Saggers v Environment Protection Authority

[2013] NSWADT 109

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Saggers v Environment Protection Authority [2013] NSWADT 109

Hearing dates:

8, 23 November 2012

Decision date:

20 May 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 - section 112 referral

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Environment Planning & Assessment Act 1979
Protection of the Environment Operations Act 1997

Cases Cited:

Camilleri v Commissioner of NSW Police Force [2012] NSWADT 5
Chant v Gwydir Shire Council [2012] NSWADT 20.
Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195
Crewdson v Central Sydney AHS [2002] NSWCA 345
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
O'Hara v North Sydney Council [2005] NSWADT 100.
Turner v Corrective Services NSW [2013] NSWADT 39

Category:

Principal judgment

Parties:

Colin Saggers (Applicant)
Environment Protection Authority (Respondent)

Representation:

C Saggers (Applicant in person)
R Fox, Environment Protection Authority (Respondent)

File Number(s):

123120

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for external review of the determination by the Environment Protection Authority ("the Respondent") in relation to an access application brought by Mr Saggers ("the Applicant") under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The officer who made the determination was the Respondent's Right to Information/Privacy Officer, Ms Sylvia Lowe.

1. The Applicant's access application sought documents concerning amendment of an Environment Protection Licence ("the licence") issued to Metropolitan Demolitions and Recycling Pty Ltd, St Peters ("MDR"). The licence relates to a concrete recycling plant operated by MDR.

1. The access application requested:

Those entire documents both internal & external held by the agency that will have been created so as to enable the agency to amend section L5.2 MANAGEMENT OF STOCKPILES from reading "The height of any stockpile of processed or unprocessed waste must not exceed the height of the adjacent boundary fences" to read "The height of any stockpile of processed or unprocessed waste must not exceed the height of the Princes Highway boundary fence".

1. The Applicant's request was subsequently clarified in correspondence between him and Ms Lowe. The initial narrow request was broadened by that correspondence to include information created under section 58(6) of the Protection of the Environment Operations Act 1997 ("the POEO Act") in relation to the variation of the licence. In a letter to Ms Lowe he wrote:

on any reading there are no internal working documents that demonstrate that the Five Year Review took into account any factor other than the satisfying of the licencee's concerns that they were operating in breech of their existing licence. There are no documents that relate as to how such a change to suit the licencee's operational desires may or may not effect the surrounding environmental conditions nor are there documents that relate to the licencee's environmental performance requirements as set out in Notice of Review of Environment Protection Licences (copy supplied) which is the very reason a five year review is mandatory to holding such a licence.

1. The Respondent maintains that it has adequately searched for and provided the Applicant with all of the documents requested by his initial access application.

1. A further search of the Respondent's records for information relating to the licence variation in the context of section 58(6) of the POEO Act failed to locate any additional relevant information.

1. Ms Lowe therefore decided under section 58(1)(b) of the GIPA Act that the Respondent does not hold any other information that falls within the scope of the Applicant's request.

Background to the MDR licence amendment

1. I do not understand there to be any dispute about the chronology of event that resulted in the amendment to MDR's licence. Mr Fox, solicitor for the Respondent, provided the following summary:

a.On 18 June 2009 the Respondent advised MDR that it was conducting a 5-year review of the licence. This invited the licensee to propose changes to licence conditions.

b.On 14 July 2009 MDR sent a letter requesting a variation of the relevant licence condition.

c.On 9 February 2010 a formal application was made to vary the licence by MDR. The application was made pursuant to section 58(3) of the POEO Act.

d.On 10 February 2010 the Respondent issued a draft licence variation seeking comment from Metropolitan Demolitions by 19 February 2010.

e.On 24 March 2010, following the notice period, the Respondent issued the final licence variation. Ms Jacqueline Ingham, the Unit Head of the Respondent's Waste Operations Section signed off on the licence variation.

f.On 5 May 2010 Ms Belinda Lake, a Senior Regional Operations Officer in the Respondent's Waste Operations Section, confirmed with MDR that the variation had been issued.

1. The Applicant queries whether there was communication between the Respondent and MDR between July 2009 and February 2010. There is no record of any such communication.

Applicable legislation

1. 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.

1. The issue of what constitutes a sufficient search has been considered in a number of cases. In Camilleri v Commissioner of NSW Police Force [2012] NSWADT 5 Judicial Member N Isenberg stated at paragraphs [10] - [15]:

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'.

