Walker v Roads and Maritime Services

[2019] NSWCATAD 177

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Walker v Roads and Maritime Services [2019] NSWCATAD 177
Hearing dates:	26 July 2019
Date of orders:	30 August 2019
Decision date:	30 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Blake AM SC, Senior Member
Decision:	The decision of the respondent made on 8 February 2019 that it holds no further documents relating to the design of the truck arrester bed in the Mona Vale Road East Upgrade Project is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – Freedom of Information - Government Information (Public Access) – setting aside of summons - considerations - access to information - adequacy of search
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Amos v Central Coast Council [2018] NSWCATAD 101 Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15] Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 Lonsdale v University of Sydney [2015] NSWCATAP 277 Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 MJ v Department of Education and Communities [2014] NSWCATAD 12 Robinson v Commissioner of Police [2014] NSWCATAP 73 Webb v Port Stephens Council [2018] NSWCATAP 224
Category:	Principal judgment
Parties:	Philip Charles Walker (Applicant) Roads and Maritime Services (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2019/00079096

REASONS FOR DECISION

Summary

1. The applicant, Philip Charles Walker, seeks an administrative review pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) of the decision of the respondent, Roads and Maritime Services, made on 8 February 2019 that it holds no further documents relating to the design of the truck arrester bed in the Mona Vale Road East Upgrade Project (the Decision).

2. I am satisfied that the correct and preferable decision is that the respondent holds no further documents relating to the design of the truck arrester bed in the Mona Vale Road East Upgrade Project. Accordingly, I affirm the Decision.

Background

The respondent

3. At all relevant times the respondent has been an “agency” within the meaning of the GIPA Act.

The Mona Vale Road East Upgrade Project

4. The Mona Vale Road East and West Upgrade Projects are a series of works undertaken by the respondent, currently under construction, to widen Mona Vale Road from two to four lanes at particular points. These projects are intended to alleviate peak hour traffic on the road. The chronology for the Mona Vale Road East Upgrade Project, which includes the construction of a truck arrester bed, is set out in paragraphs [5] to [14] below.

5. On 11 February 2014, the respondent commenced design work. The initial design included a truck arrester bed located next to the eastbound lane approaching Walana Crescent, near the bottom of the steep decent on Mona Vale Road, adjacent to the Mona Vale General Cemetery. This is the previous location of the truck arrester bed.

6. On 12 March 2015, a Safety Audit was completed on the initial design.

7. On 30 September 2015, in response to concerns raised by the community and the Safety Audit regarding the location of the truck arrester bed, the respondent decided to move the arrester bed to its current location 300m further west, up Mona Vale Road next to the eastbound lane.

8. In October 2015, Mr Richard Hine (Mr Hine), who was then the Project Manager for the Upgrade Project, moved to another position within the respondent.

9. In December 2015, planning approval for the Upgrade Project, including the new truck arrester bed location, was given.

10. On 4 December 2015, Aurecon Australasia Pty Ltd (Aurecon) was hired by the respondent as a third party design consultant responsible for detailed design work on the Upgrade Project, including the truck arrester bed in its current location.

11. In January 2016, Mr Velmurugu Mathivanar (Mr Mathivanar) took over the management of the Upgrade Project.

12. In early 2016, Mr Geoff Cahill (Mr Cahill), who was the initial Project Manager of the Upgrade Project in 2013, and to whom Mr Hine had reported, moved to another position.

13. On 11 October 2016, a Safety Audit on the design by Aurecon was completed.

14. On 22 November 2018, final design drawings were issued by Aurecon, including for the truck arrester bed in its current location. No changes have been made to the design of the truck arrester bed since that time.

The access application

15. On 18 January 2019, the respondent received an access application from the applicant pursuant to the GIPA Act requesting access to the following documents (the access application):

16. All information (initially as a list), regarding the design of the truck arrester bed for the Mona Vale Road East Upgrade, specifications and design calculations, and internal correspondence for the "PV" Arrester Bed.

