined by the Tribunal.

10. Section 110 provides that:

Government Information (Public Access) Act 2009 No 52

110 Orders to restrain making of unmeritorious access applications

(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT if NCAT is satisfied that the person has made at least 3 access applications (to one or more agencies) in the previous 2 years that lack merit. Such an order is a restraint order.

(2) An access application is to be regarded as lacking merit if:

(a) the agency decided the application by refusing to deal with the application in its entirety, or

(b) the agency decided the application by deciding that none of the information applied for is held by the agency, or

(c) the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).

(3) A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to particular kinds of information or particular agencies.

(4) A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving notice of the application for approval on the agency concerned and the Information Commissioner.

(5) An application for a restraint order against a person may be made by an agency that receives an access application from the person (whether or not the agency has decided the application) or by the Minister or the Information Commissioner.

(6) NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance.

(7) While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application

11. In my view there are three necessary gateways through which such an application to the Tribunal must pass. First, there must be a history of applications to the agency by the relevant individual under the provisions of the GIPA Act. Then it must be determined by the relevant agency that in respect of a number of those applications, the documents are not held by the agency (in accordance with section 58 (1) (b)), or that to deal with the applications would require an unreasonable and substantial diversion of resources (section 60 (1) (a)), or that access entitlements lapsed in accordance with section 77 of the GIPA Act. Finally, where three or more such applications have been received in the two years immediately prior to the application, the Tribunal has the statutory discretion to make the restraining order.

12. Therefore this application to the Tribunal is not characterised as a review of a reviewable decision, but more so an exercise of a statutory power in a discretionary and somewhat supervisory role, following a finding that the pre-conditions provided for in the section have been satisfied.

13. The jurisdiction arises from both the GIPA Act and section 29 of the Civil and Administrative Tribunal Act 2013. The section provides :

29 General jurisdiction

(1) The Tribunal has general jurisdiction over a matter if:

(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

Note. The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal’s administrative review jurisdiction.

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction:

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.

(4) A general application is an application made to the Tribunal for a general decision.

(5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

The Proceedings

14. The application for relief was filed on 29 September 2014, and annexed a Schedule which listed 29 Access Applications between 3 June 2013 and 4 July 2014 (Schedule A). A further Schedule listed a sub set of 15 Access Applications between 3 July 2013 and 18 June 2014 (Schedule B). Schedule A contains all formal access application by Mr Walker under the GIPA Act in the nominated period, whereas Schedule B extracts from that total pool, those access applications that the Council consider lack merit in accordance with the provisions of section 110 of the GIPA Act, and which they rely on in their application for an order.

15. When the matter was listed for a planning meeting on 11 November 2014, it appears that the Information Commissioner was joined as a party to the proceedings. This had apparently occurred in error, due to some apparent confusion as to the capacity that the Information Commissioner (through their delegate) was present in the proceedings. In an administrative review application under the GIPA Act, the Information Commissioner has a right to appear and be heard in proceedings.

16. Section 104 (1) of the GIPA Act states:

104 Right of appearance before NCAT

(1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division.

17. However, these proceedings are not a review of any decision under the division. They are an application for a first instance decision under the restraint provisions by the Tribunal. It may be that for this reason there was some confusion as to the Information Commissioner’s standing in respect of the proceedings. In any event on 10 December 2014 the Tribunal (on the papers) in response to a written request from the Information Commissioner vacated the joining order of 11 November 2014.

18. The Respondent objected to the Information Commissioner being removed as a party in the proceedings. The Respondent also wished to have the Information Commissioner’s representative give evidence in the proceedings.

19. When the matter came on for hearing on 5 February 2015 the issue of the Information Commissioner’s standing was a live issue which I decided to address as a preliminary point. Having heard from the Respondent, the Information Commissioner and the Applicant, I gave a short ex-tempore decision. The import of that decision was that:

1. The Information Commissioner was not a party to the proceedings.

2. The Information Commissioner had no right to appear and be heard in these proceedings under the provisions of section 104 (1) of the GIPA Act.

