Shoebridge v The Office of the Minister for Police and Emergency Services

[2014] NSWCATAD 189

Civil and Administrative Tribunal

New South Wales

Case Title:	Shoebridge v The Office of the Minister for Police and Emergency Services
Medium Neutral Citation:	[2014] NSWCATAD 189
Hearing Date(s):	16 July 2014, 11 August 2014, 25 August 2014, 22 September 2014
Decision Date:	06 November 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	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 -whether bad faith - section 112 referral - power to make referral in relation to a person employed by a Minister
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	Saggers v Environment Protection Authority [2013] NSWADT 204
Category:	Principal judgment
Parties:	David Shoebridge (Applicant) The Office of the Minister for Police and Emergency Services (Respondent)
Representation
- Solicitors:	D Shoebridge (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	1410021

REASONS FOR DECISION

1. The Applicant has applied to the Tribunal for review of a determination by the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The determination was in relation to an access application by the Applicant in which he sought information held by the Respondent. The access application was in the following terms:

   All communications between the Minister for Police and Emergency Services and Metgasco Limited regarding the police response to protests at the Metgasgo facilities in northern NSW on 7 January 2013. Please see the attached document obtained by a previous GIPA for further information regarding the request.

2. The document that was attached was an undated letter from Geoff Provest MP, the Parliamentary Secretary for Police and emergency Services, to Mr Peter J Henderson, Managing Director and CEO, Metgasco Limited. The letter commenced:

   Thank you for your letters to the Minister for Police and Emergency Services, the Hon Michael Gallacher MLC, regarding the police response to protests at Metgasco facilities in northern NSW. The Minister has asked me to reply on his behalf. ...

3. Mr Thomas Gallagher, Policy Advisor to Mr Gallacher ("the Minister"), determined the access application on about 23 December 2013. In his reasons for his determination Mr Gallagher wrote:

   A search of the records has been undertaken to identify documents falling within the scope of your application.
   All electronic files and hardcopy records from staff within the office of the Minister for Police and Emergency Services and the Ministry for Police, and I have been advised that no further government information falling within the scope of your application has been identified. I have therefore decided under section 59(1)(b) of the GIPA Act that the information sought is not held by the Department.

4. The Applicant contends that Mr Gallagher's decision was not credible given the opening paragraph of Mr Provest's letter. He argued that the access application unambiguously was seeking, inter alia, the letters to which Mr Provest had responded. He has applied to this Tribunal for external review of the determination. He sought the following orders:

   ·an order for the production of the relevant letters, and all other documents covered by the application.

   ·a finding that the Respondent's failure to produce was wilful and in conscious breach of its obligations under the GIPA Act.

Background

1. The Applicant provided the following background as context for his access application:

   "In early January 2014 there were protests at a coal seam gas drilling operation at Glenugie in Northern NSW.
   Police commenced prosecutions against certain of the protestors. Those prosecutions were later withdrawn by police and replaced with novel, and contentious, charges which were dismissed by the Local Court on the basis they were an abuse of process.
   It is understood that the police commenced the contentious prosecutions following pressure from, inter alia, Metgasco Limited.
   On 8 November 2013 this office lodged a GIPA application with the Respondent seeking the relevant documents. ...
   On 12 December 2013 the GIPA the subject of this application was lodged with the Respondent. ...
   After receipt of the decision of 24 December 2013 this office sought to get a sensible and rational response to the GIPA from the Respondent. To that end we spoke to the Minister's office. It was explained to the Minister's office that if they have responded to letters from Metgasco Limited then they must have letters from Metgasco Limited and it was those letters that we wanted produced. The Minister's office agreed and promised to produce the documents.
   On 6 January 2014 the conversation above was repeated with the Minister's office.
   On 8 January 2014 an email was sent to the Minister's office confirming the above. ...
   Following receipt of the email a representative from the Respondent called and said that no further documents would be produced without a further GIPA application."

