Templeton v Office of Environment & Heritage

[2016] NSWCATAD 312

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Templeton v Office of Environment & Heritage [2016] NSWCATAD 312
Hearing dates:	11 October 2016
Date of orders:	11 October 2016
Decision date:	11 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision that the information sought by the Applicant is not held by the Office of Environment and Heritage is affirmed.
Catchwords:	Government Information Public Access – scope of request - information not held by agency - sufficiency of search
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464
Category:	Principal judgment
Parties:	David Templeton (Applicant) Office of Environment & Heritage (Respondent)
Representation:	J Coghlan, (Agent for Applicant) M Moore (Agent for Respondent)
File Number(s):	1610140

REASONS FOR DECISION

1. This is an application for review of a determination by the Office of Environment and Heritage (“the OEH”) in relation to an access application by Mr Templeton (“the Applicant”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”).

2. Initially the OEH considered that the access application was invalid because the Applicant had not provided enough detail about the information he was seeking and because the determining officer believed that the information requested may have been covered by an earlier application.

3. The Applicant amended and clarified the scope of his request but the OEH determined that it remained invalid, as it was not possible to identify the requested information.

4. The Applicant sought external review through the Tribunal. At a case conference with Senior Member Lucy held on 26 April 2016 the Applicant agreed that the scope of the access application was to be amended and narrowed to a request for:

"All water quality reports 2004-2006 and correspondence related thereto, held by OEH. Records held by the Jenolan Caves Reserve Trust are excluded."

5. The application was remitted back to OEH for a decision to be made on or before 24 May 2016.

6. The decision in respect of the amended scope was made on 20 May 2016 by Dr Racho Donef, Senior Governance Officer, Privacy and Information Access. In his determination Dr Donef outlined the searches that he had undertaken and he explained:

As a result of this extensive search, I identified only one record, which, arguably, may be of marginal relevance to the modified request. Nevertheless, I downloaded this file and contacted the Department of Premier's and Cabinet. I understand that this record has already been provided to the JMA Parties. Yet, I decided to release the record again, in case a copy of the record cannot readily be located by the JMA Parties.

In summary, although a reasonable search has been undertaken, no government information falling within the scope of your application has been identified.

7. Dr Donef concluded:

Having regard to the above, I have today decided under section 58(1)(b) of the GIPA Act that the information sought is not held by OEH with the possible exception of the attached record, which I release under Section 75 of the GIPA Act.

8. A further case conference was held on 21 June 2016. The Applicant did not appear on that occasion and the matter was listed for dismissal on 5 July 2016. There was no appearance by the OEH on 5 July 2016. Mr Field appeared as agent for the Applicant and Deputy President Hennessy granted his request that the matter be reinstated. The Deputy President set a timetable for the further prosecution of the matter and listed the matter for hearing on 8 September 2016.

9. The matter was relisted at the request of the OEH and a further Directions Hearing was held on 16 August 2016. On that occasion I vacated the hearing date of 8 September, made directions for the filing of further material and listed the matter for hearing on 11 October 2016.

10. The Applicant subsequently filed a considerable amount of further material in accordance with the timetable. The OEH contends that the Applicant’s material does not reflect or refer to the amended scope of the access application.

11. At the hearing of the matter on 11 October 2016 Ms Coghlan appeared as agent for the Applicant and Ms Moore appeared for the OEH.

12. Ms Coghlan accepted that the scope of the access application had been narrowed as set out above. The matter therefore proceeded on the basis of the narrowed scope of the request. As noted, the narrowed scope excluded records held by the Jenolan Caves Reserve Trust (“the Trust”).

13. Ms Moore indicated that the OEH has no access to the Trust’s records. The Trust is a separate agency for the purposes of the GIPA Act. Whenever the OEH receives an application under GIPA for information that is held by the Trust, the OEH asks the Trust to search its records. In this particular matter, the OEH did not ask the Trust to search its records because the records held by the Trust are excluded.

14. As noted above, the narrowed scope of the request seeks all water quality reports 2004-2006 and correspondence related thereto, held by OEH. The OEH determination found that the agency does not hold any water quality reports. However Ms Coghlan submitted that there must have been some communications relating to those reports. She said that there were several independent reports prepared in relation to the water quality at Jenolan Caves. The Applicant seeks the correspondence in relation to those reports.

15. Following the hearing on 11 October 2016 I determined that the decision that the information that was requested is not held by the OEH was the correct one and therefore it should be affirmed. The Applicant has requested written reasons for that decision. These reasons are provided in response to that request.

The Issues before the Tribunal

16. The Applicant contends that other information should have been located. This raises the issue of the adequacy of the searches that were undertaken.

17. In my view this requires the Tribunal to determine whether the Respondent undertake reasonable searches for the requested information.

Applicable legislation

18. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

19. Section 58 of the GIPA Act provides:

58 How applications are decided

(1) An agency decides an access application for government information by:

(a) deciding to provide access to the information, or

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

(c) deciding that the information is already available to the applicant (see section 59), or

...

20. Pursuant to section 97(1) of the GIPA Act generally the onus is on the agency to justify its decision. Section 97(1) provides:

97 Onus on agency to justify decisions

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

...