3. The Information Commissioner did have a right to appear and be heard in these proceedings under the provisions of Schedule 3 Part 5 Clause (4) (a) of the Civil and Administrative Tribunal Act 2013.

4. The Information Commissioner could not be required to give evidence in the proceedings in accordance with section 41 of the Government Information (Information Commissioner) Act 2009.

20. In respect of the issue of the Information Commission giving evidence, this became relevant at the hearing due to the fact that the Respondent had issued summons to produce documents to both the Council and the Information Commissioner.

Applicants Evidence

21. The Applicant filed two affidavits in evidence and tendered two e-mail items of correspondence at the hearing.

22. The Affidavit of Gabrielle Angles affirmed 14 November 2014 was read and marked as Exhibit 1. In addition a further Affidavit of Gabrielle Angles affirmed 30 January 2015 was tendered. I struck out paragraph 18 of that affidavit and the Applicant conceded, and the document was read less that paragraph and marked as Exhibit 2. The later affidavit of 30 January 2015 put the details of 38 applications into evidence. This provided a further 8 applications after 4 July 2014, and one application dated 18 September 2013 which were in addition to the 29 Applications referred to at paragraph 6 (above).

23. Ms Angles gave oral evidence at the hearing. Ms Angles is the Council’s Manager of Customer Service and Information Division. According to her evidence, part of her responsibilities at Council are to process and respond to GIPA Act applications.

24. In her evidence in chief Ms Angles adopted the contents of her affidavits as true and correct. She was taken to Item 29 in Annexure ‘C’ of the 30 January 2015 affidavit. Counsel for the Applicant in evidence in chief obtained evidence from the witness that the material in this item demonstrated an unreasonable diversion of resources for Council. In particular Ms Angles was asked about the current status of Mr Walker’s GIPA Act application (Item 29 GIPA No G71/14) being: all emails, notes etc regarding removal of 4 hour parking signs in Beeby Park. Internal and external correspondence. January 2014 to present.

25. Ms Angle’s evidence was that she had spent 4 hours so far on that specific request and that there were more than 20 letters which would all require consultations with the authors in respect of their views as to the release of their personal information. This the Applicant submitted was an illustration of the unreasonable diversion of resources in respect of this application.

26. Ms Angle’s evidence was that Council does not have a dedicated GIPA unit, but that she and other staff carry out a range of roles and have multiple responsibilities. Ms Angles has management responsibilities over 24 staff and their work in addition to her own specific work (which includes assessing GIPA applications and responses).

27. Ms Angle’s evidence was that initially the available resources could manage the GIPA responsibilities of Council, but that due to the large influx of applications over the last year and a half from Mr Walker, Council’s resources have been stretched beyond capacity, impacting on individual workloads and the ability of staff to perform numerous roles.

28. Ms Angle’s evidence was that she had estimated the time taken to deal with Mr Walker’s applications as between 1 and 7.5 hours per matter. Ms Angles evidence in respect of the time taken to process matters where no documents we ultimately found, was that for those matters, the time estimates above were conservative.

29. The annexures to the affidavits encompassed copies of the various GIPA Act applications by the Respondent and relied upon by the Applicant in its application. Also included was a copy of a previous decision of the Tribunal dated 2 October 2014 which dealt with three reviews by Mr Walker against decisions by Council to refuse to deal with his applications under the provisions of section 60 of the GIPA Act, specifically that the applications required an unreasonable and substantial diversion of resources.

30. Counsel for the Applicant sought to tender two emails. Counsel submitted that those e-mails indicated aspects of the Respondent’s character, in that the first e-mail was from a Council Manager advising of restrictions on the nature of the Respondent’s contact with Council. The second e-mail was a copy of an e-mail that the respondent sent to all elected Councillors one month later, which (on the Applicant’s submission) showed a lack of compliance with the contact restrictions by the Respondent.