2. The Respondent contends that Mr Gallagher's determination was correct. It has nevertheless provided the Applicant with a number of additional documents which are annexed to the statement of Mr Sahil Prasad. The Respondent considers that their provision to the Applicant is consistent with the objects of the GIPA Act. The documents annexed to Mr Prasad's statement were:

   (a)a letter from Mr Peter J Henderson, Managing Director and CEO, Metgasco Limited, to the Honourable Chris Hartcher, Minister for Resources and Energy, dated 19 December 2013;

   (b)a letter from Mr Peter Henderson to the Honourable Chris Hartcher and other Ministers, dated 23 January 2014;

   (c)a letter from Mr Geoff Provest, Parliamentary Secretary for Police and Emergency Services, to Mr Peter Henderson, dated 8 February 2013;

   (d)a letter from Mr Peter Henderson to the Honourable Chris Hartcher and other Ministers, dated 6 February 2013; and

   (e)a letter from Mr Geoff Provest to Mr Peter Henderson, dated 6 March 2013.

3. The Applicant no longer contends that there are reasonable grounds for believing that further documents held by the Respondent would fall within the scope of the access application.

The Hearing

1. During the course of the hearing, it became apparent that the primary focus of the Applicant's case was whether a referral to the Minister should be made under section 112 of the GIPA Act regarding the actions of officers involved in determining the access application in December 2013. The relevant officers are said to be Mr Gallagher, Mr John McGowan, Senior Policy Advisor to the Minister, and Mr Brad Scutella, Chief of Staff to the Minister. None of these officers are currently employed by the Respondent.

Mr Gallagher's evidence

1. Mr Gallagher provided a statement in the proceedings and was also cross examined. It was apparent from his evidence that he had commenced employment with the respondent shortly before the access application was lodged and had not previously determined any applications under the GIPA Act.

2. He had no clear recollection in regard to most aspects of the dealings with the access application. To the best of his recollection he received the access application from the receptionist and discussed it with the Chief of Staff. He understood that 'key word' searches were undertaken to locate information that might be within the scope of the access application but he did not undertake the searches. He carried out clerical processes but did no more than flick through the documents to see if they were relevant to the access application, and then passed the matter to Mr McGowan to make the determination. He recalled going to Mr McGowan with a bundle of approximately 10 documents. He thought that the documents that were in the bundle appeared to be relevant to the access application. He did not see Mr McGowan consider the documents.

3. Mr Gallagher said that it was not his role to determine whether or not the documents fell within the scope of the access application. He agreed that he knew that the Applicant wanted letters from Metgasco and other communications between the Respondent and Metgasco about the 7 January 2013 incident.

4. He said that Mr McGowan was the decision maker and the results were reviewed by the Chief of Staff. He did not speak with the Chief of Staff about what was relevant to the access application but he said that the Chief of Staff signed off on the determination.

5. At the conclusion of Mr Gallagher's evidence I indicated that I would not be prepared to make a referral to the Minister under section 112 of the GIPA Act regarding the actions of Mr Gallagher. The Applicant then requested that Mr McGowan and Mr Scutella be available for cross-examination with a view to a section 112 referral. The hearing was adjourned to allow that to occur.

6. Both Mr McGowan and Mr Scutella subsequently attended and were cross-examined. Each was separately represented.

Mr McGowan's evidence

1. Mr McGowan stated that when considering the access application he referred primarily to the text of the request and that he did not believe that the attached letter from Mr Provest to Mr Henderson was part of the application. He agreed that he knew that the access application was seeking letters. He assumed that only documents dated after 7 January 2013 would have been within the scope of the request. He considered that documents received or sent before the protests had not occurred would not have been within the scope.

2. Mr McGowan recalled that a search was undertaken using the search term 'Metgasco' and that an electronic search was undertaken of the TRIM document management system and the general email accounts. He said that the electronic search would not have revealed documents if the office only held in hard copy and it had not been uploaded to the TRIM system at the time. He stated that he discussed the access application with Mr Gallagher and a Departmental Liaison Officer named Sabrina who had responsibility for correspondence received by the Respondent.

3. He agreed that Mr Gallagher had given him documents. He thought it would have been less than 12 documents and he did not have a specific recollection of which documents would have been included. He was able to say with some certainty that at the time he considered the access application he had not seen some of the documents that were provided by Mr Prasad.

4. Mr McGowan denied that he determined not to produce documents that were within the scope of the access application and that were included in the bundle that Mr Gallagher had given him. He did not agree that the documents were within the scope of the access application.

