Stanley v Roads and Maritime Services (NSW)
[2014] NSWCATAD 123
•29 August 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Stanley v Roads and Maritime Services [2014] NSWCATAD 123 Hearing dates: On the papers Decision date: 29 August 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Prof G D Walker, Senior Member Decision: Decision under review affirmed in part and set aside in part as ordered in paragraph 79 below.
Catchwords: GOVERNMENT INFORMATION - PUBLIC ACCESS -reasonable search Legislation Cited: Administrative Decisions Review act 1997; Civil and Administrative Tribunal Act 1997--Government Information (Public Access) Act 2009 Cases Cited: Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52; Camilleri v Premier's Department [2006] NSWADT 137; Curtin v University of New South Wales (No 2) [2006] NSWADT 56; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179, (1979) 46 FLR 409; Miriani v Commissioner of Police, New South Wales Police Service [2005] NSWADT 187; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213; Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80; Shepherd v Department of Housing, Local Government and Planning [1994] QAR 464. Category: Principal judgment Parties: Philip Stanley (Applicant)
Roads and Maritime Services (Respondent)Representation: P Stanley (Applicant in person)
Crown Solicitor's Office (Respondent)
File Number(s): 1410068
reasons for decision
The applicant Mr Philip Stanley applied to this tribunal on 12 February 2014 for review of a decision by Roads and Maritime Services (RMS) dated 30 January 2014 on the ground that "RMS has not fully complied with my GIPA requests of 26 Nov 2014 [sic] GIPA14G1172 and 27 Nov GIPA G 141185 - notice of 30/1/14 and emails attached."
The respondent's decision in question was the decision to release to the applicant a CD containing 94 pages of documents, which the respondent considered to be a release of the documents requested by the applicant in full. The review application appears to be based on s 80(e) of the GIPA Act, which declares that a decision "that government information is not held by the agency" is a decision to which the Act applies and is a proper subject for a review application. The respondent accepts that, as the applicant contends that RMS holds further information covered by his application, in addition to that which was released to him, a determination under s 80(e) was by implication made.
An attachment to the application explains that Mr Stanley's reason for applying for the information is the RMS proposal to narrow the westbound lanes of Fullers Road, Chatswood, rather than instal a fixed speed camera. He believes that the narrowing proposal greatly threatens the safety of his daughter and her children when she reverses out of her Fullers Road driveway into a busy traffic flow. He also claims to represent the interests of 13 other affected residents.
RMS officers have made decisions in relation to four previous applications by Mr Stanley between March and July 2013. The applicant claims that RMS has been tardy with its responses, has not supplied all of the information requested and has on several occasions refused to supply specific items. The attachment to his application further states that the purpose of the application is to obtain information that has been "deliberately withheld from" him by RMS in relation to his two GIPA requests 14G1172 and 14G1185 of 26 and 27 November 2014 (scil. 2013). He is particularly interested in obtaining information concerning a meeting held on 1 November 2014 (scil. 2013).
The 26 November 2013 application seeks the following information:
All correspondence, emails, minutes of meetings and any other written and/or verbal communications made between the Traffic Branch and the Road Safety Centre concerning the following:
1. Fullers Road Chatswood RMS proposal for narrowing the westwards travelling side to one lane.
2. The assessment of the possibility of speed camera(s) as a means of reducing speeding and accidents, together with the analysis of the priority and any other relevant matters considered.
3. Any other matters raised and/ or considered in not approving of a high priority for speed camera(s) on Fullers Road with or in lieu of RMS Road narrowing proposal.
The 27 November 2013 application sought the following information:
All correspondence, emails, minutes of meetings and any other communications written and/ or verbal, and quantitative data relevant to the decision to not further consider a Speed camera for Fullers Road that has been made between the Traffic Branch and the Road Safety Centre concerning the following matters, over the period 1/1/2012 and 22/11/2013:
1. In connection with the Fullers Road Chatswood RMS proposal for narrowing the westwards travelling side to one lane and the quantitative data used in this decision, including all traffic data used in the Traffic Modelling, the software used, the side streets entries and exits considered, as well as the major flow through Fullers Road, the working papers and the final report, together with the name of the person carrying out the Traffic Modelling and his/ her qualifications - as mentioned by J Begley RMS at a meeting of 21/11/13 with P Stanley, and believed to be carried out in the period March - November 2013,
2. The qualitative and quantitative data used in the assessment of the exclusion of speed camera(s) as a means of reducing speed and accidents, together with the written analysis of the decision, and any other relevant matters considered;
3. The specific accident data are used in the decision that road narrowing would be necessary to control speeding on the westwards travelling side of Fullers Road, including date, time, nearest side street, severity of accident, number of cars involved and car(s) at fault and on which side of Fullers Road that the accident originated. In particular, details, as above, of the six head-on accidents which RMS M/S Johnson stated had occurred and, reference [sic] at the meeting of 21/11/13 with her;
4. Any other matters relevant and/or raised and/or considered in NOT approving of a speed camera(s) on Fullers Road, with or in lieu of the RMS road narrowing proposal.
