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

1. 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).

2. For the reasons set out following I have affirmed the agency’s first decision as the correct and preferable decision. There are insufficient grounds to conclude that the agency holds additional information falling within the scope of the access request. Having regard to the applicant’s clarifications of her access request submitted in these proceedings I have determined that the agency’s second decision should be varied. The correct or preferrable decision is that this information is not held.

Procedural history

3. In section 3 of the Administrative review application form, ‘Grounds for Application’, the applicant states the following:

s 4 GIPA, Refuse to provide access to information in response to access application.

s 10 GIPA, decision to impose processing charge

4. However, I am unable to find any later reference to a dispute about a processing charge in the applicant’s submissions.

5. The application came before the Tribunal, differently constituted, for a Case Conference on 27 March 2023. The dispute could not be resolved at that time. Consequently, the Tribunal adjourned the proceedings for determination and issued directions to the parties for the filing and exchange documents and submissions that they intended to rely upon in relation to that determination. The parties were directed to indicate in their submissions if they considered the application to be suitable for determination ‘on the papers’

6. The directions made on 27 March 2023 also include the following note:

The only matters in issue in this application are:

(a)   Item 1 of the applicant’s access application in that the respondent determined it did not hold any further invoices falling within that item – the applicant contends that this decision is incorrect as no invoices were provided for June 2022 when legal advice was given during this time; and

(b)   Item 4 of the applicant’s access application in that the respondent determined it did not hold any invoices from external solicitors and that the salary of Mr McCann, the inhouse solicitor of the respondent is withheld on the grounds of an overriding public interest against disclosure.

7. It would thus appear that if there was any dispute about a processing charge, that issue had been resolved, or abandoned, by the time Case Conference. I have therefore not considered this issue.

Material considered

8. In reaching my determination I have considered the following material:

Applicant

1. Administrative review application dated 21 February 2023 and Annexure,

2. Applicant’s submissions filed on 1 May 2023 and annexures,

3. Applicant’s further submissions filed on 11 May 2023,

4. Applicant’s submissions in response to the agency’s objection to her filing of the submission dated 11 May 2023 filed 13 May 2023.

Agency

1. s 58 bundle filed 19 April 2023,

2. Tab 5, being a confidential section of the agency’s s 58 bundle,

3. Statement of Alexandra Roberts dated 19 April 2023,

4. Submissions filed on 19 April 2023,

5. Submissions and further evidence filed on 9 May 2023, including a further Statement of Alexandra Roberts dated 8 May 2023,

6. Email dated 12 May 2023 objecting to the applicant filing a further submission on 11 May 2023.

   9. As will be apparent from this summary, there was a dispute between the parties as to whether the applicant was entitled to file a further submission on 11 May 2023. The procedural directions made on 27 March 2023 did not provide for this. However, I have determined to permit the applicant to rely on that submission. It is made in response to Ms Roberts’ Statement dated 8 May 2023 which contained additional evidence that the applicant had not had the opportunity to respond to previously. There is no procedural unfairness to the agency arising from acceptance of that submission. In its objection, it has taken the opportunity to reply to the submission and I will also consider that reply. As I have determined to dispense with an oral hearing of the application it is important that the parties have had a full opportunity to put before the Tribunal any material they consider relevant to the determination that is to be made.

Dispensing with a hearing

10. As noted above, the directions made by the Tribunal at the Case Conference conducted on 27 March 2023 directed the parties to indicate in their submissions if they considered the application suitable for determination on the papers.

11. The applicant did not address this issue in her submissions filed on 1 May 2023. However, in her submissions dated 11 May 2023, the applicant contends that the Tribunal ought to direct the agency to file an additional document, being a Sparke Helmore Lawyer invoice dated 31 May 2022, and that this document should be viewed “in closed session for consideration as to or not further invoices exist”. The applicant would thus appear to be indicating that some form of oral hearing is required. However, that impression is negated in her submissions dated 13 May 2023 where she ‘[notes] the Tribunal will determine this matter on the papers”.

12. At paragraph 21 of its submissions dated 9 May 2023 the agency advises that it is its position that this matter can be dealt with on the papers under s 50(2) of the NCAT Act as ‘the parties’ positions have now been adequately put to the Tribunal”.

13. Section 50 of the NCAT Act sets out the circumstances in which hearings are required in proceedings before the Tribunal. It relevantly provides:

1. When hearings are required

2. A hearing is required for proceedings in the Tribunal except –

…

(c)   if the Tribunal makes an order under this section dispensing with a hearing, …

…

1. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

2. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first –

(a)   afforded the parties an opportunity to make submissions about the proposed order, and

(b)   taken such submissions into account.

1. The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

2. This section does not prevent the Tribunal from holding a hearing even if it is not required.

   14. I have determined to dispense with an oral hearing of the application in accordance with s 50(2) of the NCAT Act. In this respect I am satisfied in accordance with s 50(3) that the parties have been provided with an opportunity to make submissions in relation to this order, and I have taken the submissions that have been made into account in determining to dispense with a hearing.