Sufficiency of search

21. In Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 at paragraph [11] Isenberg JM applied the approach to sufficiency of search as had been applied under the Freedom of Information Act 1987 ("the FOI Act"). In doing so, she applied decision of Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. In Hemeon at paragraph [18], O'Connor DCJ adopted the Information Commissioner of Queensland’s approach to sufficiency of search issues as discussed in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. In Shepherd the Information Commissioner said at paragraph [19]:

[T]here are two questions which I must answer:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency …;

and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

22. I agree with that approach. In relation to the first limb of the test, it is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Camilleri at paragraph [13] citing Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 where O’Connor DCJ stated at paragraph [69]:

69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.

The OEH searches

23. As noted above, Dr Donef’s determination sets out the searches that were undertaken. The OEH submits that there are no reasonable grounds for thinking that other documents would exist. Ms Moore stated that the OEH Dr Donef's searches would have located memos, letters and file notes.

24. Ms Moore submitted that it could be expected that any file note about the investigation into water quality or any file that somehow related to one of these searched items, would be on the located files.

25. The searches that were undertaken used the words ‘Jenolan water quality’, ‘Jenolan Caves water quality’, ‘JCRT water quality’, ‘Department of Premier and Cabinet water’, ‘Department of Premier and Cabinet Jenolan Caves’, ‘Department of Premier and Cabinet Jenolan’, ‘DPC Jenolan’, ‘Department of Premier and Cabinet water’, and ‘DPC water and water quality’. Dr Donef then refined his final search to see if there was something held by the OEH.

26. Everything that was located was either information held by the Trust or was information already available to the Applicant. Some of the information has already been provided to the Applicant through his various previous GIPA applications about the water quality to the OEH and the Department of Premier and Cabinet.

27. Ms Moore reiterated that at the case conference on 26 April the Applicant had clearly stated that he had received everything that was held by the Trust and that he was only requiring information held by the OEH. Dr Donef’s searches did not locate any other information that falls within the scope of the request that is held by the OEH.

The Applicant’s position

28. The Applicant is to establish that it is reasonable to expect that the OEH would hold other information and to identify what that information it is.

29. Ms Coghlan stated that water quality reports were completed. There were reports that were done by the Jenolan Caves leaseholder. There were also reports prepared by experts on behalf of the Trust, and those reports were provided to the OEH. She submits that the OEH should have a copy of those reports and that related information is not excluded by the narrowed scope of this request.

30. The Applicant is seeking any documents in relation to those reports. For example correspondence, internal memos and file notes. Ms Coghlan stated that the Applicant has the expert reports but does not have the related information.

31. In regard to any searches that the OEH should have undertaken, Ms Coghlan suggested that searches could have been undertaken with respect to the relevant ministries that dealt with the water quality issue, for example the Prime Minister, Health Ministers, the relevant Member for Blue Mountains, the Member for Bathurst and the various relevant Ministers for the Environment. She stated that the Applicant had presumed that Ministerial documents would be held by OEH and not by the Trust because OEH is the overarching body and the Trust is small. He not been advised that the OEH did not hold the Ministerial papers and that is why he decided to continue with the application to the Tribunal.

32. In response to that suggestion Ms Moore submitted that files relating to that type of ministerial correspondence would be held by the Trust because it would have been their correspondence to the Minister. In any event, if the OEH held a ministerial correspondence file that dealt with water quality, it would have been captured by Dr Donef’s searches. Ms Moore referred to a number of Ministerial documents that were identified through those searches and they are all held by the Trust.

Discussion

33. It is common ground that the scope of the access application was narrowed at the case conference held on 26 April 2016. The Applicant agreed that records held by the Jenolan Caves Reserve Trust are excluded.

34. On the basis of what I have before me it is clear that this matter turns on a question of whether the searches that were undertaken by the agency were sufficient and reasonable.

35. The OEH relies on the decision by Dr Donef. In that decision Dr Donef outlined the searches that were undertaken. It seems to me that the efforts that were made by the agency to ascertain whether or not it holds the information that has been requested were thorough.

36. Ms Coghlan has identified other information that she contends would be expected to be held by the agency and which should have been located. This includes ministerial and other correspondence, internal memos and file notes. In my view, if that information is held by the OEH, it should have been captured by the searches that were undertaken. That being the case, it seems to me that there were reasonable and sufficient searches undertaken by the agency to find the information.

37. I am satisfied that the information that has been identified by the Applicant, but which has not been provided, is information that would be expected to be held by the Trust and therefore it is excluded from the scope of this request.

38. I cannot see that there would be any value in requiring the agency to conduct further searches. I do not think that it is likely that further searches would locate any additional information that is within the agreed scope of the request.

39. However, it is possible that a further request to the Trust would be successful in locating the additional information that the Applicant is seeking. As noted, information held by the Trust is outside the scope of this application.

40. That being the case, I think that the decision that the information that was requested is not held by the OEH is the correct one and therefore it should be affirmed.

Order

The decision that the information sought by the Applicant is not held by the Office of Environment and Heritage is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 January 2017