1. I adopted that summary in my decisions in Turner v Corrective Services NSW [2013] NSWADT 39 and Chant v Gwydir Shire Council [2012] NSWADT 20.

1. Section 58 of the GIPA Act provides:

58 How applications are decided

(1) An agency decides an access application for government information by:

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

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note: These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(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, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

1. Section 100 of the GIPA Act provides:

100 Review of decision by ADT

A person who is aggrieved by a reviewable decision of an agency may apply to the ADT for a review of the decision (referred to in this Division as "ADT review" ).

Note: A reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of ADT review.

1. Section 105 of the GIPA Act provides:

105 Onus on agency to justify decisions

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

1. Section 112 of the GIPA Act provides for the Tribunal to bring a matter to the attention of the relevant Minister:

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.

1. Section 63 of the Administrative Decisions Tribunal Act 1997 provides that the Tribunal's function on review 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: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. Section 58 of the POEO Act provides for the variation of licences as follows:

58 Variation of licences

(1) The appropriate regulatory authority may vary a licence (including the conditions of a licence).

(2) A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution of a condition, the omission of a condition or the amendment of a condition.

(3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority.

(4) A licence may be varied at any time during its currency, including on its being transferred to another person.

(5) A licence is varied by notice in writing given to the holder of the licence.

(6) If:

(a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and

(b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979 ,

the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

1. Section 78 of the POEO Act provides:

78 Review of licences

(1) The appropriate regulatory authority is required to review each licence at intervals not exceeding 5 years after the issue of the licence.

(2) The appropriate regulatory authority must give public notice of the licences that are to be reviewed as follows:

(a) a notice of the review of each licence is to be published in a newspaper circulating throughout the State,

(b) the notice is to be published not less than 1 month, and not more than 6 months, before the review of the licence is undertaken,

(c) the notice is to specify the activity or work to which the licence relates and the address of the premises (if any) at which it is carried out.

(3) Any failure by the EPA to comply with the requirements of this section to review a licence is to be reported by the EPA to the Board of the EPA, and in the annual report of the EPA, together with a statement of reasons for the failure.

(4) Any failure by a regulatory authority (other than the EPA) to comply with the requirements of this section to review a licence is to be reported to the EPA by that authority.

(4A) The EPA must audit, on an industry wide or regional basis, compliance with licence requirements under this Act and whether such requirements reflect best practice in relation to the matters regulated by the licences.

(5) Any failure to comply with the requirements of this section cannot be the subject of proceedings under this Act.

1. The Applicant has asserted that it is reasonable to expect that other documents that fall within the scope of his request exist but have not been identified or provided to him. The burden falls on the Respondent to establish, the balance of probabilities, that the decision is justified.

The issues

1. The Applicant contends that the searches that the Respondent has undertaken were not sufficient to meet the requirements of section 53(2) of the GIPA Act. He also asserts that the licence review and the licence variation process and record keeping were inadequate. He submits that this indicates that the Respondent has been the subject of Regulatory Capture whereby officers of the Respondent have developed an inappropriate familiarity with those in the industry that are being regulated. He seeks an order that the matter be brought to the attention of the Minister pursuant to section 112 of the GIPA Act.

The Applicant's contentions

1. The Applicant contends that the searches that the Respondent has undertaken were not sufficient to meet the requirements of section 53(2) of the GIPA Act. He argues that there is every reasonable ground to believe that further documents should exist. The Applicant also disputes that the Respondent has acted in good faith.

1. In his submission, the amendment of MDR's licence condition was not a minor matter and therefore detailed documentation would be expected. He submits that a prudent government officer would make sure documents providing reasons for their decisions were made and kept. He submits that it is the very lack of such evidentiary documents that leads one to deduce that additional documents should exist.

1. The Applicant asserted that there had been a major increase in the environmental impact of the activity authorized and controlled by the licence, and that the increase has affected those in close proximity to MDR's concrete recycling plant.

1. The Applicant contends that the existing licence condition had contained MDR's stockpile to the lowest of the surrounding boundary fences and the amendment significantly increased the potential stockpile to that of the highest boundary fence.

1. He contends that section 78 of the POEO Act provides for a licence review process under which the Respondent, as the appropriate regulatory authority, is required to review each licence at intervals not exceeding 5 years after the issue of the licence. He has sought documents to establish whether or not that review took place.