   15. This is a matter that is amenable to determination on the papers because the issues in dispute are of narrow compass, both parties have fully articulated their cases in writing, and review of the parties’ submissions satisfies me there is satisfactory joinder on the issues in dispute. Dispensing with a hearing will also reduce the public and party/party costs associated with the disposition of the application. The dispute does involve witness evidence (being that of Ms Roberts) about which there does appear to be a degree of contention. However, the applicant has not indicated any wish to cross-examine Ms Roberts. Her contentions with Ms Roberts’ evidence are set out in submissions. Having regard to each of these considerations dispensing with a hearing is consistent with the Tribunal’s guiding principle, which is the ‘just, quick and cheap resolution of the real issues in a proceeding: s 3(d) and 36(1) of the NCAT Act.

Background

16. This Application for administrative review arises in the context of a long-running dispute between the applicant and the agency.

17. The applicant is a former member of the Council of the agency. She is also an author of a book, Antill Golf Club Associates, which is a history of women associated with the Antill Park Country Golf Club. That book contains text that is critical of the agency’s conduct in relation to the compulsory acquisition of property associated with the Golf Club. On 2 June 2022 the book was to be launched at a function to be held at Picton Library, which is a facility operated by the agency. However, on or about 20 May 2022, the agency’s Head of Integrity and Governance advised the applicant by letter that the agency objected to certain content of the book and consequently its launch was cancelled.

18. Prior to receiving this advice, on or about 2 June 2022, the applicant had donated a copy of her book to Picton Library for public lending. Following cancellation of the launch of the book the applicant attempted to establish from the agency if the book would be placed in the library’s lending collection. On or about 30 May 2022 she was advised by letter from the agency’s Director Customer and Community Services that the agency had received and retained a copy of the book for “archiving purposes” and “[would] not make it available to the public through its Library Services given the content that concerns Council”.

19. That advice led to the applicant issuing the agency’s General Manager with a letter of demand that the agency pay for the book in the amount of $125.00. The agency did not make payment. Consequently, the applicant filed a Statement of Claim in the Local Court at Picton seeking an order for payment. In response, the agency filed a Notice of Motion seeking orders that the Statement of Claim be dismissed. The matter came before the Local Court at Picton on or about 18 November 2023. The Court ordered the agency to pay the applicant $125.00 on the basis that her Statement of Claim was otherwise withdrawn and that each party would bear its own costs.

20. The dispute concerning the agency’s cancellation of the book launch and the decision not to allow the book to be placed in Picton Library’s lending collection resulted in the applicant making several access requests to the agency under the GIPA Act from which she has instituted proceedings in the Tribunal. Relevantly to this proceeding, in the context of an access request (previous access request) that gave rise to Styles v Wollondilly Shire Council [2023] NSWCATAD 8 the agency identified 27 documents that fell within the scope of that access request. Various of those documents involved communications with solicitors which the agency refused to release to the applicant on the ground that they were subject to legal professional privilege.

21. The applicant is incensed by the costs the agency incurred in responding to her GIPA access requests and in defending her Statement of Claim before the Local Court and seeks to publicly expose them. That is the principal object of the access request that gives rise to these proceedings. The schedule of documents the agency provided to the applicant in response to her previous access request is relied upon as indicating the extent (and by implication, the cost) of the legal services that were deployed by Council in relation to these matters.

The access application

22. By letter received by the agency on 19 January 2023 the applicant made the following access request:

…

I refer to Council’s Notice of Decision to a GIPA Application dated 4 July 2022 with attached Schedule identifying items 1 to 27 inclusive.

By way of fresh application pursuant to the Government Information (Public Access) Act, I seek access to information dealing with Council’s legal expenses as follows:

1. I seek an itemised list of the total expenses for advice provided to Wollondilly Shire Council by Sparke Helmore Lawyers identified in the July 2022 Notice of Decision Schedule ranging from 1 May to the present date of this GIPA application in relation to Lynette Styles.

2. I seek an itemised list of the total legal expenses billed by Lindsay Taylor Lawyers in the Picton Local Court matter of Lynette Styles v Wollondilly Shire Council (Matter no. 22/00275753) from the date of the 31 May 2022 Letter of Demand to Council claiming $125 up to the present date of this GIPA application.

3. I seek an itemised list of the total legal expenses in the NCAT matter of Lynette Styles v Wollondilly Shire Council (matter no: 2022/00199706) defended by Lindsay Taylor Lawyers from 4 July up to the present date of this GIPA application.

4. I seek a list of all other legal expenses incurred by Council in relation to receiving legal advice from solicitors, including Council’s inhouse salaried solicitor Bruce McCann in deal with matters concerning Lynette Styles from 1 May 2022 to the present date of this GIPA Application.

23. On 14 February 2023, the agency’s delegate, Ms Alexandra Roberts, Data and Information Management Coordinator – Access to Information Officer notified the applicant of the outcome of her access application by Notice of Decision (Notice of Decision).

24. In section 3 of the Notice of Decision Ms Roberts states the following in relation to the searches for information that were undertaken

1. Searches for information

Under the GIPA Act, we must conduct reasonable searches for the government information you asked for in your application. I have searched our records to find any information that falls within the scope of your application. The following searches were undertaken:

Civica Authority

● Lindsay Taylor Lawyers

● Sparke Helmore Lawyers

Internal Staff Request for Information

● Senior Corporate Governance & Legal Officer

25. In section 4 of the Notice of Decision Ms Roberts outlines the public interest test and how it was applied in the circumstances of this case. Relevantly, she sets out the following findings:

4.1   Public interest considerations in favour of disclosure

…

I find the following consideration in favour of disclosure are relevant to your application:

● To promote open and transparent government

● Individuals should have confidence in the workings of Council and how Council addresses issues

● Access to information leads to individuals being informed of events/issues.