17. On 8 February 2019, the respondent made the Decision and provided to the applicant Documents 1 to 6 referred to in the Decision, which relevantly provides:

2 Searches for information

2.1 Under the GIPA Act we must conduct reasonable searches to locate the government information for which you have applied. The following areas of this agency have conducted searches:

• Technical and Project Services Division

• Sydney Division, North West Precinct

2.2 Information has been identified as falling within the scope of your application. The searches were conducted on the Objective document management system.

3 Decision

3.1 I am authorised by the Principal Officer, for the purposes of section 9(3) of the GIPA Act, to decide your access application.

3.2 Please see below a summary of my decision:

Doc. Ref.	Information	GIPA Act ref.	Access
Document 1 Page 1 - 8	Design report for existing truck arrester bed - Thunderbolts Way - background material	Section 58(1)(a)	Full
Document 2 Page 9 - 10	Internal email - urban design principles – 21 August 2014	Section 58(1)(a)	Full
Document 3 Page 11 - 22	Road safety audit report - 12 March 2015	Section 14, Table clause 3(a) and (b)	Partial
Document 4 Page 23 - 32	Internal Memo - design changes – 30 September 2015	Section 14, Table clause 3(a) and (b)	Partial
Document 5 Page 33 - 62	Road safety audit report - 11 October 2016	Section 14, Table clause 3(a) and (b)	Partial
Document 6 Page 63 - 69	Final design drawings - 26 November 2018	Section 58(1)(a) and 59(1 )(a)	Full
N/A	Decision and further concept design drawings available at: .au/projects/sydneynorth/ mona-vale-road/index. htmI	Section 58(1)(c)	Publicly available

Additional material provided to the applicant

18. On 16 April 2019, the respondent provided to the applicant an additional document titled "PV-2004" (Document 7), which consists of a technical drawing.

19. On 13 May 2019, the respondent provided to the applicant a further 3 documents, titled "PV-2005" (Document 8), "PV-2045" (Document 9), and "PV-2055" (Document 10). These also consist of technical drawings from the same drawing set as Document 7.

20. On 17 June 2019, the respondent provided to the applicant two pages of handwritten calculations pertaining to the truck arrester bed for the Mona Vale Road Upgrade Project (Document 11).

21. On 23 July 2019, the respondent provided to the applicant a further 2 documents, being the correct attachment to Document 2 (Document 12) and extracts of the design calculations for the arrester bed as set out in the Detailed Design Report dated 15 September 2017 of Aurecon (Document 13).

Procedural history

22. On 12 March 2019, the applicant commenced proceedings 2019/00079096 in the Tribunal against the respondent by lodging an administrative review application form (the application) in which he relevantly seeks a review of the Decision on the following grounds:

1. No Specifications and Design Calculations for 'PV' Arrester Bed.

2. No Internal Correspondence for 'PV' Arrester Bed.

3. Redaction in Document 5 Table 3.4 & 3.5 (page 45) Table 4.1 (page 48, 50, 53, 54, 55, 56, 57, 58, 59.)

23. On 16 April 2019, the applicant at a case conference advised the Tribunal and the respondent that he was no longer pressing ground 3 in the application.

24. On 18 July 2019, the Tribunal at the request of the applicant issued a Summons to each of Mr Hine and Mr Cahill to attend and give evidence on 26 July 2019.

The hearing

25. The hearing, which was held on 26 July 2019, was conducted in two parts. The first part dealt with the respondent’s objection to Messrs Hine and Cahill giving evidence. The second part dealt with the administrative review of the Decision. The applicant confirmed that he was no longer pressing ground 3 in the application.

26. The applicant did not tender any written evidence or give any oral evidence.

27. The respondent tendered the following written evidence:

1. a bundle of documents which included the Decision and the documents provided to the applicant on 8 February 2019;

2. a bundle of documents which comprised the further documents provided to the applicant between 16 April 2019 and 17 June 2019;

3. the two documents provided to the applicant on 23 July 2019;

4. the affidavit of Mr Mathivanar affirmed on 20 June 2019;

5. the affidavit of Andrew Jedniuk (Mr Jedniuk) affirmed on 20 June 2019;

6. the witness statement of Mr Mathivanar dated 23 July 2019;

7. the witness statement of Mr Jedniuk dated 23 July 2019.