The issue. The only issue in this application is whether the respondent has discharged its obligation to "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" within the meaning of s 53 of the GIPA Act.
The purposes and objectives of the GIPA Act are set out in s 3:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
"Government information" is defined broadly in s 4 as "information contained in a record held by an agency". "Agency" is also defined in that section as including "a public authority", a phrase which in turn is defined in cl 2 of schedule 4. RMS is a corporation constituted under s 46 of the Transport Administration Act 1998 and the respondent does not dispute that it is therefore a public authority within cl 2 and an "agency" for the purposes of s 4.
The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 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: s 9.
The Act establishes, subject to limited exceptions, a principle that there is a public interest in favour of disclosure: s 12(1). Section 12(2) stipulates that the public interest considerations in favour of disclosure are not limited.
An agency's obligation to search for information that is the subject of a request is set out in s 53:
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.
Persons aggrieved by a reviewable decision (including a decision under s 80(e) as in this case) may under s 100 seek a review by this tribunal. Section 100, when read with s 9 of the Administrative Decisions Review Act 1997 (ADR Act), confers jurisdiction on the tribunal to review such decisions under the Act as are reviewable.
The tribunal's function on review under s 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law (meaning legislation or common law). It has long been established that in considering an application for review the tribunal is not limited to having 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. The tribunal is therefore able to take account of material that is now available but was not available at the time the decision under review was made.
When any reviewable decision under the GIPA Act is being reviewed, the burden of justifying the decision is placed by s 105 on the agency in question. In this case 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 reasonable and sufficient.
The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning (1994) QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (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.
That decision has been affirmed in a number of later decisions of the tribunal. See, for example, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, which reviews a number of the authorities on the point.
The tribunal must form a view as to whether there are reasonable grounds for believing that further information of the kind requested exists that has not so far been supplied and, if so, whether in all the circumstances the respondent has made reasonable search efforts to locate it.
Under s 112 of the GIPA Act, the tribunal may, if it is of the opinion that an agency officer has failed to exercise in good faith a function under the Act, bring the matter to the attention of the appropriate minister. The applicant seeks to invoke that provision.
The evidence
The respondent presented as its main evidence an affidavit by Jarrod Whitbourn dated 15 April 2014 and a signed statement by Hilary Johnson dated 14 April 2013. In answer to that material Mr Stanley filed a detailed document setting out point- by- point criticisms of the statements made in those two documents, together with allegations of fact and submissions. As the parties agreed that the application should be decided on the papers and there was thus no opportunity for cross-examination, it may be convenient to summarize the affidavit and the statement and interpolate the applicant's responses to each point.
The affidavit by Mr Whitbourn and the applicant's comments
Mr Whitbourn is the manager, Information and Privacy, at Transport for New South Wales (TfNSW) and in that capacity made decisions about the applicant's access applications of 26 and 27 November 2013. His affidavit begins by noting the four previous decisions in respect of access applications by Mr Stanley.
The applicant took exception to the references to the earlier applications and expressed concern they could be laying the foundation for a restraint order under s 110 or a refusal to deal with an application considered vexatious under s 109 of the Act. He submitted that his earlier applications, which he described in detail, had been justified and had produced evidence of offences by RMS staff under s 112 and had led to the uncovering of a "secret alliance" between RMS and the Centre for Road Safety (CRS) placing an embargo on fixed speed cameras since 2006.
Mr Whitbourn then described how he had asked the senior access and compliance officer at the Information and Privacy Unit of RMS to make appropriate enquiries in the areas where such information would be most likely to be held and to conduct proper searches.
The applicant noted that Ms K Russell and Mr John Begley were contacted in the course of the search and contended that as they were closely connected with the project, their emails should have been supplied, but were not. As regards certain estimates by Mr Whitbourn that the officers had spent some 19 hours searching for the material, in addition to 80 hours in complying with the four previous requests, he said that indicated a serious deficiency in the search capability or indexing methodology, or both, of the RMS computerized records system.