● To provide a legally enforceable right to access information.

4.2   Personal factors of the application

I can also take into account any personal factors of your application, under section 55 of the GIPA Act. I have considered the fact that you are involved in the cases specified in your request.

4.3   Public interest considerations against disclosure

When applying the public interest test, the only public interest considerations against disclosure that I can take into account are those set out in the table to section 14 of the GIPA Act. To show that they are relevant to the information you asked for, I need to consider whether they could reasonably be expected to have the effect outlined in the table.

I have identified the following considerations against disclosure as being relevant to your application:

Section 14 Part 3 Individual rights, judicial processes and natural justice

a) Reveal an individual’s personal information.

4.4   Consultation

The information that you asked for includes information that is personal information of another person. I was therefore required, under s 54 of the GIPA Act, to consult with those people before releasing the information.

There was an objection to the release of the information.

As the information was in relation to their salary, third party consultation was required to be undertaken, and the objection was to this information being released.

The objection does not mean that I cannot release the information. However, I must take it into account when making my decision. I have therefore considered it when applying and balancing the public interest test.

Weight was given to this objection given it would be releasing personal information about employment details of a staff member.

4.5   Balancing the public interest

I have considered the relevant public interest considerations in favour of and against disclosure of the information you requested. I have also considered the objection raised by the third party and the personal factors of the application.

Having weighed up the considerations, I have decided that there is an overriding public interest against disclosure of some of the information. Below is a breakdown of that will be released as per your application. This is also summarised in the attached Appendix A Schedule of Documents.

[Item 1 of the access request is set out]

● Information to be released. Note: legal proceedings information is/will be available in the relevant financial year’s Annual Report

[Item 2 of the access request is set out]

● Information to be released. Note: legal proceedings information is/will be available in the relevant financial year’s Annual Report

[Item 3 of the access request is set out]

● Information to be released. Note: legal proceedings information is/will be available in the relevant financial year’s Annual Report

[Item 4 of the access request is set out]

● Information not found (legal advice from other solicitors), and Information to be withheld (Council’s inhouse salaried solicitor)

…

26. Appendix A of the Notice of Decision is a Schedule of Documents. It contains two items. Item 1 is identified as “legal expenses” which is “released” to the applicant. Item 2 is identified as “Bruce McCann employment details” which is “withheld” based on “section 14 Part 3 (a)”. On or about 27 February 2023, the agency released item 1 to the applicant upon her payment of a $60.00 processing charge.

27. Item 1 is in the form of a spreadsheet table. It has five columns marked “transaction ref.”, “supplier”, “short description”, “summary” and “cost ($)”. It has 12 rows which are clustered into 3 divisions. The first division has a single transaction reference (3285776). The supplier associated with that transaction reference is Sparke Helmore Lawyers. The short description of the transaction is “GIPAA” and the summary states “restriction on circulation of book – Antill Golf Club Association”. There is no date reference. The cost recorded against this transaction is $511.50. The second division has 5 transaction references related to the supplier Lindsay Taylor Lawyers. Each transaction has the short description “NCAT” and the summary “Styles v Wollondilly Shire Council, NCAT proceedings 2020.00199706 (GIPA)”. Four of the transactions have date ranges. Each has a specific cost, the total of which is $24,719.93. The third division has 3 transaction references related to Lindsay Taylor Lawyers. Each transaction has the short description “Picton Local Court” and the summary “Styles v Wollondilly Shire Council, Picton Local Court Proceedings No. 2022/00275753 (Book Cost Recovery). Two of the transactions have date ranges. Each has a specific cost, the total of which is $4,745.95. Under the table appears the heading “total legal expenses” and the figure “$29,977.38”.

Contentions of the parties

Applicant

28. The applicant takes issue with the agency’s decision in relation to her access application on the following bases:

1. with respect to item 4 of her access request, she contends it was incorrect for the agency to determine that there was an overriding public interest against disclosure of the information sought in relation to Mr Bruce McCann because, she contends, this was not personal information,

2. with respect to item 4 of her access request, the agency has failed to explain the searches it carried out to identify information that falls within the scope of her access request relating to ‘other solicitors’,

3. with respect to item 4 of her access request, the consultation undertaken by the agency in relation to whether there existed an objection to the information sought in relation to Mr McCann was of impermissible scope and resulted in irrelevant considerations, being the opinion of a person other than Mr McCann, being considered in determining if this information was to be disclosed,

4. with respect to item 1 of her access request, the information disclosed about Sparke Helmore Lawyers’ costs ($511.50) is disproportionate to the attendances that firm supplied to the agency, as is apparent from documents 15-19 and 21-23 of the schedule the agency released to the agency in response to her previous access request. Additionally, the applicant contends the agency has only disclosed legal costs incurred by the retention of Sparke Helmore Lawyers up to 31 May 2022. It has not disclosed any legal cost incurred in relation to an attendance on the agency provided by Sparke Helmore Lawyers on 1 June 2022 such attendance being identifiable from item 23 of the schedule of documents provided in response to her previous access request. The applicant submits that these discrepancies demonstrate that the agency has failed to carry out reasonable searches for information that falls within the scope of item 1 of her access request.