1. In correspondence with Ms Lowe the Applicant queried the absence of internal working documents that demonstrate factors that the five-year review took into account and he requested confirmation that all requested documents had been provided. He asserts that it is clear from the documents that the Respondent has supplied that no such five-year review actually took place.

1. He further contends that section 58 of the POEO Act provides that if the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and a proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environment Planning & Assessment Act 1979 ("the EPA Act") the appropriate regulatory authority is to invite and consider public submissions before it varies the licence. No documents have been produced to indicate that any public consultation took place.

1. The Applicant contends that the Respondent has not produced evidence to support its assertion that the increase in the environmental impact of the activity authorised or controlled by the licence was only minor. He submits that the documents prescribed by section 58 of the POEO Act are not hypothetical but those records have not been disclosed. He says that the fact that there are no records to this variation, whether it was minor or major, is a clear indication of a breach of good faith by the Respondent.

1. He submits that these matters should be brought to the attention of the Minister.

The Respondent's case

1. The Respondent relies on the evidence of a number of its officers.

1. Ms Lowe gave evidence in regard to the search that she undertook in processing the Applicant's request. Ms Lowe identified where the relevant documents were held within the Respondent and liaised with Ms Lake, in the Respondent's Waste Operations Section in relation to the search for the documents. The search process included:

a.conducting electronic searches of the Respondent's several electronic databases and the hard drive on which documents would be recorded and on which it would be expected that reasons for decision and assessments would be found if they existed;

b.conducting searches of the paper files to verify electronic record searches and identify any documents not electronically recorded;

c.searching outside the timeframes in which documents would be expected;

d.asking staff to review email accounts to identify any documents that were not recorded electronically or on the paper files;

e.requesting all staff who may have had some involvement, not just those indicated by reference to the relevant documents identified, to conduct a search.

1. Ms Lake gave evidence that she is familiar with the Respondent's several record keeping and document management databases. At Ms Ingham's request Ms Lake reviewed the scope and estimated the time required for the Applicant's access application. She subsequently conducted a comprehensive search and collated all records and information that may fall within the scope of the Applicant's request. She gave evidence of the steps that she took to locate that information.

1. She then collated the documents identified in her searches and provided a copy of the documents found to Ms Lowe. She then explained the documents to Ms Lowe to assist her determine what documents were caught by the Applicant's access application.

1. Ms Lake was aware that the Applicant had made other informal access applications to the Respondent. However, she was unaware of the interaction between the present GIPA Act access application and the earlier access applications. She was not aware that earlier access applications had not been completed.

1. Ms Lake's evidence was that she had visited and was familiar with the MDR site. She gave evidence in regard to the Respondent's complaint handling process. A complaint may or may not warrant an inspection, depending on the nature of the complaint. She had not made any official visit to the MDR site in relation to the licence variation application. She said that she understood the variation to be of a technical nature and therefore would not expect that an inspection of the site would be required.

1. Mr Trevor Wilson, an Operations Officer in the Respondent's Waste Operations Section, gave evidence of the process undertaken in dealing with the MDR licence variation. A licence variation application is generally overseen and assessed by an officer but Mr Wilson did not oversee the MDR licence variation. His role was to ensure the details of the licence holder were current. He stated that a desktop review was undertaken and the public were not notified. He did not recall seeing any submissions in relation to the variation request. He conceded that further record keeping might be desirable.

1. He based his assessment of the need for public consultation on his experience. He was of the view that the variation was minor and would not result in more pollution. His evidence was that the original licence condition was difficult to enforce because the boundary fences were of different heights. He said that the variation was to make it clear which height was applicable. He said that the variation did not affect the capacity of MDR's stockpile.

1. Ms Ingham gave evidence in regard to the Respondent's procedures for administering a variation to a licence. She stated that she is responsible for determining whether a variation is minor. She does that in consultation with the officers who have dealt with the application and considers their advice before making the decision. She stated that the extent of record keeping in relation to a particular variation is dependent on the complexity of the matter. She regarded the MDR licence variation as minor and therefore was unconcerned that detailed records had not been maintained in relation to the approval. However she accepted that the Respondent's record keeping could be improved.

Submissions

1. The Respondent contends that section 58(3) of the POEO Act provides that the licence can be varied on application of the licence holder; and that the POEO Act does not require reasons to be given in regard to the variation of a licence. Mr Fox submits that the variation of MDR's licence condition was clearly a minor alteration given:

i.MDR's original request for a variation of the licence was made on 1 page and attaching 3 photographs;

ii.the licence variation application did not attach any other documents other than the original request for variation; and

iii.as a matter of merit, the licence variation application clarified uncertainty in condition L5.2, given that boundary fences at the property were of differing heights.