Respondents Evidence

31. The Respondent Mr Walker, was self-represented. He was assisted in the proceedings by an Associate (Mr R Smith) who was affiliated with the same community organisation as Mr Walker. The Respondent advised the Tribunal that the majority of his GIPA Act applications were in connection with the interests and concerns of that community organisation. To the extent that it was necessary I gave Mr Smith leave to inform the Tribunal where relevant of certain details to expand on Mr Walkers submissions.

32. Mr Walker did not provide any specific evidence in the hearing, but made detailed oral (and to a lesser extent written) submissions. Some of those written submissions were by way of a rebuttal to the matters referred to in the schedules and annexures to the Applicant’s application to the Tribunal and of specific aspects of the Council’s determinations.

33. The Respondent made a statement to the Tribunal during the hearing that was by way of an objection to the attempted tender of the two e-mails by Council, and indicated that in his view officers of Council had threatened corporal violence towards him in respect of his general dealings with Council. As indicated, these statements arose in the context of the e-mail tender which it was submitted, sought to indicate the character of the Respondent. As a result, after considering those matters I decline to admit the e-mails and have no regard to them in reaching my decision. I note that matters relating to the character of an individual access applicant are not matters which are relevant to a determination under section 110 of the GIPA Act.

Information Commissioners Submissions

34. The Information Commissioner made written submissions in the matter. The Information Commissioner’s submissions include a reference to the fact that section 110 was included in the initial GIPA Bill when introduced into Parliament.

35. The Information Commissioner submitted that the grounds and reasons (submitted by the agency) should establish the assessments made by the agency in coming to the decision, including why an application has been refused entirely, searches conducted for information, how fees and charges have been established, including any notices given to the applicant and any financial hardship assessments made.

36. The Information Commissioner’s submissions addressed the fact that the Tribunal is not considering whether an applicant is vexatious applicant, but that this consideration arises in other jurisdictions and referred to the Australian Information Commissioner case of Department of Defence and W [2013] AlCmr2 (2 January 2013).

37. However the Information Commissioner submitted that all access applications must be considered and assessed individually and on the specifics of the access application. The submissions included an observation that the number of applications made by the Applicant was significantly higher than the legislative threshold established under section 110(1) of the GIPA Act.

The Respondents Submissions

38. Mr Walker (the Respondent) submitted that the conduct of Council was a misuse of the provisions of the GIPA Act, and that they had been advised on these issues by the Information Commissioner. Specifically the Respondent took issue with Council’s reliance on the various provisions of the GIPA Act that ‘exempt’ agencies from producing documents to applicants. In this regard I inferred the Respondents submissions to relate to section 60 in that agencies can decide not to deal with an application if the agency determines that the requests relates to material which has been subject to a previous request, or that dealing with the matter would require an unreasonable and substantial diversion of the agency’s resources.

39. The Respondent submitted that the agencies previous decisions in respect of unreasonable and substantial diversion of resources, which were upheld by the Tribunal on an earlier review, were evidence of why the access regime was not working, and how it had been misused by agencies in general and specifically the Respondent.

40. The Respondent’s general submission was that in respect of the number of instances where the access application resulted in a nil find of material, then Council was either not complying with record keeping requirements, or was not properly searching for documents which should exist. By way of illustration the respondent nominated a number of instances where Council had allegedly said one thing publically (which indicated that a reasoned process had been undertaken, which would ordinarily result in the creation of some information and records), and then when attempting to obtain copies of documents relating to that process, no documents were forthcoming.

41. An example of the matters referred to by the Respondent, concern the apparent removal of the Queen’s portrait from the Council Meeting Room. The Respondent submitted that the Mayor had made a public statement that the Queen’s portrait had been removed ‘administratively’. The Respondent (and apparently other interested members of the public) wished to known the administrative basis for the removal. However, the GIPA request resulted in a ‘nil find’. A further example given by the Respondent related to a public statement by the Mayor concerning that Council had legal advice on a particular issue and that their position was based on that advice. When a GIPA application was made, once again there was an apparent nil find or ‘no information’. However, I note that there may be a legitimate basis for these information access results, in that some material might be excluded from release, and in other instances (appropriately or otherwise) information may not have been created and as a result no information is available.

