Styles v Wollondilly Shire Council - [2023] NSWCATAD 193

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Styles v Wollondilly Shire Council [2023] NSWCATAD 193
Hearing dates: On the papers
Date of orders: 25 July 2023
Decision date: 25 July 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
(1) The agency’s decision that it does not hold any further information that falls within the scope of Item 1 of the applicant’s access request is affirmed as the correct and preferable decision.
(2) With respect to Item 4 of the applicant’s access request the decision under review is varied: information within the scope of the request is not held by the agency.

Catchwords:
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) -whether information is held by the agency

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW), ss 55, 58, 63
Government Information (Public Access) 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 15, 53, 54, 55, 58, 75, 80, 100, 105

Cases Cited:
Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Klaric v Commissioner of Police [2020] NSWCATAP 153
Shepherd v Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464
Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286
Styles v Wollondilly Shire Council [2023] NSWCATAD 8
Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:
Information and Privacy Commission, Guideline 5: Consultation on public interest considerations under section 54 and 54A of the GIPA Act.

Category: Principal judgment
Parties: Lynette Styles (Applicant)
Wollondilly Shire Council (Respondent)
Representation: Lynette Styles (Self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2023/00062917
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Lynette Styles (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of decisions of the delegate of the agency made on 14 February 2023 in response to an access application made on 19 January 2023. Relevantly, the delegate decided that the agency did not hold certain information within the scope of the access application (the first decision). It also decided to refuse to provide access to certain other information on the ground that there was an overriding public interest against its disclosure because it was personal information of another person (the second decision). With respect to the first decision the applicant contends that the agency does hold additional information within the scope of her access request which it has failed to identify. With respect to the second decision the applicant contends that the information sought is not personal information that attracts the operation of clause 3 of the Table to s 14 of the GIPA Act. This application was made to the Tribunal on 24 February 2023 (the application).
For the reasons set out following I have affirmed the agency’s first decision as the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCATAD 193
Decision Date: 25 July 2023

CaseChat Overview and Summary

In the case of Styles v Wollondilly Shire Council, the primary issue before the court was the interpretation and application of the Government Information (Public Access) Act 2009 (NSW) in relation to the obligations of an agency to search for and provide access to government information. The applicant sought access to certain information held by the respondent, Wollondilly Shire Council, under the GIPA Act. The central legal issue was whether the council had correctly determined that it did not hold any further information within the scope of the applicant's access request. Additionally, the court examined the council's obligations under the GIPA Act to conduct reasonable searches for the requested information and whether these obligations were correctly applied.

The court meticulously reviewed the obligations imposed by Section 53 of the GIPA Act, which mandates that agencies undertake reasonable searches for requested information. It noted that the obligation to search is confined to information held by the agency at the time the access application is received, and that the searches must be conducted using the most efficient means reasonably available. The court further clarified that while the likelihood of the requested information existing and being held by the agency is relevant, it is not necessary for the applicant to establish this likelihood for the agency to be obligated to conduct searches. The court held that the agency, being familiar with its information systems, is best placed to assess the existence and location of the requested information. Consequently, the court found that the council's decision that it did not hold any further information within the scope of the applicant's access request was correct and preferable, affirming the council's determination.

Additionally, the court considered the council's obligations regarding personal factors in the context of the applicant's request. It confirmed that agencies can take personal factors into account in determining whether there is an overriding public interest against disclosure. The court emphasized that while applicants can provide evidence or information concerning personal factors, agencies are not obligated to verify such claims. The court also clarified that agencies can provide access by creating new records if necessary. The analysis provided by the court was thorough, ensuring that all aspects of the GIPA Act were appropriately considered.

The final orders of the court affirmed the council's decision regarding the non-existence of further information within the scope of the applicant's request and varied the decision concerning Item 4 of the access request, confirming that the information within the scope of the request was not held by the agency. The court's detailed examination and clear articulation of the legal principles involved provided a definitive resolution to the dispute.

Orders

Orders of the court

(1) The agency’s decision that it does not hold any further information that falls within the scope of Item 1 of the applicant’s access request is affirmed as the correct and preferable decision.