1. The Respondent contends that there are no reasonable grounds to believe that other documents that fall within the scope of the Applicant's request exist given:

a.there is no evidence on the face of the documents provided from which it could reasonably be inferred that additional documents exist which were not provided; and

b.there is no statutory requirement under the POEO Act to create a document recording the assessment and/or providing reasons for the decision.

1. The Respondent relies on the decision in Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195 at [69] in support of its submission that it is not enough for an Applicant to merely assert non-compliance of section 53(2) of the GIPA Act on the basis of a general distrust of the agency.

1. Mr Fox submitted that the evidence records the steps taken in good faith by the Respondent and that the Tribunal should find that the search was sufficient to comply with the requirements of section 53(2) of the GIPA Act. He submits that there is an absence of any evidence, or reasonable inference, to the contrary. Further, he submits that even if it is found that any weaknesses or failures in the record keeping process are identified it does not necessarily lead to a conclusion that the search has not been reasonable, sufficient or adequate: O'Hara v North Sydney Council [2005] NSWADT 100.

1. The Respondent further contends that the matters raised by the Applicant about the adequacy of the licence variation decision-making process are not reasonable grounds to believe that additional documents relevant to his access application exist. The Respondent accepts that the evidence shows that the decision-making process was not subject to the level of assessment sought by the Applicant. However, the Respondent submits that this level of assessment does not reflect the circumstances in which the licence variation application arose or the requirements of the POEO Act.

1. The Respondent considers that the licence variation process and record keeping was adequate in the circumstances and that, consistent with the minor nature of the application to vary the licence, it was processed promptly.

1. Mr Fox submitted that even if the Respondent was wrong, and that the licence was in fact a major variation, which required a number of hypothetical documents to be created, this would not demonstrate bad faith of itself, as there is no evidence of any intention to mislead.

1. The Respondent further submits that In any event the Tribunal does not have jurisdiction to review the making of the licence variation decision: Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24].

Consideration

1. The primary issue for determination concerns the question of whether the steps taken by the Respondent to locate documents that fall within the scope of the Applicant's request were sufficient to comply with the requirements of section 53(2) of the GIPA Act.

1. In my view, the failure to identify further documents is a reflection of the Respondent's licensing and record keeping processes and not a reflection of the searches undertaken.

1. There is insufficient evidence to support the Applicant's assertion with respect to regulatory capture. However, I accept that there is some merit in the Applicant's argument that documents should exist to allow scrutiny of the licence variation decision-making process. Documents that one might reasonably expect should exist have not been identified by the search that was undertaken. However, I am satisfied on the evidence that has been presented that those documents do not exist.

1. In my view, the search that was undertaken was reasonable, sufficient and adequate. It is improbable that any further search would locate further documents that fall within the scope of the Applicant's request.

1. What constitutes a sufficient search will vary with the circumstances. In the circumstances of this matter, I am satisfied that the Respondent's search has been adequate. No purpose would be served by requiring the Respondent to do any more searches. The decision under review is therefore affirmed.

1. I agree with the Respondent's submission that the Tribunal does not have jurisdiction to review the making of the licence variation decision. Whether or not the Respondent's decision-making process or record keeping was inadequate is not a matter for determination in this application.

1. The Applicant has alleged bad faith on the part of the Respondent and has requested referral of the matter pursuant to section 112 of the GIPA Act. 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.

1. The Applicant's assertion of breach of good faith by the Respondent concerns the record keeping in relation to the review and variation of MDR's licence. In my view those matters do not relate to a function conferred or imposed on an officer by or under the GIPA Act. Even if I were to accept that there is a deficiency in those processes, or if I were to agree that the variation to the licence was not minor, it would not bring the matter within the scope of section 112 of the GIPA Act.

1. The officer of the Respondent who has a function conferred or imposed by or under the GIPA Act is Ms Lowe. It is possibly arguable that Ms Lake has also adopted those functions. I see no reason to criticise the manner in which either Ms Lowe or Ms Lake have undertaken their functions under the GIPA Act. It cannot be said that they have failed to exercise in good faith a function conferred or imposed on them by or under the GIPA Act.

1. It follows that I do not agree that the requested referral of the matter pursuant to section 112 of the GIPA Act should 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: 21 May 2013