28. Messrs Mathivanar and Mr Jedniuk gave oral evidence.

29. The applicant relies on his written submissions dated 16 July 2019 (the applicant’s 16 July 2019 submissions).

30. The applicant also made oral submissions.

31. The respondent relies on the following written submissions:

1. outline of submissions dated 20 June 2019;

2. outline of submissions in reply dated 23 July 2019;

3. the letter dated 23 July 2019 from the Crown Solicitor’s Office to the Tribunal.

32. The respondent also made oral submissions.

The evidence of the respondent

The affidavit of Mr Mathivanar

33. In his affidavit affirmed on 20 June 2019, Mr Mathivanar has dealt with the matters set out in in paragraphs [33] to [38] below.

Position at the respondent

34. Since January 2016, he has been contracted to the respondent as a Project Manager in the Greater Sydney Project Office and his duties in that position have included managing the detailed design for the Mona Vale Road East Upgrade Project.

Searches

35. On 21 January 2019, he was asked by the Director of the Greater Sydney Project Office to conduct a search in response to the access application.

36. On 23 January 2019, he undertook a search of the respondent’s records, particularly for information relating to the design of the truck arrester bed in the Upgrade Project. All the files for the Upgrade Project are meant to be stored electronically in "Objective", which is the respondent’s document management system. Key emails relevant to the Upgrade Project are also stored on Objective and in personal Outlook inboxes. He identified two areas places in Objective that were most likely to hold information responsive to the access application. The first area was the "Detailed Design" sub file for the Upgrade Project; and the second area was the files held by the Engineering Design Team's Upgrade Project file. The "Detailed Design" sub file contains all the drawings, specifications, safety audit reports and design reports relating to the Upgrade Project including those for the truck arrester bed. He identified two sets of drawing packages that contained design details for the truck arrester bed. These were the "RD" package which includes the geometric design for the road alignment including the gradient, length and bearings of parts of the road, including the truck arrester bed. The other drawing package was the "PV" package, referring to the pavement package. This includes design details such as the composition of the road pavement and its structure, including for the truck arrester bed. He selected the latest versions of drawings from the RD and PV packages that related to the design of the truck arrester bed. This search took him around 6 hours.

37. On 22 January 2019, he asked Mr Jedniuk to undertake a search of the Engineering Design Team's Upgrade Project Objective file.

38. On 23 January 2019, he, in consultation with Mr Jedniuk, reviewed and identified those documents returned by Mr Jedniuk that were responsive to the access application.

39. He believes that the searches undertaken by Mr Jedniuk and himself incorporated every part of the Upgrade Project Objective file that was likely to contain material related to the truck arrester bed.

The witness statement of Mr Mathivanar

40. In his witness statement dated 23 July 2019, Mr Mathivanar has dealt with the matters set out in in paragraphs [40] to [46] below.

Design calculations - third party searches

41. On 1 July 2019, he asked Aurecon to undertake a search of their records for any calculations relating to the truck arrester bed. Aurecon informed him that they undertook a search term search of their records and this resulted in 45 hours’ of searches. The respondent must pay their consultants for these search requests.

42. On 18 July 2019, Aurecon informed him that, after filtering through their records they concluded that their calculations for the design of the arrester bed are detailed and discussed within their Detailed Design Report for the Upgrade Project dated 15 September 2017. This document is over 1800 pages. Only parts of it relate to the arrester bed.

Internal correspondence

43. On 16 July 2019, he undertook a word search of his Outlook email folder for the Upgrade Project. He used the term "arrester bed". No results were returned that were within the scope of the application and contained material that had not already been provided to the applicant.

Specifications - latest drawings provided to the applicant

44. No changes to the arrester bed design have occurred since the drawings provided to the applicant were issued.

Further searches

45. He believes that the search approach taken by the respondent is reasonable and the most efficient possible given the scope of the access application. Alternative search methods, such as search term searches of Objective, would be onerous and an unreasonable diversion of resources given the volume of material. For example, the Upgrade Project File on Objective contains over 10,000 records that contain the words "arrester bed".