42. Other instances where no information was available were in the Respondents submission, a breach of Councils legal and other obligations in respect of Crown leases, management of Crown or public land, and other statutory obligations of Council relating to the use and management of land.

43. I stress that I have not reviewed the specific decisions of the agency, but have noted their notice of decision in these ‘no documents found’ examples in the Annexures to the affidavits. No evidence was adduced in cross examination by the Respondent in respect of such matters which the Applicant relied on as evidence in its application for the restraint order.

44. The Respondent also submitted that the order (as sought) by the Applicant, was unjust and an abuse of the access provisions, but essentially, an attempt by Council to silence him. However the Respondent submitted that generally all of his applications were on behalf of himself and other interested individuals (either through the community group or otherwise), and that if the restraining order was made, then another person would merely make the applications for the documents.

The Applicant’s Submissions

45. The Applicant provided detailed written submissions, as well as oral submission at the hearing. The written submissions supported the evidence that was filed by the Applicant in the proceedings. In addition the Applicant submitted that the reviews of the Applicant’s decisions by the Information and Privacy Commission (IPC) (as sought by the Respondent), and the IPC’s subsequent outcome / finding that the Agency’s decision was correct, supports and affirms the purpose of these proceedings before the Tribunal.

46. Further the Applicant referred to the earlier decision of the Tribunal in respect of the Respondent’s review proceedings in 2014. (See paragraph 29 above). Those proceedings are decisions of Senior Member Montgomery No’s 1410247, 1410346 and 1410434 Walker v Pittwater Council NSW Civil and Administrative Decisions Tribunal 2 October 2014 Administrative and Equal Opportunity Division (unreported). In those decisions the Tribunal determined that the applications did constitute an unreasonable and substantial diversion of resources and affirmed the decisions. The Respondent submitted that in these proceedings those earlier decisions were binding on the Tribunal.

47. The Applicant’s submissions provided an exploration of similar legislative provisions and the various cases in those jurisdictions. The Applicant noted that there were no earlier decisions under these provisions of the GIPA Act (s-110) and that guidance could however be provided by decisions of other jurisdictions and regimes. In the case of Sweeney v Australia Information Commissioner [2014] AATA 539 Deputy President Constance was reviewing a vexatious applicant declaration under the Freedom of Information Act 1982 (Cth) . At [74], [75] and [76] Deputy President Constance noted:

74. The exercise of discretion given to a decision-maker must be exercised reasonably. A decision exercising discretion will be set aside by a Court when the decision-maker has come to a conclusion "so unreasonable that no reasonable [decision-maker] could ever have come to it".[19]

75. Referring to the judgement in Wednesbury, the High Court said:

... when discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.... Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention

- Brennan CJ. In Kruger and Others v. The Commonwealth of Australia [20].

75. One of the principles to be applied in determining what is reasonable when exercising discretionary power which impacts on an individual is that the impact on the individual should be proportionate to the interests which the decision-maker is seeking to protect.[21]

48. The Applicant also made reference to Department of Defence and ‘W’ [2013] AlCmr2 (17 January 2013). At [12] Professor McMillan noted:

12. The policy that underlies this new Information Commissioner function is apparent, to some extent, from the terms in which it is conferred by the FOI Act. The FOI Act confers an important legal right upon members of the public to obtain access to government information. However, that legal right should not be abused by conduct that harasses or intimidates agency staff, unreasonably interferes with the operations of agencies, circumvents court imposed restrictions on document access, or is manifestly unreasonable.

49. The Applicant submitted that there was a balancing act when exercising the discretion under section 110 of the GIPA Act. The balance lies between meeting the objects under section 3 of that Act, and the right conferred on the public to access government information, against the conduct that (the Applicant submitted) unreasonably interferes with the operations of agencies or is manifestly unreasonable. The Applicant also submitted that the restraint order was necessary to protect the operation and use of the Applicant’s resources for the public and local community as a whole, not just one individual.