The affidavit then outlines the RMS records management system and the methods whereby they could be searched. In view of the time that was being taken, RMS asked the applicant to agree to an extension of time to deal with the applications, but the applicant declined.
Mr Stanley disagreed that a search for emails could take any great amount of time and opined that it showed a serious defect in RMS record-keeping, given that computers were introduced into the New South Wales government departments 51 years previously.
After the decision on the applications had been sent to Mr Stanley, the latter sent an email claiming that his applications had not been fully complied with. Mr Whitbourn thereupon requested further enquiries, specifically to ascertain whether there was any record of the 1 November 2013 meeting. The applicant did not dispute that.
As a result of those further enquiries, Ms Johnson advised that she had "no formal notes of the meeting as it was a quick five-minute conversation with CRS reps. My recollection was that: We discussed the speed survey results (provided), the crash data (provided) and the proposed line marking works (provided). It was agreed verbally that speeds had slowed, crashes were down and the proposed line marking schemes should be progressed. This is what has been actioned by RMS".
The applicant commented that the procedure adopted appeared to be highly irregular by normal commercial standards where substantial expenditure was involved and argued that it was "time for a management and governance review by the Auditor-General". He did not dispute that Ms Johnson had said no records were held of the 1 November meeting or that Mr Whitbourn had informed him that RMS held no further information that would fall within the scope of the application.
The affidavit concludes by a saying that on the information provided it did not seem unusual that there were no documents created at, or as a result of, the 1 November meeting and there was no reason to believe that all of the relevant documentation had not been received. Mr Whitbourn estimated that RMS spent approximately 30 hours in searching for documents, corresponding with the applicant and assessing and determining the application. Nevertheless, as in the case of the earlier applications, Mr Stanley was not asked to pay a processing charge.
The applicant commented that the absence of documents indicated a culture where serious decisions were made with no documentation: "This culture is rife with fraud possibilities and represents a serious non-compliance with the Audit Act", he said.
The statement by Ms Johnson and the applicant's comments
Ms Johnson has been the Network and Safety manager, Sydney Region, at RMS since October 2013 and in that capacity is responsible for the assessment and authorization of speed limits on all roads in Sydney, audit and crash assessments, road safety behaviour, guidance and delineation, assessment of the road network for enforcement cameras and traffic management and investigations. Fullers Road had been an ongoing issue for about 10 years, various measures having been implemented to improve safety, which had resulted in a significant improvement, as evidenced by a 35 percent reduction in crash numbers. There were still crash clusters along the road, however. Ms Johnson had been directly and heavily involved in the relevant studies, analysis, assessments and consultations. The current Fullers Road project began in 2011, although most of the recent activity commenced in August 2013 and finished in December 2013 with the installation and monitoring of the scheme.
The applicant described the history of traffic modelling studies that had been implemented over several years and said that he had been alarmed by their recommendations to the extent of commissioning at his own expense a qualified road traffic engineering consultant level 3 road safety auditor to investigate the RMS proposal and provide him with a report (the McLaren report), which was delivered to him in December 2012 and a copy sent to RMS in January 2013. The report concluded that a speed camera would be the best solution. Mr Stanley criticized the RMS survey methodology and the agency's opposition to that option, indeed, as he saw it, its refusal seriously to consider it, and its reliance on "doubtful policy". He viewed the RMS community consultation as a sham with a foregone conclusion, in the face of overwhelming local support for a speed camera.
Ms Johnson's statement then relates how RMS undertook further assessments of the proposal, including an independent safety review by Parsons Brinkerhoff in April 2013, which found the proposal had a number of safety benefits and recommended a number of small modifications to the scheme.
The applicant countered that RMS was forced to carry out an independent assessment as a result of the McLaren report. The consultant chosen by RMS had carried out 107 consultancies for RMS over the previous five years and was of doubtful independence. Its report did not mention the safety concerns of residents.
The statement then said that a section of Fullers Road had been resurfaced in order to prevent wet weather crashes and also presented an opportunity to implement the line marking scheme that had been developed through a community engagement process. Mr Stanley, however, said the reference to community feedback was untrue and a petition of 86 signatures in January 2013 mainly favoured a speed camera rather than narrowing.
