Saggers v Environment Protection Authority
[2013] NSWADT 204
•16 September 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Saggers v Environment Protection Authority [2013] NSWADT 204 Hearing dates: On the papers Decision date: 16 September 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The decision under review is affirmed.
2. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused
Catchwords: Access to government information - access application - reasonable searches - bad faith - section 112 referral Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Freedom Of Information Act 1989Cases Cited: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460
O'Hara v North Sydney Council [2005] NSWADT 100Texts Cited: Statutory immunities: when is good faith honest ineptitude? M. Henry; Australian Journal of Emergency Management; 2000 pages 10 -15. Category: Principal judgment Parties: Colin Saggers (Applicant)
Environment Protection Authority (Respondent)Representation: R Fox, Office of Environment and Planning (Respondent)
File Number(s): 123289
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of a determination by the Respondent, the Environment Protection Authority, in regard to an application by the Applicant, Mr Saggers, seeking access to information held by the Respondent ("the access application"). In his access application under the Government Information (Public Access) Act 2009 ("the GIPA Act") the Applicant sought:
"All of the documentation in the possession of the agency that will have been created by said agency to process GIPA Informal Application No 10 commencing with the attached letter from Mr Rob Hogan dated 15 June 2012 up to and till the recept of this application."
The Respondent received the access application on 4 September 2012. The Respondent's GIPA/Privacy Officer, Dr Racho Donef, determined the access application on 14 September 2012.
The Informal request for documents referred to as 'GIPA Informal Application No 10' was in the following terms:
Those documents held by the agency that would constitute the review made under the Protection of the Environment Operations Act (the Act) to license No 11483. The date would be some time in the years 2003/4/5. It will be the 5 year review period prior to the review commenced 18th June 2009.
Dr Donef identified a number of documents as falling within the scope of the access application and he determined to release the documents in full. Other documents that were identified were withheld as not falling within the scope of the access application.
The Applicant subsequently advised Dr Donef that he had not received attachments to one of the released documents. Those attachments were subsequently released.
The withheld documents were also subsequently released notwithstanding the view that that they did not fall within the scope of the access application.
It seems that Dr Donef had also dealt with the GIPA Informal Application No 10 and that he had identified eight documents as falling within the scope of that application. He determined that four of the documents were to be released to the Applicant. The remaining four documents were withheld from the Applicant on the basis that there was a public interest consideration against disclosure of information because disclosure of the information could reasonably be expected to prejudice a person's legitimate business, commercial, professional or financial interests and that the information included personal information about a person of a kind that required consultation: clause 4(d) of the table to section 14 of the GIPA Act and section 54(2)(a) of the GIPA Act.
The documents requested in the GIPA Informal Application No 10 were subsequently released to the Applicant.
In his application to the Tribunal the Applicant raised as an issue for determination as to whether a reasonable search was taken for the purposes of section 53(2) of the GIPA Act. He subsequently clarified his application in the following terms:
There are two main issues for determination in this application. These are
(a) Whether the Determining Officer adequately searched for all documents held that came within the terms of the applicant's Formal GIPA Request: and
(b) Whether the documents that came within the terms of the applicant's request and for which the Determining Officer had refused access ... were exempt on the grounds of
(i) having already been supplied during an Informal Request and
(ii) were exempt on the grounds that they fell within Sect 14 Public Interest Considerations
...
Related to these issues is whether the Determining officer of the EPA had acted inappropriately in the exercise of his duties on behalf of the EPA and that the Determining Officer responsible for dealing with the applicant's GIPA request failed to meet their obligations under the GIPA Act and that they failed to exercise in good faith the functions conferred and imposed on them: see s.112 GIPA Act 2009
The parties agree that the matter should be determined on the papers without the need for a hearing. I agreed with that position.
Pursuant to section 104 of the GIPA Act, the Information Commissioner has a right to appear and be heard in proceedings before the Tribunal. A representative of the Information Commissioner attended planning meetings but subsequently elected to not make submissions in relation to the issues to be determined.
Applicable legislation
The objects of the GIPA Act are set out in section 3(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.
'Government information' is given a wide meaning (section 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in section 4. It includes "(c) a public authority." Public authority is in turn defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Respondent is an agency to which the GIPA Act applies.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (section 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1 (section 11). Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (section 14(1)).
