Stephenson v Endeavour Energy

[2016] NSWCATAD 189

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Stephenson v Endeavour Energy [2016] NSWCATAD 189
Hearing dates:	2 May 2016
Date of orders:	02 May 2016
Decision date:	02 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	Government information – reasonableness of search
Legislation Cited:	Government Information (Public Access) Act 2009
Category:	Principal judgment
Parties:	Claire Stephenson (Applicant) Endeavour Energy (Respondent)
Representation:	Solicitors: C Stephenson (Applicant in person) Bartier Perry Solicitors (Respondent)
File Number(s):	1510437

REASONS FOR DECISION

1. Ms Stephenson made an access application to Endeavour Energy (“the Respondent”) pursuant to the Government Information (Public Access) Act 2009 (“the GIPA Act”). She requested the following information:

"A copy of the file and all documentation including notes, emails, voice recordings, relating to [address], Claire Stephenson & David Crawley.

1.   A copy of the file and all documentation - including notes, emails, voice recordings relating to [address], Claire Stephenson and David Crawley.

2.   A copy of the agreement between Mr/Mrs Schuck and Mrs Froude described as "written permission being granted to cross your neighbour's property".

3.   Copy of the minutes of the Audit and Risk Committee - January 2010 to present.

4.   Copy of the minutes of the Safety, Human Resources and Environment Committee - January 2010 to present.

.. .the scope of items 3 and 4 as follows:

Audit and Risk Committee - January 2010 to present

Safety, Human Resources and Environment Committee - January 2010 to present

Specifically I seek any material in the minutes of the above committees relating to the following -

PCB

Polychlorinated biphenyl

CCA

Chromium

Copper

Arsenic

Arsenate

Contamination

Transformers

Poles

Transmission poles

[address]

Claire Stephenson

David Crawley”

2. Ms Stephenson was not satisfied with the initial determination of the access application and sought internal review. An internal review was undertaken by David Neville, the Respondent’s General Manager Health, Safety and Environment. Mr Neville determined to release a number of documents that were identified as falling within the scope of the request. He also found that some of the requested information could not be located. Other material that was identified by the searches undertaken in response to the access application was found to be outside of the scope of the request.

3. Ms Stephenson applied to the Tribunal for external review of the Respondent’s determination. The matter was listed for a planning meeting and Ms Stephenson clarified the scope of her request. As a result, the Respondent provided her with further documents and also provided a schedule which identified those parts of the access application that remained unresolved. The Schedule identified 9 items and provided an explanation of the Respondent’s position in regard to each item.

4. By letter dated 25 February 2016 Ms Stephenson advised the Respondent’s solicitor, Mr Mark Paul, that the outstanding items were as follows:

Item No 1.    Fax dated 23/11 /2004 page 3 of the 6 page fax is missing

Item No 3.    Email has no content

Item No 4.    Document not provided

Item No 5.    230209-Hartcher-Barrctt.doc. There is no mention of Hartcher-Barrett in Attachment 19 nor do the dates correspond. This document has not been provided.

Item No 7.    7.1 Review and draft reply are missing. Neither the email dated 09/12/2011 nor the attachment dated 30/09/2011 are the review or draft reply referred to in email 19/12/2011-1:41pm

Item No 8.    The document provided is not as requested.

5. The matter came before me for hearing on 2 May 2016. On that occasion the Respondent relied on the evidence of Ms Awatef El Abed who is employed as a Paralegal with the Respondent. Ms El Abed provided a statement in which she outlined the steps that had been taken in trying to locate the information that remained in issue. Ms El Abed also attended the hearing and was cross-examined.

6. Following the hearing I determined that I was satisfied that there is no further information held by the Respondent that is captured by the scope of the access application and I affirmed the Respondent’s decision.

7. The Respondent has requested written reasons for that decision. These reasons are provided in response to that request.

The applicable legislation

8. 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.

Item No. 1.

9. This item relates to a facsimile dated 23 November 2004. The facsimile is from Dr Scott Brown to Integral Energy (for present purposes, now Endeavour Energy). A page within the body of the fax is missing. The Respondent maintains that it has carried out extensive electronic and physical searches and that it was not found. Since 2004 the Respondent’s filing systems have been changed. Many paper records have been scanned and stored in electronic form and many papers have been destroyed.

10. Mr Paul submitted that the fax came from Ms Stephenson’s neighbour, Dr Brown, and attached some documents. The attachments are not identified but from the content of the material and reading within the document it seems likely that the missing page is a letter from Ms Stephenson to Dr Brown. It is possible that the letter was put to one side and became separated from the remainder of the fax. If that were the case, Ms Stephenson would have the letter. If that were not the case, the Respondent is unable to offer any other explanation for why the page is missing.

11. The Respondent relies on Ms El Abed’s evidence of the searches that were undertaken. She stated that she spent approximately eleven hours facilitating searches in an effort to locate the missing page of the fax.

12. Section 53 of the GIPA Act provides that an agency’s obligation to provide access to information is limited to information that is held by the agency. It must undertake reasonable searches using any resources reasonably available to it.

13. On the evidence before me it is clear that the Respondent has made significant efforts to locate the missing page of the 23 November 2004 fax and has been unable to locate it. In my view it is unlikely that further searches would be successful. In the circumstances I am satisfied that the searches were reasonable for the purposes of meeting the Respondent’s obligations under section 53 of the GIPA Act.

Item No. 3 and Item No. 6.