The benefit-cost ratio of three resurfacing and narrowing options had shown that the proposal to resurface and limit the westbound traffic to one lane, with painted medians and right turn bays, carried the greatest road safety benefit and had the further advantage of slowing traffic, Ms Johnson said.
Mobile speed cameras were considered, but safety issues precluded that option. Nor did the crash history warrant a red light camera. The Centre for Road Safety at TfNSW had considered a fixed speed camera, but in view of the crash history did not consider that section of Fullers road as a high priority site for a camera. The applicant criticized the methodology used in the RMS analyses and decision making and considered that that a fixed speed camera had not been seriously considered by RMS.
The respondent committed to working with the police to strengthen speed limit enforcement on Fullers road, and held consultations with key interested parties, including the council, the local member of parliament and the Centre for Road safety, at the meeting on 1 November. Ms Johnson said that as the applicant and his daughter Mrs McGlinchey had raised a number of concerns about the narrowing proposal on 19 November 2013, Ms Johnson spoke to them personally about the options considered and why the narrowing proposal was considered the best option to improve safety. Following that discussion, it was decided to narrow the median on Fullers Road and indent the line marking from the edge of the road, so that residents would have further space to reverse out of their driveways and see oncoming traffic. There had been community consultation and a media release, together with a letterbox drop and a door-knocking program to discuss the issues in November 2013
The applicant disputed that police enforcement could give the full-time coverage that would be provided by a camera in an area where speeding was prevalent. He questioned whether consultation with the council had actually taken place and said that no feasible proposals were put forward at the meeting following 19 November and the concession of a narrow strip close to the gutter was no solution. There were also the design faults in the marking in that area. The applicant had six signed statements from affected residents who denied they had been contacted as described.
Ms Johnson further stated that the proposal was implemented in early December 2013 and that RMS monitored operations during peak periods. During that site observation period, they received feedback from residents and road users saying they were very pleased with how the scheme was operating. Mr Stanley, on the other hand, said that while the scheme might have reduced risk for the small number of vehicles turning right into Maclean Avenue, it increased the risk for the 14 residents affected by the narrowing.
Turning then to the meeting of 1 November 2013, Ms Johnson named those present and pointed out that most participants also attended the regularly scheduled monthly stakeholder meetings held between RMS and the Centre for Road Safety that are convened to discuss road safety policy and programs. The meeting regarding Fullers Road was scheduled for half an hour, but took approximately 5 minutes. There was no agenda for it because the project had been the subject of detailed conversations and correspondence up to that point. Everyone present already had all the relevant material and there was no new information to table or discuss. Following the stakeholder meetings, Ms Johnson decided to proceed with the public consultation process in relation to the proposal. On 25 November a media release was approved by RMS and issued by the local MLA announcing the works to resurface the road, implement the line marking scheme and reduce it to one lane westbound.
The applicant questioned whether three participants at the meeting, who were based in Parramatta, would have travelled to Chippendale for a meeting that lasted only five minutes. He considered that the emails and documents supplied did not support the statement that the project had been the subject of detailed exchanges. Further, his GIPA requests covered verbal (presumably meaning oral) communications, but no records of such communications had been provided. He considered that the reasons given by Ms Johnson at the meeting for not installing a camera were untruthful and that she had not taken into account the difficulty of reversing into traffic, even with the kerbside strip provided. "Her final statement", he said, "amounted to "like it or lump it"".
Turning to the searches conducted, Ms Johnson said that as she had been involved in, and was closely familiar with the matter, she decided that the information falling within the application was likely to be located in the hard copy she maintained in relation to the project, the speed camera hard copy management files, the workflow document management system and in her email account. She personally inspected each document held in hard copy and determined whether it related to the project. She believed she would have been copied or included in most, if not all of, the relevant correspondence, and retained and archived it all her emails in relation to it in a single folder, thereby being able to locate them readily. Ms Johnson also instructed several of her staff to undertake searches of their email accounts and the speed camera management files. Any document she decided was related to the project was sent to the Information and Privacy unit. A full lever arch file was provided to the unit for further assessment by the GIPA team. She personally spent seven hours searching for and printing documents and her section a further 19 hours. Ms Johnson was confident they would be no other information falling within the scope of the applications held in any other location because she was personally involved in the project and along with her team managed the project files.