(2) With respect to Item 4 of the applicant’s access request the decision under review is varied: information within the scope of the request is not held by the agency.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Which decisions are reviewable decisions In Webb v Port Stephens Council [2018] NSWCATAP 224, the Appeal Panel at [37] cited with approval the following passage from Amos v Central Coast Council [2018] NSWCATAD 101 (Amos) at [39], in which the Tribunal questioned the correctness of the test formulated in Shepherd, in particular, the notion that the applicant bears a “practical onus” …. Section 53 of the GIPA Act imposes an obligation on an agency to undertake “such reasonable searches as may be necessary to find” the requested information: s 53(2). That obligation is limited to “information held by the agency when the [access] application is received”: s 53(1). The search must be conducted “using the most efficient means reasonably available to the agency”: s 53(2). The obligation extends to searches using “any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically”: s 53(3). The obligation to search does not extend to searches that would require a “substantial and unreasonable diversion of the agency’s resources”. The question of whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches required to be undertaken to discharge the obligation under s 53. Where, for example, the likelihood of the requested information existing and being held by the agency is farfetched or fanciful, for example, NSW Health holding information about US President Trump’s Twitter account or evidence of alien life in Wagga Wagga, arguably no search could properly be characterised as being a “reasonable search … as may be necessary to find any of the government information applied for” and, therefore no obligation to search arises. Conversely, where it is reasonably likely that the requested information exists and is held by the agency, a cursory search said to be unable to find the requested information is unlikely to satisfy the obligation imposed by s 53. However, in my view, there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake “reasonable searches” is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that “there are reasonable grounds to believe that the requested information exists and is held by the agency”. Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant’s belief that the requested information exists and is held by the agency (sic). Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency’s “information is not held” is the correct and preferable decision.

Ratio Decidendi

Legal Principle Established

Consideration of personal factors of application In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the “personal factors of the application”) into account as provided by this section - The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses -2-5 (but not clause 1, 6 or 7) of the Table to section 14. The applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides: How applications are decided An agency decides an access application for government information by: Providing access by creating new record An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. An agency’s obligation to provide access to government information in response to an access application does not require the agency to do any of the following – Which decisions are reviewable decisions In Webb v Port Stephens Council [2018] NSWCATAP 224, the Appeal Panel at [37] cited with approval the following passage from Amos v Central Coast Council [2018] NSWCATAD 101 (Amos) at [39], in which the Tribunal questioned the correctness of the test formulated in Shepherd, in particular, the notion that the applicant bears a “practical onus” …. Section 53 of the GIPA Act imposes an obligation on an agency to undertake “such reasonable searches as may be necessary to find” the requested information: s 53(2). That obligation is limited to “information held by the agency when the [access] application is received”: s 53(1). The search must be conducted “using the most efficient means reasonably available to the agency”: s 53(2). The obligation extends to searches using “any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically”: s 53(3). The obligation to search does not extend to searches that would require a “substantial and unreasonable diversion of the agency’s resources”.

Medium Neutral Citation:	Styles v Wollondilly Shire Council [2023] NSWCATAD 193
Hearing dates:	On the papers
Date of orders:	25 July 2023
Decision date:	25 July 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	(1) The agency’s decision that it does not hold any further information that falls within the scope of Item 1 of the applicant’s access request is affirmed as the correct and preferable decision. (2) With respect to Item 4 of the applicant’s access request the decision under review is varied: information within the scope of the request is not held by the agency.
Catchwords:	ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) -whether information is held by the agency
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), ss 55, 58, 63 Government Information (Public Access) 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 15, 53, 54, 55, 58, 75, 80, 100, 105
Cases Cited:	Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Klaric v Commissioner of Police [2020] NSWCATAP 153 Shepherd v Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 Styles v Wollondilly Shire Council [2023] NSWCATAD 8 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173
Texts Cited:	Information and Privacy Commission, Guideline 5: Consultation on public interest considerations under section 54 and 54A of the GIPA Act.
Category:	Principal judgment
Parties:	Lynette Styles (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Lynette Styles (Self-represented) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2023/00062917
Publication restriction:	Nil