50. In oral submissions Counsel took me to the case of Re JOHN PATRICK FORD AND CHILD SUPPORT REGISTRAR [2007] AATA 1242 Unreported Handley Senior Member. That case dealt with an entirely different factual matrix to the applications at the centre of these proceedings. The applications involved the personal information of individuals and the proceedings were centred in the context of vexatious behaviour which on the facts, required some level of scrutiny either to reject the applications in first instance or to allow for consideration by way of a requirement for leave to proceed. I emphasise that the behaviour and factual matters in that case are significantly different from that of the Respondent in these proceedings.

51. Further reference was made to Department of Defence and ‘W’ [2013] AlCmr2 (17 January 2013). At [18] Professor McMillan noted:

18. The case law and legislative prescription provides valuable examples of behaviour that has been treated as vexatious or an abuse of process. However, caution is required in applying to FOI requests principles developed in another context. A request for access to documents held by a government agency can be different in nature to legal proceedings commenced by one individual against another. Questions that can arise in the civil litigation context — to do with a person's motive in commencing proceedings, their relationship with or attitude towards the other party, the legal merit of a claim, and the utility of the proceedings — are not usually relevant in an FOI context (for example, FOI Act s 11(2)). The FOI Act also enables agencies to limit the administrative cost or burden of access requests by imposing an access charge (s 11A(1)(b)) or denying access on a practical refusal ground (s 24(1)(b)). On the other hand as noted above in [13], it is now relatively easy and can be cost-free for a person to make multiple FOI requests that can be disruptive and resource-intensive for agencies.

52. I note that these proceedings do not concern any behaviour other than the number and types of applications over a specified period. They do not require a consideration of an access applicants personal behaviour, character and other conduct, (other than the making of applications) even though the GIPA Act provides for a consideration of an applicant’s personal factors (including motives) in determining whether there is an overriding public interest against disclosure in the first instance (as per section 55 (1) of the GIPA Act).

Consideration

53. The evidence of the Applicant is uncontested from a factual basis. The Respondent did not give any significant evidence in the proceedings, however his general objection is to the operation of the GIPA Act in practice, the Applicant’s proceedings generally, and the Applicant’s conduct towards him. None of the evidence is disputed from a factual perspective. The Respondent mainly asserts that the arguments attached to the facts are meaningless.

54. I understand the clear frustration that the Respondent finds in respect of the number of ‘no information’ results to a number of his applications. Whilst it would seem reasonable for a member of the public to expect that agencies hold information on a number of areas relating to their business, how that information is identified (both by agencies and persons seeking access) can often be problematic. By way of illustration, in respect of Items No 24 and 30 of Exhibit ‘A’ of the Affidavit of Gabrielle Angles affirmed 14 November 2014 the Respondent sought copies of material which would ordinarily be held in some form by the agency. The removal of the Queen’s Portrait and the issuing of a Parking Permit to local business would ordinarily be matters whereby a citizen would expect some records to exist. It may be that the removal of the portrait was due to the Council exercising a function which did not mandate any official record keeping in respect of the actual removal. Records might exist in respect of the storage and / or disposal of the apparently superfluous asset / item. The ‘no documents found’ provision in respect of the parking permit is more perplexing, assuming that the Respondent’s assertions that a permit has been issued, are factual.

55. Issues could still arise with how an applicant particularises their request and how the agency interprets and understands that request. I note that the Information Commission has issued a Knowledge Update on the issue of reasonable searches and how agencies might identify what information is being requested as a preliminary point. The beginning of that document includes the following:

Knowledge update - Reasonable searches under GIPA (PDF, 206kb)

Section 53 of the Government Information (Public Access) Act 2009 (GIPA Act) sets out the obligations of NSW public sector agencies to undertake searches for information requested in an access application.

Receiving an access application

A valid access application under the GIPA Act requires an applicant to include such information as is reasonably necessary to enable the relevant government information to be identified.