Mr Stanley argued that the computerized records system should have contained references to all physical documents, which would have allowed a rapid search. The 27 November 2013 briefing to the Minister was not included and may have been wilfully withheld. A fixed speed camera had been ruled out of consideration early in the process, even though the crash rate met the criteria for a camera, according to an email from P Carruthers dated 29 August 2013. The Centre for Road Safety had effectively embargoed fixed speed cameras since 2006 and its position was the major impediment preventing a camera from being seriously considered. He believed Ms Johnson had deceived the minister, the local member, the council, residents and the public on the possibility of a camera when that option had been ruled out as early as August 2013. He queried how it could have taken seven hours to carry out her search of emails without finding the ministerial briefing, especially as she would have been the person responsible for preparing it. Again, although a lever arch file of documents had been delivered to the Information and Privacy unit, he had received only 21 pages of emails and wished to know what happened to all the other documents. The fact that the ministerial briefing document was not provided to him by RMS indicated, he argued, that it might have been deliberately withheld.
Other material submitted by the applicant included a listing of what the applicant saw as misrepresentations by RMS and failures to satisfy earlier GIPA requests, together with a substantial bundle of documents including correspondence, the ministerial briefing of 27 November 2013, a resident petition, crash analysis, records of traffic speeds, a traffic modelling report, a road safety report and the McLaren report.
Applicant's submissions
The applicant's submissions in this matter are contained in a number of different places in the materials supplied, including in his answers to the affidavit of Mr Whitbourn and the statement of Ms Johnson summarized above, in an annexure to the application and in several places in the largely unpaginated bundle of documents mentioned earlier. In large part they consist of criticisms of RMS methodology and analysis in traffic and cost-benefit studies, its methods of community consultation and its approach to the commissioning and performance of roadworks. To that extent they are not of great assistance in resolving the issue in the case, which is whether there are reasonable grounds for believing that the requested information exists and whether the respondent has undertaken reasonable searches for such information as required by s 53.
The applicant's submissions in his various documents are not always consistent and are somewhat disjointed. The clearest exposition
of the main parts of the applicant's case is, however, perhaps to be found in a document dated 18 March 2014. In it Mr Stanley begins by pointing out that his GIPA requests covered the period from 1 January 2012 to 22 November 2013. In its notice of decision dated 30 January 2014, however, the table setting out particulars of the documents released applied, the applicant said, arbitrary dates that differed from those in the requests, which constituted a failure to comply with the requests. On raising the matter with Mr Whitbourn, he had been informed that RMS had no information relating to the 1 November 2013 meeting. He took that to be a denial of information, as he believed that RMS has records and documents relating to the meeting and does not wish to disclose them, perhaps because they may embarrass the organization or indicate some error or a decision contrary to the facts. That, he argued, was an offence under the GIPA Act and he had informed RMS accordingly.
Next, the applicant argued that RMS had selectively deleted information from relevant emails between its officers by not supplying attachments. Four emails were listed that he said must have included attachments, but none was supplied (Brown to Gavin 17 May 2013, Gavin to Johnson 2 September 2013, Johnson to Carruthers 5 September 2013 and Crosby to Johnson 28 October 2013). Three other emails implied the existence of other documents that were not supplied (Johnson to Crosby 28 October 2013, Crosby to Carruthers 28 October 2013 and Crosby to Johnson 28 October 2013). There were also no emails for either J Begley or K Russell over the subject period even though they were project leaders at the relevant times. Elsewhere the applicant objected that he had received no records of "verbal" (oral) communications.
After detailing, as was mentioned above, the perceived shortcomings in RMS methodology and analysis of the Fullers Road problem, the submissions refer to RMS handling of previous GIPA requests by the applicant. In December 2012 he had requested details of any previous traffic modelling simulations of Fullers Road. Having been informed that no previous modelling had taken place, he appealed to the Information Commissioner who made a further request, eliciting the same reply. On subsequent GIPA request, however, the applicant was given the full file which showed that an earlier narrowing proposal had not been supported. "Obviously this was a fact that RMS wanted to keep secret as it undermined its Narrowing proposal of 2012. The matter was reported to the Parliamentary Secretary to the Minister, and the Information Commissioner".
A second incident related to GIPA request 13G2594 of 10 May 2013 in which the minutes and decisions of two RMS meetings on 6 and 15 March were requested. RMS replied that "no minutes were taken and no decisions were reached". He had since found subsequent references to the decisions reached. "It is obvious that when any matter is sensitive to RMS proposed actions in the Fullers Road matter that it denies any records have been kept. If the RMS denial is accepted as fact when there is a need for the Auditor General to carry out an urgent Management and Governments Audit of RMS, as failure to keep records is a Department out of control". The call for an Auditor-General's investigation recurs in a number of other parts of the applicant's material.