5. Mr McGowan said that he spoke to Mr Scutella, the Chief of Staff, after he had flicked through the documents that Mr Gallagher had given him. Mr Scutella asked him to have a look and to see what he thought about them but did not give him instructions on what to provide. He did not recall any discussion about who had made the access application. He took less than an hour to consider the access application and spoke to Mr Gallagher and the Departmental Liaison Officer about it. He said that he wanted the Departmental Liaison Officer's opinion about whether any of the documents in the bundle were 'the letter' from Metgasco to the Minister. She did not provide any specific response. He then had a further conversation with Mr Scutella in which he brought one of the documents to Mr Scutella's attention. They agree that none of the documents were within the scope of the access application.

Mr Scutella's evidence

1. Mr Scutella stated that he was Mr Gallagher's supervisor at the time of the access application. He said that his previous experience in dealing with GIPA applications was limited to 6 or 7 applications. His only training in regard to the GIPA Act was on the job training. He understood the object of the GIPA Act is the disclosure of documents that are within the scope of the access application.

2. Mr Scutella stated that the Respondent received the application to the Tribunal in early May 2014 but that he did not see it until June 2014. He was unable to explain the delay. At the time Mr Prasad released the documents Mr Scutella was Mr Prasad's supervisor. He understood the application to the Tribunal was requesting all the documents that Mr Prasad provided.

3. Mr Scutella agreed that he had seen the access application and the attached letter from Mr Provest to Mr Henderson but denied that he knew that the Applicant was seeking the letters referred to in the attached letter. He didn't ignore the attached letter but thought it was merely for information.

4. He said that he gave instructions for a keyword search to be undertaken of TRIM and the email accounts, for documents to be downloaded and given to Mr Gallagher. He did not recall whether he had the documents provided by Mr Prasad when he processed the access application. He accepted that it was likely that he had them at the time.

5. He said that he would have instructed staff to download relevant documents and for Mr Gallagher to assess them. He may have asked Mr Gallagher to discuss the matter with Mr McGowan so that Mr McGowan was aware of the matter. He would have reviewed the documents to determine whether they were within scope and conferred with Mr Gallagher. He would have made the determination after conferring with Mr Gallagher.

6. He asked Mr Gallagher to separate the documents into two bundles - those within scope and those out of scope. However, there was only one bundle as nothing was within scope. He then asked Mr McGowan to check what Mr Gallagher had done and he had a conversation with Mr McGowan to get his views. Mr McGowan may have indicated that he didn't think any of the documents were within scope. He could not recall whether Mr McGowan had brought a single document to his attention but agree that he may have done so. Mr Scutella said that while he listened to the views of Mr Gallagher and Mr McGowan, he made the final assessment.

7. He considered that documents that predated 7 January 2013 would not have been within the scope of the access application. He did not consider that the documents provided by Mr Prasad were within scope.

8. He accepted that as a long standing police officer he was familiar with the planning involved in a major police response. He accepted that the police involvement in the 7 January 2013 incident would have been planned in advance. However, he denied that documents received or sent before the 7 January 2013 incident would have been within the scope of the request because they did not refer to the police response. He also considered that letters written after the 7 January 2013 incident that did not make a specific reference to the incident would not be within scope. Similarly, he did not consider that a commentary on the police response to the incident was within scope. He denied that he had looked for an excuse to not provide access to the documents.

Consideration

1. In assessing an access application an agency is entitled to rely on the terms of the application. The agency is not required to guess what the applicant had intended.

2. In my view, the terms of the access application are clear. The access application requested communications between the Minister and Metgasgo "regarding" the police response to protests on 7 January 2013. The expression ""regarding" is a broad one. The Macquarie Dictionary Online defines the word "regarding" as a preposition meaning:

   "with regard to; respecting; concerning"

3. The word "concerning" is defined as a preposition meaning

   "relating to; regarding; about."

4. In my view there is no reason to give the access application a narrow construction. By using the word "regarding" the Applicant has intended to express a wide connection between the "communications" and "the police response to protests at the Metgasgo facilities in northern NSW on 7 January 2013".

5. The Application specifically referred the Respondent to the attached letter from Mr Provest to Mr Henderson. In my view that reference was to provide a context for the request and the two should have been read together.

6. Further, in my view there is no reason to construe the access application as only requesting communications made after the protests on 7 January 2013. Any communications prior to 7 January 2013 that related to the proposed police response would be within the scope of the access application. Similarly, any communications after 7 January 2013 that commented on the police response, whether positively or negatively, would have been caught by the access application.