29. Although not made explicit in her submissions I infer that it is the applicant’s case that the agency’s decision in relation to her access request ought to be set aside and the access request referred to the agency for reconsideration.

Agency

30. The agency submits that it has undertaken reasonable searches for information that falls within the scope of the applicant’s access request and that it has released that information to her. It contends that its decision that it does not hold any further information that falls within the scope of the applicant’s access request is the correct and preferrable decision and ought to be affirmed by the Tribunal.

31. With respect to item 4 of the access request the agency now contends that its decision not to release Mr McCann’s ‘employment information’ on the basis that it was personal information was not correct. It submits that it has reconsidered the matter and having regard to the scope of item 4 of the access request, now considers Mr McCann’s employment information outside the scope of the request. It submits that the correct and preferrable decision with respect to item 4 is therefore that information within the scope of that item is not held.

Applicable law

The ADR Act

32. In determining an application for administrative review under the ADR Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: s 63(1). For this purpose, the Tribunal may exercise all the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2). The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3).

33. A “correct” decision is one that is rightly made, while preferable is apt to refer to a decision involving discretionary considerations: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 at [140] per Kiefel J.

The GIPA Act

34. The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states:

(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 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.

35. This object is amplified with a statutory command, contained in section 3(2), which provides:

(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.

36. Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information:

1. Presumption in favour of disclosure of Government Information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

37. Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1):

1. Access applications

2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

…

38. Part 2, Division 2, of the GIPA Act concerns the public interest considerations that are associated with access to government information. Section 12 in that Division provides:

1. Public interest considerations in favour of disclosure

2. There is a general public interest in favour of the disclosure of government information.

3. Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note:   The following are examples of public interest considerations in favour of disclosure of information –

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

…

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

…

39. Section 13 contains the “public interest test” for determining if there is an overriding public interest against disclosure. It provides:

1. Public interest test

There is an “overriding public interest against disclosure” of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

40. Section 14 contains public interest considerations against disclosure. It provides:

1. Public interest considerations against disclosure

2. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

3. The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

   41. The Table 14(2) consideration that is at issue in these proceedings is:

…

1. Individual rights, judicial processes and natural justice: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -

(a)   reveal an individual’s personal information,

…

42. Section 15 sets out the principles that apply to the determination of the public interest. It provides:

1. Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles –

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

43. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [24]-[25], the Appeal Panel explained the approach to determining whether there is an overriding public interest against disclosure as a two-step process. The agency case for refusal must rely on one or more of the s 14 considerations. In so far as the considerations in the Table to s 14 are engaged, the Tribunal’s task is then to weigh that case against the factors favouring disclosure mindful of the injunctions that appear in both ss 12 and 15.

44. Part 4, Division 3 of the Act sets out the process according to which an agency is to deal with an access application. Section 53 in that Division sets out the scope of an agency’s obligation to search for information that falls within the scope of an access application. It provides:

1. Searches for information held by the agency

2. 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.

3. 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.

4. 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.

5. 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.

6. An agency is not required to undertake any search for information that would require an unreasonable and substantial division of the agency’s resources.

   45. Section 54 sets out an agency’s obligation to consult with relevant others in relation to an access application. It provides, relevantly:

7. Consultation on public interest considerations

8. An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that –

(a)   the information is of a kind that requires consultation under this section, and

(b)   the person may reasonably be expected to have concerns about the disclosure of the information, and

(c)   those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

1. Information relating to a person is of a kind that requires consultation under this section if the information –

(a)   includes personal information about the person, or

(b)   concerns the person’s business, commercial, professional or financial interests, or

…

…

1. The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

2. The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

…

46. Section 55 in that Division provides that 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 personal factors related to the application into account. It provides:

1. Consideration of personal factors of application

2. 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 -

(a)    the applicant’s identity and relationship with any other person,

(b)   the applicant’s motives for making the access application,

(c)   any other factors particular to the applicant.

1. 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.

2. 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.

3. 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.

…

1. 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.

   47. Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides:

2. How applications are decided

3. An agency decides an access application for government information by:

…

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

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

…

48. Part 4, Division 6, sets out how access to information is to be provided. Section 75 in that Division deals with an agency’s obligation with respect to the creation of a new record. It provides:

1. Providing access by creating new record

2. 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.

3. 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 –

(a)   make a new record of information held by the agency,

(b)   update or verify information held by the agency,

(c)   create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

49. Part 5, Division 1, of the Act deals with the review of decisions of concerning access applications. Section 80 in that Division specifies those decisions that are reviewable decisions. It provides, relevantly:

1. Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part –

(a)   a decision that an application is not a valid access application,

(b)   a decision to transfer an access application to another agency, as an agency-initiated transfer,

(c)   a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d)   a decision to provide access or to refuse to provide access to information in response to an access application,

(e)   a decision that government information is not held by the agency,

(f)   a decision that information applied for is already available to the applicant,

(g)   a decision to refuse to confirm or deny that information is held by the agency,

(h)   a decision to defer the provision of access to information in response to an access application,

1. a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),

(j)   a decision to impose a processing charge or to require an advance deposit,

(k)   a decision to refuse a reduction in a processing charge,

(l)   a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,

(m)   a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).