With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (section 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited.
There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. It provides -
There is an overriding public interest against disclosure of government information for the purposes of this 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.
In considering whether there is an overriding public interest against disclosure section 16 provides that the following principles apply -
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
The public interest considerations against disclosure are limited to those set out in the Table to section 14. Section 14(2) provides that -
The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Section 53 of the GIPA Act provides:
53 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.
Section 112 of the GIPA Act provides:
112 Report on improper conduct
If the ADT is of the opinion as a result of an ADT review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, the ADT may bring the matter to the attention of the Minister who appears to the ADT to have responsibility for the agency.
Part 6 Protections and offences
Section 113 of the GIPA Act provides:
113 Protection in respect of actions for defamation or breach of confidence
(1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made:
(a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and
(b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency.
(2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed.
Section 114 of the GIPA Act provides:
114 Protection in respect of certain criminal actions
If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made, neither the person by whom the decision is made nor any other person concerned in disclosing the information is guilty of an offence merely because of the making of the decision or the disclosing of information.
Section 115 of the GIPA Act provides:
115 Personal liability
No matter or thing done by an agency or officer of an agency, or by any person acting under the direction of an agency or officer of an agency, if the matter or thing was done in good faith for the purposes of executing this Act, subjects the officer or person so acting, personally to any action, liability, claim or demand.
Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review. A decision made on internal review is a reviewable decision. A person aggrieved may seek a review by the Tribunal (section 100). When this provision is read with section 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act.
The Tribunal's function on review under section 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
In any review of a reviewable decision section 105 places the burden of justifying the decision on the agency concerned. In this particular matter, the Applicant has raised the issue of the sufficiency of the search undertaken by the Respondent. It is for the Respondent to show what steps were taken in the search for information falling within the scope of the access application and to satisfy the Tribunal that those steps were sufficient.
However, section 112 of the GIPA Act does not concern the review of a reviewable decision. The Applicant has raised the issue of whether an officer of the Respondent acted inappropriately in the exercise of his duties, failed to meet his obligations under the GIPA Act and failed to exercise in good faith the functions conferred and imposed on them.
The Applicant has requested referral of the matter pursuant to section 112. Such a referral requires that the Tribunal form the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under the GIPA Act. In my view, the Applicant has taken on a role comparable to that of prosecutor. He therefore bears the burden of establishing the facts upon which he seeks to rely for the purposes of section 112.
The Applicant's Case
The Applicant has provided written submissions in support of his application. He submitted:
Some time around the 14th July 2012 Dr Racho Donef PhD Senior Project Officer EPA GIPA/Privacy liaised with Ms Ruth Claydon of the EPA Waste Section as to how documents located for the Informal Request known as (GIPA No 10) should be assessed. It was agreed that eight documents would be disclosed as existing, four of the documents would be classified as documents to be released to the applicant and four would be withheld from the applicant under GIPA Section 14 Table 4 (d) or as GIPA Section 54 (2) (a) concerns the person's business, commercial, professional or financial interests.
Subsequent release of those documents has demonstrated that those four documents classed as to be withheld from the applicant were not of the class GIPA Sect 54(2)(a) but were in fact normal agency working documents as set out in GIPA Section 7 (1) and should have been classified as to be released under the NSW Governments policy of authorised proactive release of government information.
For reasons not disclosed the agency did not release any documents from Informal request GIPA No 10 to the applicant until pressed during ADT Hearing No 123289 when four documents were released on the 30th October 2012 by Dr Donef's colleague Ms Sylvia Lowe.
On the 14th September 2012 Dr Racho Donef became the Determining Officer to EPA Formal Application GIPA No 214.
This application was a request for all of those documents pertaining to the acknowledged, but at that time unreleased Informal Application GIPA No 10, the thrust to the request being for all of those documents that constituted the PEOA Act 1997 [the Protection of the Environment Operations Act 1997] - Sect 78 Five Year Review into EPA License No 11283 on the 6th October 2004.
On receiving the request and without any form of consultation with the applicant Dr Donef manipulated the application to have the exclusive meaning as to it being a request only for the initial processing of the GIPA Informal Application No 10 with that being at the exclusion of any of those documents known to Dr Donef that had been captured under Informal request GIPA No 10.