Those episodes, the applicant contended, constituted ample evidence of departmental lack of good faith and misbehaviour in breach of s 112 of the GIPA Act and appropriate penalties should be imposed on those responsible. They also demonstrated an institutional tendency to mislead and deceive (including deceiving the minister).
Elsewhere in the material the applicant pointed out that he had not been supplied by RMS with a copy of the ministerial briefing document of 27 November 2013, which should have been supplied to him as it fell within the dates of coverage of his request, but might have been withheld deliberately. A copy was later supplied following a GIPA request to TfNSW, but he thought the evidence pointed strongly towards the existence of documents supporting the ministerial briefing that had not been supplied. In relation to his refusal to agree to an extension of time, he said that RMS had originally sought an extension of 10 days, to which he consented, but when a further extension of 20 days was sought, he felt his relatively simple search could be satisfied sooner than that. "It was up to RMS to refer back to me if any difficulty in the scoping of the request had occurred". When the 94 pages of information on DVD were released to him on 30 January 2014, they qualified as "quantity not quality" and contained no evaluation of fixed speed cameras. Only 21 pages of emails were included, whereas Ms Johnson had supplied a full lever arch file to the Information and Privacy unit, which suggested that some form of censoring had occurred. He also found it difficult to believe that the searches undertaken could have taken the number of work hours claimed. He felt there must be some failure to search competently or to use the computer records system efficiently. Had he been told that such an amount of time would be needed, he "would have refined [his] requirements and provided professional IT advice on the most economical way to proceed". He again repeated his call for an Auditor-General's investigation of RMS, commenting that the respondent was deficient in its observance of normal commercial procedures in making and documenting significant decisions. Referring to his experiences with earlier GIPA requests as outlined above, in which he said RMS had previously denied the existence of documents and been proved wrong, he suggested that his file with the Information Commissioner should be subpoenaed.
The applicant disputed the evidence stating that no records of the brief meeting on 1 November 2013 had been kept and said he would present evidence from emails that a document was to be "put on the Table" for the meeting. He also disputed Ms Johnson's statement that decision-making on this solution commenced in August 2013 and finished in December 2013, arguing that the decision not to install a speed camera was made in 2006 "by way of a secret policy of the Centre for Road Safety to place an embargo on all future Fixed Speed Cameras in the Sydney metropolitan area". Statements that a speed camera "was under consideration" were thus misleading, as RMS knew no fixed speed camera would ever be approved. He again criticized the respondent's record-keeping and the time taken for the relevant searches, adding that some of the computer records that might have been erased "inadvertently" could be recovered. That, he said, could explain some of the emails that are blank, such as Carruthers to Ahern 12 December 2013. In general, while he accepted the integrity of Mr Whitbourn in the matter of searches, he questioned the veracity of Ms Johnson.
In general, the applicant had "formed the conclusion that RMS is secretive, deceptive and unethical in its disclosure of information which is lawfully requested by an applicant. It has committed a criminal offence under Section 112 of the GIPA Act... and it has substantially deceived the Minister, the Local member, Council, Residents and the public over a number of years about the possibility of a Speed camera for Fullers Road". He therefore sought the following orders:
- 1. That RMS should be censured for the deliberate withholding of records
- 2. That the details of the censure should be made public
- 3. Action should be taken against the officer(s) concerned under s 112 of the GIPA Act
- 4. That the Imputed attachments and files identified should be supplied to him, together with relevant emails and other records of Ms K Russell and J Begley
- 5. That an independent organization - not of RMS choice - such as the Auditor-General should be asked to conduct a management and governance audit of the branch and Department.
Consideration
The accepted approach in such cases is for the tribunal to follow the two-part test laid down in Shepherd, Camilleri and similar cases.
Are there reasonable grounds for believing the requested information exists and is information of the agency?
It is for the applicant to identify the reasonable grounds for such a conclusion. As was said in Camilleri, "It is not enough for the applicant to merely assert non-compliance on the basis of general distrust of the agency". The question is whether the agency's conclusion that it does not hold the information requested is sound. Describing its role in Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52, the tribunal said, "All that the tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches...." The present case is not unlike Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56, in which the President commented that "What I have before me is a deep-seated distrust of the respondent on the part of the applicant [and] instances of further documents being located after additional searches...."
One of the applicant's arguments is that the emails released to him refer to discussions, but no records of such discussions were made available to him. But if a documentary record of such an oral discussion was not made by the time the request was received, the agency is under no obligation to create one: s 75(2).