50. Division 4 of Part 5 concerns administrative review of decisions by NCAT. Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.

Consideration

Consultation

51. As set out above, the applicant complains that the consultation procedure adopted by the agency in relation to information that it considered Mr McCann’s personal information was irregular. This involves three separate allegations:

1. that item 4 of the applicant’s access request did not contain personal information that required consultation to be undertaken with Mr McCann,

2. that Mr McCann should not have been consulted in any event because he had a conflict of interest in relation to the access application arising from his involvement as counsel for the agency in relation to the Local Court proceedings and the previous access request. It is said that in these circumstances consultation with Mr McCann was in conflict paragraph 3.7 of the Information and Privacy Commission’s Guideline 5: Consultation on public interest considerations under section 54 and section 54A of the GIPA Act (I confess I have not been able to grasp this point),

3. that it may be inferred that Ms Roberts consulted with a person recommended to her by Mr McCann about the applicant’s access request in breach of the applicant’s privacy. It is also suggested that this resulted in the agency considering an irrelevant consideration being the opinion of a person whose personal information was not the subject of the access request.

52. Allegations a and b, in substance and ultimately, go to the issue of whether the agency’s decision to refuse to provide access to information concerning Mr McCann that falls within the scope of item 4 of the access application was the correct and preferrable decision. That decision is a reviewable decision under s 80(d) of the GIPA Act. The allegations are otherwise not amendable to administrative review because the conduct complained of does not constitute a reviewable decision under s 80 of the GIPA Act. In this respect, NCAT’s jurisdiction is statutory only, not at large. NCAT only has jurisdiction to conduct administrative review where jurisdiction to do so is expressly conferred by enabling legislation, in this case, the GIPA Act.

53. The allegation set out at paragraph c above arises from a file note made by Ms Roberts on 23 January 2023 in relation to her contact with Mr McCann about the applicant’s access application. The file note contains the text of a message sent to Mr McCann and his response to it. That exchange includes the following:

Ms Roberts

… I have sent you an email with the official third party consultation letter for your records, but essentially I’ve identified your salary as falling within the scope of [the applicant’s access] application and would like to know whether you object to the release of this information, and I will consider your response as part of my decision …

Mr McCann

… Personal details such as salary are never accessible.

I certainly object in any event.

If you require assistance, Carlo’s colleague would be happy to help.

54. “Carlo” is a reference to Carlo Zoppo who is apparently a solicitor associated either with Lindsay Taylor Lawyers or Sparke Helmore Lawyers.

55. The agency denies that it consulted with anyone other than Mr McCann in relation to the applicant’s access request.

56. This complaint about the consultation process undertaken by the agency is also not amenable to administrative review as it does not involve a decision that is reviewable as designated by s 80 of the GIPA Act.

57. For the foregoing reasons, other than in relation to the potential relevance of the agency’s consultation to the ultimate issue of whether the agency was justified in refusing access to information concerning Mr McCann, this element of the applicant’s application for administrative review must be dismissed on the basis that the Tribunal does not have jurisdiction to deal with it.

The decision that information is not held – item 1 of the access request

58. In its submissions of 24 April 2023 and 8 May 2023 the agency contends that the issue of whether the agency has conducted reasonable searches for information that falls within the scope of the applicant’s access application is to be analysed in accordance with a ‘two-step process’. That is, that the applicant first bears an evidentiary onus of establishing that there are reasonable grounds to believe that the requested information exists. It is only if that onus is discharged that it falls to the Tribunal to determine if the searches conducted by the agency were reasonable. The agency cites as authority for that proposition Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 (Camilleri) at [54]. Camilleri is in a substantial line of authority ultimately traceable to a decision of the Queensland Information Commissioner in Shepherd v Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 (Shepherd). That line of authority is no longer the applicable law.

59. In this respect, an Appeal Panel of the Tribunal held in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [35]-[39]:

1. 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” ….

2. 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”.

3. 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.

4. 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.

5. While reluctant to depart from a long line of authority, I have concluded that in the context of an administrative review of an “information not held” decision made under s 58(1)(b) of the GIPA Act, the application of the two-step test in Shepherd is plainly wrong. Applying that test requires the Tribunal to first determine whether there are “reasonable grounds to believe that the requested documents exist and are documents of the agency”. If the Tribunal concludes that the answer to that question is no, the antecedent question of whether the “search efforts made by the agency to locate such documents have been reasonable” does not arise. In my view, that approach is at odds with s 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held is justified.

   60. In Klaric v Commissioner for Police [2020] NSWCATAP 153 an Appeal Panel of the Tribunal considered the extent of the Tribunal’s power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]:

6. The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search.

   61. The Appeal Panel in Wojciechowska concurred with that statement, but added at [41]:

7. … Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an “information is not held” decision is the “correct and preferable decision”. …

stating at [42] to [44]:

1. The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is “to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The “burden of establishing that the decision is justified lies with the agency”: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.

2. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “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”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits (sic – exists) and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.

3. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

4. identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

5. determine whether the agency has proved any relevant factual issues on the balance of probabilities;

6. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

7. applying those findings, decide what the correct or preferable decision is;

8. affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

   62. Section 53 imposes a standard of “reasonableness” in relation to the searches required to be undertaken by an agency rather than any absolute or strict standard. Such searches must therefore be “logical”, “sensible”, “appropriate” and “fair” but are not required to be “extreme” or “excessive” (to illustrate using synonyms and antonyms. The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency’s obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative, or belligerent observer.