7. I have considered the access application and each of the documents that Mr Prasad provided. In my view each of those documents falls within the scope of the access application. The fact that a document merely makes passing reference to the police response does not alter its character as a communication regarding the police response to the protests.

8. There is no suggestion that there are public interest considerations against disclosure of any of the documents. It follows, in my view that the documents should have been provided in response to the access application.

9. As noted above, the Applicant seeks a referral to the Minister under section 112 of the GIPA Act regarding the actions of Mr McGowan and Mr Scutella. The parties are in general agreement that the test for good faith under section 112 is a subjective one. See discussion in Saggers v Environment Protection Authority [2013] NSWADT 204.

10. While I agree with that view, I also agree that the requirement for good faith cannot be satisfied unless there was a real attempt to answer the request for information at least by recourse to the available materials.

11. It is clear from the evidence that neither Mr McGowan nor Mr Scutella gave serious consideration to the attached letter from Mr Provest to Mr Henderson. If they had done so it would have been apparent that the letter referred to "letters to the Minister for Police and Emergency Services" and it would have been equally apparent that, as a minimum, the Applicant was seeking those letters.

12. It is not in dispute that the key word search that was undertaken revealed a number of documents. In my view it was incumbent upon the Respondent to read those documents to ascertain whether they fell within the scope of the access application.

13. It seems that the documents were given no more than a cursory review by reference to the date 7 January 2013. If the date was not specifically mentioned the document was regarded as falling outside the scope of the access application. In my view, more was required. It is clear to me that had the documents been read carefully, in reference to the whole of the access application properly construed, then a different decision would have been reached.

14. I note that on several occasions Mr Scutella referred to the fact that he was dealing with many issues unrelated to the access application. This may provide an explanation for the lack of attention given to the application.

15. I agree with the Applicant that the GIPA Act does not allow an agency to simply turn a blind eye to the legislative requirements. It is clear from section 3 of the GIPA Act that the objects of the Act include encouraging the proactive public release of government information by agencies, and giving members of the public an enforceable right to access government information. Section 3(2)(b) states that it is the intention of Parliament 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. Those objects cannot be met if an officer with responsibility in relation to the determination of an access application does not give careful consideration to the request and whether information falls within the scope of that request.

1. Counsel for Mr McGowan has asked for the application to be dismissed in regard to Mr McGowan on the basis that the evidence shows that Mr Scutella made the determination in regard to the access application. Counsel for Mr Scutella submitted that there is no evidence to support a finding of subjective bad faith.

2. In the circumstances of this matter, Mr Gallagher, Mr McGowan and Mr Scutella each had responsibility in relation to the determination of an access application. In my view, there was an obligation on each of them to perform their task in good faith. The obligation does not merely reside with the officer who makes the final determination.

Is there power to make a referral under section 112 in this matter?

1. Mr McDonnell has submitted that the Tribunal cannot make the referral sought in this matter. Section 112 of the GIPA Act is in the following terms:

   112 Report on improper conduct
   If NCAT is of the opinion as a result of an NCAT administrative 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, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

2. Mr McDonnell submitted that the Tribunal can only make the referral where it is of the opinion that an "officer of an agency" has failed to exercise a function in good faith. He also referred to the definition of "agency" in section 4 of the GIPA Act which provides:

   "agency" means any of the following:
   ...
   (b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013)

3. In his submission, pursuant to section 4(b), Mr McGowan and Mr Scutella, as persons employed by a Minister, fall within the definition of an "agency". Accordingly, they cannot be both an "agency" and an "officer of an agency".

4. In contrast, the Applicant submitted that if the construction urged by Mr McDonnell is accepted, then there is a significant gap in the oversight of the Act. He submitted that Mr Gallacher is not the current Minister and that the proper construction of the GIPA Act is that a report should go to the current Minister. He further submitted that a referral would assist in the administration of the GIPA Act.

5. I agree with Mr McDonnell's submission. In my view, the provisions of section 112 cannot apply in relation to a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013. It follows that the application for a referral under section 112 of the GIPA Act must fail.

6. I agree with the Applicant that this decision exposes a significant gap in the oversight of the GIPA Act.

Order

(1)The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.