The applicant also relies on the two previous incidents in which documents not originally found were later located and released as evidence of official misconduct and a lack of good faith. They showed, in his submission, an institutional tendency towards dissimulation and deceit. As this tribunal is not bound by the rules of evidence, it is able to consider evidence of tendency free from the restrictions imposed by the Evidence Act 1995. The two episodes relied on do show errors or shortcomings in the processing of two of the applicant's earlier requests. But they do not go so far as to support an inference of misconduct or lack of good faith. There could be other explanations for what happened, and indeed the applicant himself suggest one possibility, the failure to keep records. Further, there appears to be nothing to show whether the persons actually conducting the searches were the same as those dealing with the request in issue. Such far-reaching and serious allegations about an entire agency could not be accepted without clear evidence.
Next, the applicant points to the fact that the email correspondence listed in the table contained in the notice of decision does not cover the entire period stipulated in his request. The table, however, clearly sets out the period in which information covered by the application was actually found. It therefore does not mean that no search for information was made in relation to the rest of the time period covered by the application. Further, Ms Johnson noted that most of the recent activity and decision making commenced in August 2013 and finished in December 2013, so that there would be no email correspondence on file before June 2013.
The applicant argues in his submissions filed on 30 April 2014 that the respondent's failure to supply him with a copy of the RMS briefing to the Minister dated 27 November 2013 constituted the deliberate withholding of information and a breach of s 112. He called on the tribunal to seek two further affidavits, one from Mr Whitbourn and one from Ms Johnson, to clarify the matter. The respondent pointed out in its submissions in reply that the requests were limited to communications between "the Traffic Branch and the Road Safety Centre", whereas the ministerial briefing note was between RMS and of the Minister for Roads and Ports, with a copy to the director-general of TfNSW. Consequently, it was not covered by the requests. In his submissions dated 23 June 2014 the applicant dismisses that response as a "rather legalistic explanation...[and] an attempt to explain the unexplainable". Nevertheless, the respondent is not required to search for information that is not requested.
The applicant notes Ms Johnson's account of sending a lever arch file full of documents to the Information and Privacy unit. He points out that he received only 21 pages of emails and asks to know what happened to the rest of the emails. There is, however, no evidence as to how many pages of emails were contained in the lever arch file. It is not disputed, however, that the applicant received 94 pages of documents.
He disputes that there could have been no record of the 1 November meeting and points out that an email from Evan Walker to Peter Crosby dated 28 October 2013 states that "I think the best approach is for us to put something on the table we can talk to on Friday [1 November]". Ms Johnson's evidence is that the meeting that lasted only five minutes and no record was made of the discussions that took place. There is no evidence to the contrary and general criticisms of record-keeping carry little probative weight. The reference in the Walker email to putting something on the table does not foreshadow the preparation of a document. The phrase "put something on the table" may simply be a use of a common figure of speech meaning to raise something in discussion.
The applicant then refers to three emails dated 28 October 2013, from Johnson to Crosby, from Crosby to Carruthers and from Crosby to Johnson. All three refer to oral discussions and there is no reference to information recorded in a document. The applicant also considers that there should be emails from J Begley and K Russell on the basis of the positions they held at the relevant time, but there are no indications or other evidence that any such communications exist or existed.
The applicant appears to stand on firmer ground, however, in relation to the emails from Gavin to Johnson 2 September 2013, Johnson to Carruthers 5 September 2013 and Crosby to Johnson 28 October 2013, arguing that their contents imply the existence of attachments that have not been released. The first states "Can you please assist with this for me?", The second says simply "Please note and file", while the third states, "That might suffice until the end of the week" (although "That" could also refer to an oral discussion). There does not appear to be any visible attachment symbol on any of the copies, but the tenor of first two messages, and possibly the third, does imply that one was sent.
There is also the email of 12 December 2013, which is blank except for the date, the name of the sender (Carruthers) and the name of the addressee (Ahern). The applicant sees that as a sign that someone has attempted unsuccessfully to delete embarrassing information, but that would seem improbable. It is not difficult to delete an email completely. Nevertheless, it does suggest that the text of the message may exist somewhere in the respondent's records system.
The applicant also relies on an email from Brown to Gavin dated 17 May 2013 which he says indicates a missing attachment. But no copy of that email appears to have been supplied in the materials before the tribunal.