   63. It thus falls to the agency to establish pursuant to s 105 of the GIPA Act that it has carried out searches for government information within the scope of the access request in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant’s section 9(1) right to government information.

   64. The agency’s evidence of the searches it undertook to identify information that fell within the scope of the applicant’s access request is found in Statements made by Ms Alexandra Roberts who was the delegate of the agency who determined the application.

   65. In her Statement dated19 April 2023 Ms Roberts states, relevantly:

…

1. I am the Data & Information Management Coordinator, Access to Information Officer, within the Customer, Information & Technology Services division of Wollondilly Shire Council (Council) …

2. As part of my role at Council, I am responsible for determining applications made under the Government Information (Public Access) Act 2009 (GIPA) …

3. On 19 January 2023, Ms Styles (Applicant) lodged an application for access to information … (Access Application).

…

Scope of search

1. In order to conduct reasonable searches of the records Council maintains, I used all of the resources that were reasonably available to me at Council.

2. I am fully aware of Council’s practice and procedures in storing and archiving material and the methods required and used to retrieve such material.

3. As the request related to matters of which I was not familiar with, I issued Request for Information – Certificate of Search Documents, to those persons within Council, who would have knowledge, involvement and who were named on the GIPA Application, to search and locate any information that feel (sic) within the scope of the application. This is part of the Council process. I consulted with:

a.   The General Counsel, and

b.   Senior Corporate and Governance Officer.

1. I spoke to all staff members to ensure they had a clear understanding of the scope of the application and the searches required as per the application. The searches involved searching of all records kept by Council.

2. Searches of the Council’s records were conducted by myself and other Council staff for information captured by the Application. Containers searched on TRIM included but were not limited to CM 12226-562. Supplier records in Authority were also searched.

3. In searching and requesting the searches, I ensure the use of the above identifiers provided by the Applicant, where (sic ‘were’?) used in searching.

4. Search terms/key words used to locate relevant information included:

a.   Lindsay Taylor Lawyers; and

b.   Sparke Helmore Lawyers; and

c.   Lynette Styles.

1. In searching and requesting the searches, it was confirmed that Bruce McCann (General Counsel) does not keep a billable hours spread sheet or keep time against each matter.

2. I inspected approximately (3) documents of information that were captured in the searches that I undertook

…

66. In her further statement dated 8 May 2023, Ms Roberts states, relevantly:

…

Submissions of the Applicant

1. I am aware that the Applicant has raised in her submissions served on Council in 27 April 2023, that in previous GIPA proceedings before the Tribunal, that a Schedule of withheld documents includes a document which states ‘WSC in-house Bruce McCann response from Sparke Helmore’, dated 1 June 2022.

2. As previously stated in my statement dated 19 April 2023, searches of the Council’s records were conducted by myself and other Council staff for information captured by the Application, Containers searched on TRIM included but were not limited to CM 12226-562. Supplier records in Authority were also searched. As a result of these searches, the information that Council held was provided to the Applicant upon payment of the processing fee.

3. On 8 May 2023, I again conducted a search of Council records, in relation to legal expenses for advise provided by Sparke Helmore to Wollondilly Shire Council relating to the Applicant.

4. I again used the search terms/key words to locate any relevant information:

a.   Sparke Helmore Lawyers

b.   Lynette Styles.

1. This search revealed no further documents were held by Council, other than what has been already provided to the Applicant, in relation to the ‘total legal expenses for advice provided to Wollondilly Shire Council by Sparke Helmore Lawyers identified in the July 2022 Notice of Decision Schedule ranging from 1 May 2022 to present date of the GIPA application in relation to Lynette Styles’,

…

1. The Applicant contacted me by email on 4 March 2022, requesting further information on ‘What involvement did Sparke Helmore have in dealing with a GIPA application’ and seeking a further ‘review [of] legal costs paid to Sparke Helmore Lawyers in compliance with my GIPA application’. This copy of this correspondence from the Applicant is annexed to my statement and marked “Annexure A’.

Contact with the Applicant

1. On the 9 March 2023, I sent an email response to the Applicant, indicating stating (sic):

“the invoice listed relates to privileged legal advice unrelated to the GIPAA, however as you had requested the total legal expenses for advice provided to WSC by Sparke Helmore Lawyers identified in the July 2022 Notice of Decision, this legal expense was provide (sic) and given the generic short description of “GIPAA” which has caused confusion”.

1. A copy of this email is annexed to my statement and marked as “Annexure B”.

2. On 9 March 2023, the Applicant replied to the above email, requesting the “date of the generic short description as you state”. I replied to this email on 9 March 2023, stating “invoice date was 31 March 2022”. A copy of these emails is annexed to my statement and marked “Annexure B.”

Conclusion

1. After conducting all reasonable searches, there are no further documents held by Council as requested by the Applicant (sic) what has been produced to her in response to her application dated 19 January 2023.

   67. Annexure B to Ms Roberts’ Statement of 8 May 2023 includes the following email exchange dated to 9 March 2023:

Good afternoon Lynette,

Invoice date was 31 May 2022

Kind regards

Alexandra

This indicates that the date of 31 March 2022 referred to in paragraph 15 of Ms Roberts’ second Statement is a typographic error. The date should have been specified as 31 May 2022.