Once satisfied that it understands what information has been requested, an agency must then undertake searches to ascertain whether or not the information is held. A common theme in the reviews conducted by the Information Commissioner is that applicants consider that the agency has not properly searched for the information requested. This knowledge update seeks to provide some guidance to agencies regarding what is a reasonable search and how to deal with the issue of having conducted reasonable searches in the agency’s notice of decision

56. However, if these proceedings were a review of those decisions then weight could be applied to the relevant evidence. It may well be that if (by way of example) such matters were remitted to the agency to reconsider, more tailored and accurate searches utilising no greater resources, may identify information relevant and within the scope of the request. This type of outcome is not unusual in matters that go to the Information Commissioner or the Tribunal on review.

57. In respect of the reasonable search issue, I note the observations of Senior Member Montgomery in his decision of 2 October 2014 (see paragraph 45 above). When addressing the section 60 discretion, the following was said at paragraph 4 page 2 of that ex-tempore decision.

There are clear risks in exercising the s 60 discretion and Mr Walker has raised that as an issue. I think that it is a fair comment because the discretion is based on an assessment of the resources that would be needed to deal with the applications. It relates to the resources that are available to the council and the available resources are solely within the control of the council. The power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist the applicant in narrowing the request. Agencies should not rely on the power of refusal to process simply because their information management systems are poorly organised and documents take an unusually long time to identify and retrieve.

58. Whilst I agree with submission supported by the Applicant’s evidence that the unreasonable and substantial diversion of resources argument is made out in the current case, I disagree with the Applicant’s submission that I am bound by the findings of the earlier decision of the Tribunal of 2 October 2014.

59. I also note the Applicant submitted that the Respondent’s submission concerning public versus individual merits. At paragraph 31 of those submissions the Applicant submits that the imposition of a restraint order is necessary to protect the operation and use of the Applicant’s resources for the public and community as a whole, not just one individual. Whilst I agree with this proposition, it was clear during the hearing that the Respondent’s GIPA applications relate to the interest of a group of persons but out of necessity under the GIPA Act, are brought by an individual. I have no doubt from the nature of the applications and the Respondent’s submissions that he views his access applications as being brought in the public interest.

60. I am satisfied on the evidence before me that the preconditions for an order under section 110 (3) of the GIPA Act are made out. This is especially so in respect of the evidence which falls within the section 100 (2) (a) consideration as ‘lacking merit’, in that the agency decided the application by refusing to deal with the application in its entirety. In that instance I attach significant weight to the section 60 (1) (a) consideration:

60 Decision to refuse to deal with application

(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,

61. On the evidence before me I am not satisfied that there are sufficient grounds to make a decision based on the section 100 (2) (b) consideration as ‘lacking merit’ in that the agency decided the application by deciding that none of the information applied for is held by the agency. Whilst that is the submission that is put to the Tribunal, other than that being the agency’s finding, there is minimal evidence to indicate from the attachments to Exhibit 1 that would allow me to make such a finding.

62. In note that the provisions of section 110 (2) (c) are not relevant in these proceedings.

The Basis of a Restraint Order.

63. Other than the Information Commissioner’s reference to section 110 being in the GIPA Bill from the outset, no substantial submissions were made by the parties on the provision, other than to reinforce that the provision is within the Act, is discretionary, and (from the Applicant’s perspective) provides for the Tribunal to have a supervisory role in the operation of certain aspects of the GIPA Act.

64. I have identified what may be the source of section 110, when the Bill was being drafted. Notwithstanding the provisions for excessive applications, unmeritorious applications and vexations applications in other related jurisdictions, there is no case law or parliamentary debates or analysis about this provision. However I note that the GIPA Act arose from the New South Wales Ombudsman’s ‘Opening Up Government – Review of the Freedom of Information Act 1989’ report of 5 February 2009. At Chapter 7, 7.7 the Ombudsman reported the following:

7.7. Repeat FOI applications

Members of the public can apply under the FOI Act for documents as many times as they want.

We know a number of agencies have difficulties with individuals who make unreasonable and repeat applications and as a consequence become a significant drain on public resources.