On the 14th September 2012 Dr Donef released 6 documents in accordance with his gerrymandered version of the application and made claim to the applicant to have determined the application in full.
By letter dated the 18th September 2012 a request was made by the applicant to Dr Donef under GIPA Section No 58 How applications are decided, 58 (3) "If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision" and requested to have a supplementary decision to the one made on the 14th September 2012
On the 25th September 2012 Dr Donef made the decision to refuse the applicant's Sec 58 (3) request outright, citing as his reasons (a) the documents requested were outside of his version of the application and that (b) documents requested were documents that had already been supplied and therefore were already available to the applicant and (c) that others of the documents requested were documents concerning a persons business, commercial, professional or financial interests and subject to GIPA Sect 54.
Following this 25th September 2012 refusal by Dr Donef, the applicant wrote once more on the 28th September 2012 to Dr Donef, followed up by a second sending on the 3rd of October 2012 with regard to his application. Those communications remain as correspondences not acknowledged by Dr Donef.
Under the pending scrutiny of an ADT Review Dr Donef conceded and on the 11th December 2012 released all of the known relevant documentation.
In doing so Dr Donef chose to disregard the applicant's previous request of 18th September 2012 for the very same documents under Section GIPA 58(3) "How applications are decided" and for reasons known only to him chose GIPA Section 76 "Providing access to information not applied for", a determination which in point of fact was not true as those documents would have previously been captured in the original application of 14th September 2012 and had been applied for by the applicant on the 18th September 2012 with that request made by the applicant being refused by Dr Donef.
The release of those documents on the 11th December 2012 confirmed they were not documents that could reasonably be classified by the agency as GIPA Section 54 (2) (b) "documents concerning a person's business, commercial, professional or financial interests" as Dr Donef had for the previous six months continuously claimed them to be.
In reply to the submissions provided on behalf of the Respondent, the Applicant submitted:
...
What the ADT is charged to review under GIPA Act 2009 Sect 112 is a concern made by an Applicant of an objective bad faith, not malfeasance in public office, which is a subjective bad faith.
The Applicant submits that the facts to be reviewed arise from documents that are readily available to the agency in-house lawyer and are set out in the Applicant's submission in support of his Application to the Tribunal. The issue of concern to the Applicant is that the application was not regularly and properly done and that the determining officer did not demonstrate a scrupulous approach in the performance of his duties under the Act.
It is to be noted that the Defendant solicitors do not disagree with the substance of the Applicant's submission. The only objection made by the Defendant solicitor to those facts and sequences as set out by the Applicant by way of a history of events being the Applicant's use of a single word, a word which was used to be seen only in a descriptive way i.e. to gerrymander or to make a decision so as to reach an undue conclusion.
Whether the decision made was intentional is not something that can be concluded by the Applicant and as such was not intentionally made by the Applicant in his submission to the Tribunal.
The Respondent's solicitors state that bad faith can only be heard by the ADT if there is what they call a prima facie case of subjective bad faith. I would point to [O'Hara v North Sydney Council [2005] NSWADT 100] - a case which the Respondent solicitors are well familiar. A case where a similar concern of officers acting inappropriately in the exercise of their duties on behalf of the agency was made out and argued with a Tribunal decision given by Higgins S (see NSWADT 100).
The Defendants solicitors have provided a statement from the determining officer which on its face sets out to establish that all was done in accordance with normal acceptable procedures or at worst it is simply a case of honest ineptitude.
On this the Applicant disagrees and wishes the Tribunal to use its powers to reach a decision as to whether the various actions of the determining officer in the handling of Application No GIPA 214 was made in either good or bad faith.
The Applicant has also referred to an article by Mark Henry titled Statutory immunities: when is good faith honest ineptitude? Australian Journal of Emergency Management; 2000; pages 10 -15. The article discusses the Federal Court decision in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460 and other matters in which the concept of good faith was considered. The discussion considers objective bad faith and subjective bad faith. As noted above, the Applicant's submitted that for the purposes of section 112 of the GIPA Act, objective bad faith is the applicable standard.
In Mid Density Developments Pty Ltd v Rockdale Municipal Council the Federal Court found that the statute under consideration called for something more than 'honest ineptitude'. The court also stated that there must have been a real attempt by the statutory authority to answer the request for information at least by recourse to the materials available to it.