68. The agency’s evidence in relation to the searches it conducted is, in summary:

1. A Request for Information – Certificate of Search Documents was issued to Council staff who had knowledge of and/or involvement in the matters within the scope of the access application,

2. consultation was undertaken with Council’s General Counsel (Mr McCann) and Senior Corporate and Governance Officer,

3. TRIM records were searched, including but not limited to container CM 12226-562,

4. Supplier records were searched,

5. the searches involved the use of the search terms “Lindsay Taylor Lawyers”, “Sparke Helmore Lawyers” and “Lynette Styles”,

69. With respect to information that falls within the scope of item 1 of the applicant’s access request a search for that information was repeated on 8 May 2023 and did not result in the identification of any additional record.

70. On their face, the searches carried out by the agency appear logical and fair to the applicant having regard to the scope of her request. The search terms used are derived directly from the applicant’s description of the information sought. ‘Supplier records’ were among those searched. I infer from this that accounts paid/payable were incorporated into that search, although that is not explicit in Ms Roberts’ description of the search and perhaps should have been. In any event this element of the search returned information responsive to the access request, indicating that legal service supplier information is contained in records of this kind. The two staff members most directly involved in the dispute that gave rise to the access request were consulted about the access request. Ms Roberts deposes to having used her specialist knowledge and understanding of the agency’s record keeping systems to design and implement the search method.

71. I am satisfied on these bases that the agency has discharged its onus of establishing that the searches it conducted were reasonable. I note that the applicant has not suggested that the search terms used by the agency were inappropriate or insufficient or that there were other repositories of information that ought to have been searched which weren’t.

72. The applicant’s contention that the number of attendances by Sparke Helmore Lawyers on the agency is inconsistent with the total amount billed to the agency up to and including 31 May 2022 deserves serious consideration. On first impression the amount billed is surprising having regard to the number of attendances and fees charged in the legal profession. However, Sparke Helmore Lawyers was only retained by the agency to advise it in relation to matters related to the cancellation of the book launch. That was an issue of relatively narrow compass. It is not inconceivable that the professional costs incurred in obtaining this advice were relatively modest, even if there were multiple attendances. The only real evidence of the scope of work conducted are the email exchanges listed in the schedule of documents provided to the applicant in response to her previous access request. Email attendances are at least capable of being brief (and therefore not to incur substantial attendance fees).

73. I note in this respect that the spreadsheet ‘short description’ column related to Sparke Helmore Lawyers is “GIPAA” which is inconsistent with the summary of that item “restriction on circulation of book …” Ms Roberts provides an explanation of this at paragraphs 12 and 13 of her Statement of 8 May 2023. The short description is an incorrect description of the ‘matter’ that gave rise to Sparke Helmore Lawyers’ engagement by the agency. The applicant can derive some comfort that this was the case from the fact that she has never dealt with Sparke Helmore Lawyers in the context of her GIPA matter(s). Lindsay Taylor Lawyers has acted for the agency in relation to those matters.

74. The applicant’s contention that there is no Sparke Helmore Lawyers’ cost identified in relation to the attendance dated to 1 June 2022 also deserves serious consideration. There is an unlikelihood that a professional service would be provided without a cost being incurred in relation to that service. The applicant’s access application was lodged with the agency on 19 January 2023, more than seven months after 1 June 2022. It is reasonable to expect that any invoice or other statement in relation to the professional service provided on 1 June 2022 would have been rendered on the agency by that date.

75. However, it is not inconceivable that no further cost was incurred in relation to the 1 June 2022 attendance to those billed up to and including 31 May 2022. The attendance was an email. On the evidence before me its scope is unknown. It may have been brief or merely iterative of the substance of an earlier attendance which had already been charged, not giving rise to a billable attendance. Ms Roberts’ evidence is emphatic that her searches would have returned information about any cost incurred in relation to that attendance if it existed.

76. In her further submissions filed on 11 May 2023 the applicant states:

1. The Applicant submits that the only way the Respondent can definitively prove that no further Sparke Helmore invoices exist is to provide a copy of the 31 May 2022 Sparke Helmore invoice to the Tribunal in closed session for consideration as to whether or not further invoices exist.

   77. With respect, I do not understand this submission. Viewing this invoice is unlikely to reveal anything about the attendance dated to 1 June 2023 which was an event that occurred after the date of the invoice.

   78. Having regard to these considerations, I am satisfied that the doubts arising from the amount of the bill and the absence of any bill in relation to the attendance on 1 June 2022 can be overcome. To reach any other conclusion would be tantamount to finding that further information within the scope of item 1 of the applicant’s access request is being deliberately concealed by the agency. That is an issue of an entirely different nature to the reasonableness of the search methodology. The evidence before me would not support such a conclusion.

   79. I also note that the agency has disclosed its costs of engaging Lindsay Taylor Lawyers in relation its defence in the Local Court matter. There is potential for public embarrassment arising from the release of that information. I therefore draw an inference that the potential for public embarrassment has not played a part in relation to the disclosure of the legal costs incurred in the engagement of Sparke Helmore Lawyers.

“All other legal expenses … in relation to receiving legal advice from solicitors … in dealing with matters concerning Lynette Styles” – item 4 of the access request

80. I am satisfied for the reasons stated above that the agency has discharged its onus of establishing that the searches it conducted for information that fell within the scope of the applicant’s access request were reasonable.