The FOI Act is intended to provide transparency in government and agencies need to be appropriately resourced to fulfil this objective. As raised in the discussion paper, there are several groups of people such as journalists and MPs who use the Act frequently as a tool to legitimately obtain information to help them with their work.

However, there is no public interest served in agencies using considerable resources to deal with a small number of persistent individuals repeatedly seeking access to the same or related documents, some of which are legitimately exempt.

As part of a joint Australian Ombudsman project about unreasonable complainant conduct, strategies to deal with repeat applications have been analysed. The experience from a range

of jurisdictions shows that a small number of people exercise their statutory rights to make FOI and privacy applications in ways that unreasonably impact on the resources of agencies, create significant equity considerations in relation to the ability of other applicants to exercise their rights and sometimes adversely impact on the health and welfare of agency staff. While

the number of these kind of applicants is small, their conduct or activities can have significant cost implications for agencies and external review bodies. For example, just two applicants are the subject of approximately 30% of the ADT’s FOI related decisions since 2004.

This is not just an issue related to FOI applications. The Vexatious Proceedings Act 2008 received assent on 5 November 2008. For the purposes of that Act a vexatious litigant is a person who frequently and persistently seeks to commence legal action without reasonable

grounds or for improper purposes. The Act expands the power of the Supreme Court to make orders restricting proceedings in courts and tribunals by vexatious litigants.

While welcome, we do not consider that the Vexatious Proceedings Act will enable agencies or the ADT to properly manage repeat applicants. It is based on the motive and intentions of an applicant, their conduct not the content of their applications. The main consideration when dealing with repeat FOI applicants is whether the number of applications made to an agency

about the same or similar issues has an unreasonable impact on agency resources, delaying processing of other applications. The basis for the test should be where one person exercises their rights in ways that detrimentally impacts on the ability of other people to exercise theirs.

This is a more practical, and perhaps a less subjective, test than questioning whether an applicant is ‘vexatious’, which requires an assessment of the applicant’s intention or motive. It also ensures the impact of numerous applications can be taken into account.

Submissions to the discussion paper gave general support for agencies to have the ability to refuse applications (subject to rights of external complaint or review) based on excessive numbers of applications for documents about the same or similar issues over a 12 month period where dealing with them would unreasonably divert resources away from the agency in the exercise of its functions.

65. The report went on to observe that a number of submissions addressed personal factors of an individual applicant in a manner relating to their behaviour, and disposition. In response at 7.7 the Ombudsman noted that:

This is not what was suggested in the discussion paper. We are not concerned with an applicant’s motive, and certainly not their personality. Rather the issue is one of equity; the

unreasonable impact on the resources of agencies caused by a limited number of people applying repeatedly for documents about the same or closely related issues. Repeat applications from a small number of individuals can take up a disproportionate amount of agencies’ finite resources with a corresponding impact on other work, including dealing with other applications.

We suggest the new Act contains a provision giving the ADT the power to make orders along the lines of civil restraint orders in the UK Civil Procedure Rules.194 The supplementary Practice Direction — Civil Restraint Orders sets out the circumstances in which orders can be made without reference to the prejudicial term ‘vexatious’. Rather the practice direction refers to ‘applications which are totally without merit’. Such orders stop someone from making any further applications without first obtaining the permission of a judge identified in the order.

66. In the recommendations at the end of Chapter 7, the following matters relevant to these proceedings were recommended:

73. The factors set out by the ADT to guide an agency in assessing whether an application might constitute an unreasonable diversion of resources should

be included in guidelines produced by the Information Commissioner. Such

guidelines should also include details of other measures an agency should

consider when dealing with applications for voluminous documents such as

providing a list of documents within the scope of the application to the applicant or arranging for an applicant to view the documents.

74. The new Act should contain provision for the ADT to make orders along the lines of civil restraint orders in the UK Civil Procedure Rules concerning

applications which are totally without merit or would result in an unreasonable

diversion of resources.

67. I note that the vast majority of the Ombudsman’s Recommendations arising from this report were adopted and where relevant were incorporated into the drafting of the GIPA Act.