14. These items relates to an email chain commencing 23 February 2012 from the Respondent’s Information Support Team (now known as the Records Team). Apart from the subject line and an attachment the email has no content. The email was sent from the Information Support Team to Mr Ty Christopher and attached a letter of 17 February 2012. That letter had been received from Ms Stephenson and Mr David Crawley and was addressed to Mr Christopher. That document was provided to Ms Stephenson at the planning meeting on 1 February 2016.

15. Ms El Abed’s evidence is that the practice of the Information Support Team at the time when dealing with incoming mail was to attach the correspondence to an email addressed to the relevant staff member. The subject of the correspondence was identified in the subject line of the email. The Information Support Team did not add any text to the body of the email.

16. The email simply sends the attached item to the appropriate person, and identifies the item in the subject heading. Ms El Abed’s evidence is that the attachment is a letter from Ms Stephenson dated 17 February 2012. A copy of that letter was provided to Ms Stephenson on 1 February 2016. Ms Stephenson did not dispute that evidence.

17. There is no basis on which I could conclude that the Information Support Team added any text to the body of the email or that the attachment was not the letter from Ms Stephenson dated 17 February 2012. In the circumstances I accept Ms El Abed’s evidence. I am satisfied that Ms Stephenson has been provided with all the information held by the Respondent in relation to this item.

Item No. 4.

18. This item relates to a reference to an agreement within the fax from Dr Scott Brown to Integral Energy dated 23 November 2004 referred to above. Dr Brown attached a copy of a letter from Illawarra Electricity to the previous owner of Dr Brown’s property, Mrs Froude. That letter, which was dated 23 November 1989, referred to Mrs Froude having obtained and provided the written permission to cross her neighbour's property.

19. Ms Stephenson contends that the agreement is referred to on a regular basis - therefore it should be made available.

20. The Respondent maintains that it has carried out extensive electronic and physical searches and that the agreement was not found. Ms El Abed gave evidence of the efforts made to locate the agreement. She stated that she spent approximately twelve hours facilitating searches in an attempt to locate the agreement. Despite these searches the document has not been located. She further stated that there are no other searches that could be undertaken that could be expected to locate the document.

21. I am satisfied with Ms El Abed’s evidence. In my view it is unlikely that further searches would be successful. In the circumstances I am satisfied that the searches were reasonable for the purposes of meeting the Respondent’s obligations under section 53 of the GIPA Act.

Item No. 5 and Item No. 8.

22. These items relate to an email chain of 16 October 2012 from Mr Peter Payne to Mr Ty Christopher and the reference within the email chain to an attachment. The email that commenced the chain was an email from Mr Crawley attaching a letter from him, and that letter concerned the application of materials to treat timber poles.

23. The email from Mr Payne to Mr Christopher says:

Please see the attached Ministerial in response to a previous request from DITRIS about the preservation of timber poles.

It may help with the crafting a response to Mr Crawley.

24. Ms Stephenson seeks access to the attached document which was titled 230209 Hartcher-Barrett.doc.

25. Ms El Abed gave evidence that the attachment to the email from Mr Payne to Mr Christopher is a Word document bearing the file name 230209 Harcher-Barrett.doc. That document is a briefing note of 18 May 2012 concerning the treatment of timber poles with sump oil. A copy of that document (with a redaction of an individual's name) was provided to Ms Stephenson on 1 February 2016

26. Ms Stephenson disputed that the Hartcher-Barrett document had been provided. She said that she was provided a copy of a ministerial briefing note and not the Hartcher-Barrett document. She said that she what had been given is not the document that she requested.

27. Ms El Abed gave evidence that she opened that email and opened the attachment to the email and that is the attachment to that email from Mr Payne to Mr Christopher.

28. I accept Ms El Abed’s evidence. I am satisfied that the ministerial briefing note that was provided to Ms Stephenson is the same document that is referred to as 230209 Harcher-Barrett.doc and that it was the attachment to the email from Mr Payne to Mr Christopher.

29. That being the case, I am satisfied that Ms Stephenson has been given a copy of the document.

Item No. 7.

30. This item relates to an email chain of 19 December 2011 at 1:41pm from Mr Bill Watts to Mr Rod Howard. Ms Stephenson seeks access to the attachment referred to in the email. The email says:

I have attached our review and a draft reply.

31. Ms Stephenson contends that she was not given the draft reply referred to in email chain.

32. Ms El Abed’s evidence is that she inspected the email from Mr Watts to Mr Howard. She stated that there were two attachments to that email, which included:

(a)   an email dated 9 December 2011 which included one attachment; and

(b)   an email dated 15 December 2011 which included two attachments.

33. Ms El Abed stated that Ms Stephenson was provided with copies of the emails of 9 and 15 December 2011 with their attachments as part of the earlier provision of documents in response to a GIPA request.

34. On the evidence before me I am satisfied that when the draft reply was signed it became the reply. That meant that the only difference between the two documents was that the draft reply is an unsigned version and the reply is the signed version.

35. I am also satisfied that Ms Stephenson has been provided a copy of each of those documents.

Conclusion

36. I am satisfied that the searches that the Respondent undertook to locate all the information that it holds which falls within the scope of Ms Stephenson’s access application were reasonable for the purposes of meeting its obligations under section 53 of the GIPA Act. In my view it is unlikely that further searches would be successful in locating any other information which falls within the scope of the access application.

37. On the evidence before me it is clear that the Respondent has given Ms Stephenson a copy of all the information that it holds which falls within the scope of her access application.

38. In the circumstances the appropriate order is to affirm the Respondent’s decision.

Order

The decision under review is affirmed.

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: 19 August 2016