81. The only evidence that the applicant points to as indicating that other legal expenses were incurred from solicitors is Mr McCann’s advice to Ms Roberts on 23 January 2023 that she could consult with “Carlo’s colleague” (see paragraphs 53 and 54 above) in relation to the applicant’s access request. I note that the agency denies that Ms Roberts did so. But in any event, and assuming that “Carlo’s colleague” is a legal practitioner, if there was an attendance on the agency by “Carlo” or “Carlo colleague” on or after 23 January 2023 any cost incurred in relation to that attendance falls outside the scope of the access request which is delimited by the date of the application: s 53(1) of the GIPA Act.

82. The fact that Mr McCann attempted to refer Ms Roberts to Mr Zoppo’s colleague does not give rise to an inference that another firm of solicitors was also retained by the agency to deal with matters concerning the applicant because, as far as I can ascertain from the material before me, Mr Zoppo is an associate or employee of either Sparke Helmore Lawyers or Lindsay Taylor Lawyers. Any billable work he carried out for the agency on behalf of those firms before the applicant’s access request was made would be captured by items 1 to 3 of the access request.

The decision not to release information about Mr McCann and – item 4 of the access request

83. The applicant contends that items 10-12 and 14-26 of the schedule of documents the agency provided to her in response to her previous access request discloses that Mr McCann dealt with matters concerning her between 20 May 2022 and 1 June 2022. She also contends that Mr McCann instructed Lindsay Taylor Lawyers in relation to the Local Court matter from July to the end of November 2022 as is evident from a Lindsay Taylor lawyers Fee Ledger that was attached to the Notice of Motion the agency filed in the Local Court proceedings. On this foundation the applicant contends:

1. Based on the wording of Item 4, the applicant submits that it was within the Respondent’s power to provide a list of the in-house solicitors’ costs in dealing with matters concerning Lynette Styles by relevance to the Schedule itemising dates and subject matter relating to documents 10 to 26 between 20 May and 1 June, in addition to details provided on Lindsay Taylor Lawyers’ Fees Sheet …

2. The Applicant submits that working on the assumption that the Respondent’s solicitor earns $4,000 for a 35-hour week, and time spent dealing with Documents 10 to 26 between 20 May and 1 June on the Schedule of Documents, together with issuing instructions to Lindsay Taylor between 7 July and 29 November 2022, a reasonable figure for 140 hours work would be no less than $16,000.00

   84. When she determined the access request Ms Roberts interpreted item 4, insofar as it related to Mr McCann, as calling for information in relation to his “salary” and “employment details” that she determined was his personal information which required consultation with him in accordance with s 55 of the GIPA Act.

   85. The applicant contends that it was wrong of Ms Roberts to characterise her request as a request for Mr McCann’s personal information relating to salary and employment. As set out above she contends that Ms Roberts should have characterised the request as calling for “a list of the in-house solicitors’ costs in dealing with [her matters]” which is not personal information.

   86. In its submissions dated 9 May 2023 the agency accepts the applicant’s characterisation of her request, or arrives at that re-characterisation of it itself, and now says the correct and preferable decision in relation to item 4 of the access request insofar as it concerns the information called for in relation to Mr McCann is that this information is not held. I note however that the agency has not made any further determination of the access request to reflect this change of position.

   87. Having regard to the position of both parties, and the scope of the access request as it now presents, it must be accepted that item 4 did not call for Mr McCann’s personal information. The Table to s 14 3(a) consideration which was invoked to prevent the release of Mr McCann’s employment contract incorporating his terms and conditions of employment including salary thus falls away. The applicant does not seek the disclosure of that information.

   88. The issue that now presents is whether the agency held any information relating to Mr McCann’s work output that fits the description of the information sought by the applicant as explained by her in the extracts set out at paragraph 83 above.

   89. In her Statement dated 19 April 2023 Ms Roberts deposes to having consulted with Mr McCann and of being advised by him that he does not maintain “a billable hours spread sheet or keep time against each matter”. There is no unlikelihood about this evidence. Mr McCann is an in-house solicitor with a single ‘client’ being his employer and he works for a salary. He is not ‘charging out’ his services to clients who will pay him professional fees in relation to those services. That being the case, the agency’s contention that it does not hold the information the applicant seeks to obtain must be accepted.

   90. The applicant contends, in effect, that the agency should create this information by estimating the time Ms McCann worked on matters involving her and costing this as a proportion of the salary paid to him during the applicable periods. The agency contends that it has no obligation to do so having regard to the terms of s 75 of the GIPA Act.

   91. The agency’s contention must be accepted. An agency is not prevented from providing access to information by making and providing access to a new record of that information: s 75(1). In this case the agency did so by formulating a summary of its legal costs incurred in dealing with matters concerning the applicant. However, it is not required to make a new record of information held by the agency: s 75(2)(a). More particularly to the circumstances of this case, nor is it required to create new information by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency: s 75(2)(c).

   92. For the foregoing reasons the correct and preferable decision with respect to item 4 of the applicant’s access request is that this information is not held. The reviewable decision should be varied to reflect this.

Orders

93. For the foregoing reasons I make the following orders:

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.

**********

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: 25 July 2023