Terms of Restraint Order

68. Towards the end of the hearing I sought Counsel’s views in respect of the Applicant’s position of what order I might make under the provisions of section 110 of the GIPA Act. Section 110 (3) states that ‘A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to particular kinds of information or particular agencies’. The Applicant conceded that they only sought the order in respect of Pittwater Council, as a particular agency.

69. In respect of the types of or particular kinds of information that the order should relate to, clearly, as a starting point information relating to: Beeby Park, Kitchener Park and Mona Vale Village Park, would appear to encompass the types of matters that Council has predominantly relied upon in running its application for restraint, and identifying applications that lack merit in accordance with the provisions of section 110.

70. However I note that there are other examples (such as the Queens Portrait example), which from material provided during the hearing appear to relate to the Respondent’s more broader interests in the conduct of Council, as well as possibly some of his colleagues in the local community association. I note that the Applicant has also used these types of examples in the material that it relies upon for the restraint order. In that regard it would appear that for the supervisory type role of the Tribunal, a general order concerning all applications directed to Pittwater Council (as an agency) may be more appropriate in the first instance and this can be examined in any subsequent leave applications by the Respondent under section 110.

71. I also note that the Act provides no guidance as to any further terms of the order, such as whether the order can be made for a specified period. The general provision is that any final order is in perpetuity. It appears that this decision will finalise these proceedings (in the first instance) and any application to the Tribunal for leave to lodge an access application would be a fresh application / proceedings which would follow the provisions set out in section 110 (4) of the GIPA Act.

72. I also note that the section refers to a restraint order ‘being in force’. (s-110 (7) ‘While a restraint order is in force against a person’). These words seem to indicate that there is a period of time that the order remains operational, but other than an open ended period, no time is specified in the GIPA Act. This provision seems somewhat contrasted with the ‘time’ requirements in section 110 (1) which enliven the restraint provisions. (2 years) Perhaps this aspect should be considered as part of any statutory review of the GIPA Act, or any future law reform reference.

73. Section 58 of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal may make conditions applicable to orders.

58 Power to impose conditions

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.

74. I note that the terms of the order sought by the Applicant as per paragraph (5) above is that::

1. The Restraining Order is to remain in place until further order.

75. As a result, I determine that in the absence of any submission to the contrary any section 110 order will be made in those terms.

76. It may well be that with the Respondent required to seek the Tribunal’s approval prior to making any access applications, as part of that process his applications may become more focused, and as a result less likely to fall within the provisions of section 60, or the information may be more likely to be identified by the Agency.

Should the discretion be exercised?

77. I note that the GIPA Act is beneficial legislation. It’s objects and the intention of Parliament in respect of its application are as follows:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

78. When balancing the competing interests of these objects and the restraint provisions of section 110 of the GIPA Act, I again note the case of Sweeney v Australia Information Commissioner [2014] AATA 539. I believe that the observations of Deputy President Constance at paragraph 74 and 76 are relevant when considering this balance.

74. The exercise of discretion given to a decision-maker must be exercised reasonably. A decision exercising discretion will be set aside by a Court when the decision-maker has come to a conclusion "so unreasonable that no reasonable [decision-maker] could ever have come to it".[19]

76. One of the principles to be applied in determining what is reasonable when exercising discretionary power which impacts on an individual is that the impact on the individual should be proportionate to the interests which the decision-maker is seeking to protect.[21]

79. I am satisfied that the elements of section 110 (1) are made out on the evidence before the Tribunal. I am also satisfied that having regard to the evidence and submissions, that in the exercise of my statutory discretion, the impact on the individual (the Respondent) is proportional to the Applicant’s interests, which this decision will protect, when considering the totality of the legislative regime in which those interests (and prohibitions) arise.

Conclusion

80. I make the following orders:

1. The Respondent Mr Phillip Walker is restrained from making any access application to Pittwater Council without first obtaining approval of the Tribunal pursuant to section 110 (1) of the Government Information Public Access Act 2009.

2. This order is to remain in force until further order of the Tribunal.

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: 10 March 2015