The Court held that the question of whether or not the concept of good faith embraces more than honesty will depend upon the statutory context. In certain circumstances, the test of whether actions are bona fide or in good faith will be based on the exercise of caution and diligence to be expected of an honest person of ordinary prudence. There would need to be a genuine attempt to perform the function correctly and an attempt to fulfil the duty of care.
In Mid Density Developments Pty Ltd v Rockdale Municipal Council the interests of the recipient of the information and others who incurred substantial liability on the faith of what was disclosed by the public authority were key considerations in determining the broader meaning of `good faith'. Where a public authority alone is in a position to provide information and to act, a failure to do so would evidence a failure in the exercise of the ordinary prudence and diligence expected of an honest person. This would mean that no good faith immunity would apply.
The Court also considered the public policy reasons for the immunities, including that the provisions were designed to strike a balance between the interests of the authority and the recipient and in what circumstances the individual interest should yield to the wider public interest. The public policy considerations relevant to the application of the immunity will have to be assessed on the facts of each case.
The Respondent's Case
The Respondent relies on the statement of Dr Donef and written submissions by its solicitor, Mr Fox.
Mr Donef provided a history of the matter and an outline of the steps he took in relation to the Applicant's access application. He stated (paragraph numbering and references to attachments deleted):
I processed the application in good faith.
As the request related to Mr Saggers' previous requests for information to the EPA and he had referred to Rob Hogan in the scope of the request, I issued a "search email" on 5 September 2012 to Belinda Lake, Jacqueline Ingham (Head Waste Compliance (Sydney Transfer Stations) and Ron Hogan (Manager Waste Operations, Waste Operations Unit). ...
On 5 September 2012, Belinda Lake informed that she no longer worked within the transfer team and had no involvement with Mr Saggers' GIPAs.
I am aware that a TRIM records search was conducted by Jacqueline Ingham to identify and locate Mr Saggers Informal GIPA request 10. Jacqueline Ingham handed me a copy of TRIM records search dated 7 September 2012. This search identified the location of the files in relation to GIPA Informal request 10. This indicated to me that she had completed a reasonable search for the files that might contain any relevant documents.
Documents were subsequently provided to me by Sydney Transfer Stations Unit. I numbered and examined the six documents being mindful that under section 5 of the Act, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. I found no factors overriding public interest against disclosure.
On 13 September 2012 a cheque backdated to 30/08/12, correctly addressed to the Office of Environment and Heritage was received by OEH.
I sent my notice of decision on 14 September 2012, one day after the cheque was received and eight working days after the application was received. In good faith, I released all documents provided to me by the EPA and I decided not to request any processing charges.
Mr Saggers wrote to me on 18 September 2012 informing me that document numbered #2, a briefing note written by Ruth Clayden on 13 July 2012, had three attachments missing.
On 19 September 2012 I forwarded Mr Saggers communiqué to the EPA and received a response on the same day, to the effect that:
I understood that the GIPA related to all documentation created by the said agency to process Informal GIPA No. 10 from the letter from Rob Hogan dated 15 June 2012 to the receipt of the application on the 28 August 2012. The attachments were not included, as they were not created by the agency during the said period.
Mr Saggers was provided the associated documents listed under Attachment 1 in this formal GIPA. He has also been provided documents listed under Attachment 2 in Informal GIPA 10.
In the event that Mr Saggers would like to obtain the documents listed under Attachment 3, I would suggest that formalise his Informal GIPA 10, excluding the 4 documents he already obtained under Informal GIPA 10, namely:
"those documents held by the agency that would constitute the review made under the POEO Act to licence no. 11483. The date would be some time in the years 2003/415. It will be the 5 year review period prior to the review commenced 18 June 2009".
We will then be able to consult with the third parties involved in the production of the 4 remaining documents under Attachment 3. ...
Based on this email, I understood that Mr Saggers had already been provided with Attachments 1 and 2 to Ruth Clayden's briefing note (document #2) in the EPA's response to Informal GIPA No 10.
On 25 September 2012, I wrote to Mr Saggers informing him that he had already received them ...
I then went on annual leave.