The applicant drew attention to the above emails in his submissions filed on 30 April 2014. The respondent thus had the opportunity to deal with those points in its submissions in reply filed on 17 June 2014, but its response on that issue was in general terms and did not attempt to meet the specific criticisms Mr Stanley had made in relation to the particular emails mentioned. The possibility is thus left open that there may be further material in the respondent's records in relation to those communications.
I therefore find that there are reasonable grounds for believing that the information referred to in paras 65 and 66 above may exist and is information of the respondent agency.
Have the search efforts made by the agency to locate such documents been reasonable in all the circumstances of the case?
In Miriani v Commissioner of Police, New South Wales Police Force [2005] NSWADT 187 at [30], the President considered the key factors in assessing whether a sufficient search had been carried out. There he said that those factors included, relevantly, the manner in which the agency's record-keeping system is organized and the ability to locate any documents that are the subject of the request by reference to the identifiers supplied by the applicant or those that can reasonably be inferred by the agency from any other information supplied by the applicant. What constitutes a sufficient search will vary with the circumstances of the case.
In Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 at [63], the President said that the standard of search that 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 record-keeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate. As Montgomery SM said in Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80 at [51], the question is whether other searches would locate other documents. In that case there was no evidence that the documents sought could not be located by the searches that had been undertaken. The onus of showing that the search efforts made were reasonable in all the circumstances of the case is on the respondent.
Mr Whitbourn's affidavit described the RMS records system and his directions to staff on where and how to undertake searches. After receiving the letter from Mr Stanley contending that the release had been incomplete, Mr Whitbourn ordered a further round of searches, including a specific effort to find any records of the 1 November meeting. In total, 30 hours of staff time had been taken up in the search process. Ms Johnson, who was intimately familiar with the matter, decided that the relevant information was likely to be located in the hard copy she maintained in relation to the number of different projects and activities. She personally inspected each document held in hard copy to determine whether it was related to the project. She also instructed staff supervised by her to search their own email accounts and the speed camera management files. All material that she thought was relevant was sent to the Information and Privacy unit. She personally spent seven hours searching for and printing documents, while her section devoted 19 hours to searching for information and compiling documents that fell within the scope of the application.
The applicant, who is a former Public Service Board inspector and a consultant on information technology, is highly critical of RMS's documentation and record-keeping processes, which he regards as outmoded, inefficient and conducive to concealment and malpractice. He believes that the searches conducted in relation to his requests could have been performed in a fraction of the time if the respondent had been more efficiently organized.
It is not for the tribunal to comment on claimed maladministration or allegations of staff misconduct unless they raise issues that fall within the tribunal's jurisdiction. It is not the proper forum for investigating general allegations against an agency (see Pedestrian Council of Australia at [46]), and indeed the applicant seems to accept that as he repeatedly calls for an Auditor-General's inquiry.
He does, however, suggest that a search of backup files and similar archives might be able to retrieve information that had been deleted. As there is no evidence before the tribunal of the amount and type of resources that would be needed to conduct such searches, it is not possible to say whether that would be a task that would be reasonable for RMS to undertake, or whether it would go beyond the bounds of reasonableness. Section 53(5) provides that an agency is not required to undertake any search for information that would require "an unreasonable and substantial diversion of the agency's resources". As a general rule, requests involving more than 40 hours of work by an agency are likely to involve "an unreasonable and substantial diversion of resources", as O'Connor P pointed out in Cianfranco v Premier's Department [2006] NSWADT 137. Some 30 hours of work have already been devoted to searches pursuant to the applicant's requests.
I accept that RMS officers diligently undertook the searches outlined in good faith. I find that the endeavours made on behalf of the respondent to retrieve all the relevant documents amounted, in the circumstances, and subject to the reservations expressed below, to a reasonable search. There is no basis for a report under s 112.
I consider, however, that as the applicant had raised apparently valid queries about the absence of attachments or text in the specific emails mentioned above, it would not be unreasonable to expect the respondent to reply specifically to the points he raised about those particular documents and therefore to conduct further searches in relation to them. It may be that the information of which Mr Stanley infers the existence never existed, or it may be that it was lost and cannot be retrieved without an unreasonable and substantial diversion of the agency's resources. But I think the attempt should be made if the respondent's determination is to be a fully responsive one.
The decision under review is therefore affirmed in part and set aside in part.
Orders
1. The decision under review is set aside in relation to the emails listed in paras 65 and 66 above;
2. In all other respects the decision under review is affirmed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 29 August 2014
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