When I returned from annual leave, I was told that due to an administrative error, when responding to the informal request No 10 the EPA had not posted to Mr Saggers the attachments 1 and 2 to Ruth Clayden's briefing note. I understand that those documents were sent to Mr Saggers on 11/10/12, while I was on leave.
Mr Saggers wrote to the EPA again on 26 September 2012 requesting the four documents "referred to under Saggers GIPA No 10 as being documents refused as they would reveal information that concerns a third party business" while an ADT case was already in progress. This request was made under section 76 of the GIPA Act. Section 76 of the GIPA Act concerns additional documents, not in scope of the request and therefore constitutes a new request.
Nevertheless, exercising my discretion and having consulted the third party, I released the additional documents on 11 December 2012, within 11 working days of the additional documents request. I did this in order to assist resolving the matter, noting my view the documents fell outside the scope of the original request.
At all times I acted in good faith.
In relation to the Applicant's allegations regarding Mr Donef's conduct, Mr Fox submitted:
1. The Applicant has made serious allegations in his submissions about the conduct of Mr Donef without providing any evidentiary basis to support those submissions. This is despite the Tribunal specifically ordering him to serve the evidence on which he relies.
2. In the absence of evidence, the allegation that Mr Donef acted in bad faith to intentionally "gerrymander" the response to the application is vexatious and unsubstantiated. The Applicant has been unable to provide any documentary evidence that supports this assertion. Even on the face of the documents to which the Applicant refers in his submissions, there is no evidence of an intention to subvert the handling of the subject application in bad faith.
3. This case can be distinguished from a hypothetical case in which a document, or series of documents, discloses bad faith on the part of an officer of an agency. It can also be distinguished from a case in which evidence of bad faith arises during the course of evidence given by an officer.
4. The only evidence is that of Mr Donef; to the effect that he acted in good faith. The GIPA Act (ss 113, 114 and 115) contain presumptions that give specific protections to officers such as Mr Donef. These protections are designed to ensure a fair and effective system as set out in the objects of the GIPA Act (s3). These objects would be undermined by allowing the Applicant to press his allegations without at least a prima facie case. As a precedent, it may slow decision making as officers of agencies handling applications seek detailed legal advice on whether they will be exposed to personal sanction and inquisition.
5. In our view, a solicitor acting for Mr Saggers would be prohibited from making the allegations, given the absence of any proper evidentiary basis, by the ethical duties set out in the Solicitors Rules, Rule A.35. Further, the Applicant's submission may in fact be defamatory if published outside of legal proceedings.
6. It would be contrary to the objects of the ADT Act and the interests of justice for the Applicant to be allowed a forum to air the allegations against Mr Donef without evidence. We seek an order to that effect prior to the matter proceeding to hearing.
Discussion
In Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5, Judicial Member Isenberg discussed the approach to be taken in determining whether the search undertaken by an agency is sufficient. In doing so she referred to a number of authorities that considered that issue for the purposes of the now repealed Freedom Of Information Act 1989 ("the FOI Act"). She stated:
10 In deciding whether a sufficient search has been carried out, the ultimate issue for the Tribunal is whether the agency's conclusion, that it does not hold the documents sought by the applicant, is sound.
11 What constitutes a sufficient search has been considered by the Tribunal in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the President said that the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, should be adopted in addressing sufficiency of search issues. In Shepherd the Information Commissioner said at [19] that there were two questions for consideration were:
'(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.'
12 This approach has been followed by the Tribunal in a number of cases such as DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 (Patsalis); Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35; O'Hara v North Sydney Council [2005] NSWADT 100 (O'Hara); and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.
13 It is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69].
14 With regard to the second part of the test set out in Shepherd, President O'Connor considered the key factors in assessing whether a sufficient search had been carried out in Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. These factors included, relevantly, the ability to retrieve any documents that are the subject of the request. What constitutes a sufficient search will vary with the circumstances.
15 In Patsalis at [63], President O'Connor said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate: see also O'Hara. In Patsalis, the documents to which the applicant sought access had existed but were subsequently lost. Numerous searches were conducted but failed to find them and, ultimately, his Honour concluded at [59] that 'it would be a waste of time to ask the agency to do any more searches'.
Dr Donef's evidence set out clearly the endeavours he undertook, on behalf of the Respondent, to retrieve the information that was within the scope of the Applicant's access application.
His evidence has not been challenged and I accept it. In my view there are no reasonable grounds to believe that there is any other information that falls within the scope of the Applicant's access application. In the circumstances, I am satisfied that Dr Donef's search efforts were reasonable in all the circumstances of a particular case.
Therefore, the decision under review should be affirmed.
In relation to the Applicant's allegations regarding Mr Donef's conduct, the Applicant relies on the decision of Judicial Member Higgins in O'Hara v North Sydney Council [2005] NSWADT 100. In that matter, Judicial Member Higgins considered the conduct of the North Sydney Council for the purposes of section 58 of the FOI Act. Section 58 provided:
58 Tribunal may report improper conduct
If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.
Judicial Member Higgins discussed the conduct of the council's officers in dealing with the request for documents under the FOI Act and the operation of section 58. She was critical of the conduct but concluded:
... in my opinion there is no evidence of improper conduct, as defined in s.58 of the FOI Act by any officer of the Council. However, in my opinion, the Council needs to re-examine its procedures for dealing with an FOI request, in particular its procedures in respect to what is required in the written notification of its determination, initially and on an internal review where access to documents is to be refused. ... in my opinion, the Council failed to fully comply with these requirements: see s.28(2) of the FOI Act.
At paragraph [68] of the decision the Judicial Member stated:
68 The final matter raised by the applicant was the Council's delay in providing the applicant with the documents relating to legal costs following the decision of the Ombudsman in July 2003. As mentioned above, these documents were provided, without deletions, to the applicant on 28 October 2003. It is difficult to understand how the Council came to the view that the documents were privileged. However, on the material before the Tribunal, it would appear that this view, even though it was incorrect, was genuinely held. In this regard I note that the Council sought further legal advice, which it was entitled to do, following the decision of the Ombudsman. Although the position of the Council was misconceived, and there was a further delay in obtaining legal advice, in my opinion, there is no basis to make adverse findings against any officer of the Council in this regard.
It appears from paragraph [68] that the Judicial Member was adopting a subjective bad faith standard in that she considered it significant that while the officer's view was incorrect, it was genuinely held. In my view this is the applicable standard for section 112 of the GIPA Act. This is apparent from the statutory context as referred to by Mr Fox. However, if I am wrong in that regard, it does not affect my decision in this matter. For the reasons set out below, neither standard is met in the circumstances of this matter.
In the present matter, the Applicant's allegation appears to be related to Dr Donef's interpretation of the access application. As Mr Fox has noted, the only evidence that is before me is that provided by Dr Donef. That evidence is not challenged. Dr Donef's makes it clear that he held a genuine belief in regard to the scope of the request and a genuine belief that the Applicant had been given attachments when in fact that was not the case.
Despite his belief that documents did not fall within the scope of the access request, Dr Donef nevertheless determined to release them.
On the subjective bad faith standard, there is no evidence of improper conduct. There is no basis for the view that Dr Donef has failed to exercise in good faith a function conferred on him by or under this Act.
In my view, the circumstances of this matter can be distinguished from those considered by the Court in the Mid Density Developments Pty Ltd v Rockdale Municipal Council case. This is not a case in which the Applicant has relied to his detriment on information provided by the Respondent. In any event, if objective bad faith is the applicable standard the unchallenged evidence suggests that Dr Donef made a real attempt to answer the request for information. His actions showed a genuine attempt to perform the function correctly and an attempt to fulfil the duty of care.
There is no evidence to suggest that the documents had been deliberately withheld. Even if that were the case, there is no reason to believe that Dr Donef was responsible for withholding them.
In my view, there is some merit in the Applicant's case to the extent that a narrow approach was taken to his access application and minimal attempt was made to clarify the scope. Further, a significant period of time passed between the initial request for information and the time at which it was ultimately provided. However, I do not agree that this demonstrates bad faith on the part of Dr Donef at either the subjective or objective standard. While it is far from the model of conduct that can be expected under the GIPA Act, it compares favourably with that discussed in O'Hara.
If, in fact, an officer of the Respondent has failed to exercise in good faith a function conferred on them by or under this Act, Dr Donef was not the relevant officer.
It follows, in my view, that the requested referral of the matter pursuant to section 112 of the GIPA Act should not be made.
Order
1. The decision under review is affirmed.
2. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused
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Decision last updated: 16 September 2013
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