46. To provide material relating to previous design and specifications of the truck arrester bed this would require a search of a total number of 3,437 drawings contained in 63 sets of drawings. An exhaustive search of these drawing sets would require a person to open each of the 63 sets and either manually scroll through the documents or do a search term search within the document. As the design of the truck arrester bed was only subject to minor changes since the start of the detailed design phase, a search of the previous drawings sets would likely produce more documents but these documents would not contain any new information to that already provided to the applicant.

47. If he were required to undertake a search of the respondent’s records that are not contained in Objective, it would involve a search of the hard drives and Outlook folders of every person, being at least eight people most of whom have moved on to other sections of the respondent, who worked on developing the design part of this project at the respondent from 2014. This search would be extremely onerous, involve significant time and resources from many people who are no longer working on the Upgrade Project, and would be extremely unlikely to produce any material not held in Objective that would fall within the scope of the access application.

The oral evidence of Mr Mathivanar

48. In cross-examination, Mr Mathivanar relevantly said:

1. the detailed design of the truck arrester bed commenced at the beginning of 2016;

2. no calculations for the design of the truck arrester bed were done by the respondent for the Services Brief provided to prospective tenderers. The successful tenderer would do these calculations;

3. no calculations for the design of the truck arrester bed were done by the respondent for the concept design drawings.

The affidavit of Mr Jedniuk

49. In his affidavit affirmed on 20 June 2019, Mr Jedniuk has dealt with the matters set out in in paragraphs [49] to [53] below.

Position at the respondent

50. Since 8 May 2019, he has been employed as Acting Manager of Road Design with the respondent and this position includes responsibilities relating to the Mona Vale Road Upgrade Project.

Objective document management system

51. He is familiar with the Engineering Design Team's Objective file for the Mona Vale Road Upgrade Project which mostly includes project documents up to December 2015, but also includes some project documents after that date. The Project file consists of two sub-files: a "Standard File" and a "Drawing Set" file.

52. The Standard File contains all the emails, PDFs and technical project documents. The Drawing Set file contains the drawings and sketches for the design of the Mona Vale Road Upgrade Project.

Searches

53. On 22 January 2019, Mr Mathivanar asked him to undertake a search of his team's documents in response to the access application and to look for any information relating to the truck arrester bed on the Mona Vale Road Upgrade Project. He undertook a keyword search for "truck arrester bed" in the Standard File and the Drawing Set file of the Mona Vale Road Upgrade Project folder in Objective. He also undertook a search of the emails contained in the Objective file for the Road Design Team.

54. On 22 January 2019, he sent to Mr Mathivanar 21 documents that he found as the result of the search which took him several hours to complete.

The witness statement of Mr Jedniuk

55. In his witness statement dated 23 July 2019, Mr Jedniuk has dealt with the matters set out in in paragraph [55].

The start of the Mona Vale Road East Upgrade Project

56. There are no records pertaining to the truck arrester bed, in either location, in the Mona Vale Road East Upgrade Project before 11 February 2014, which was when this Project was initiated.

The oral evidence of Mr Jedniuk

57. In cross-examination, Mr Jedniuk relevantly said:

1. he is not aware of the design report of Aurecon;

2. he is not aware of the Services Brief provided to prospective tenderers or any calculations in it for the design of the truck arrester bed;

3. he has not done detailed design drawings of the truck arrester bed;

4. the concept design report was prepared before and amended as a result of the Safety Audit completed on 12 March 2015.

Jurisdiction

58. The Tribunal has jurisdiction to review the Decision under s 100 of the GIPA Act which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): ADR Act, ss 9 and 63 read together with s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). The Tribunal may affirm the decision: ADR Act, s 63(3)(a). The agency has the burden of establishing to the Tribunal that the decision it made is justified: GIPA Act, s 105.

The issues

59. During the first part of the hearing I considered the issue of whether, and determined that, the Summons to each of Messrs Hine and Cahill to attend and give evidence should be set aside. I indicated that I would provide reasons in my reasons for decision.

59. The following issues arise for decision in undertaking an administrative review of the Decision:

1. what is the scope of the access application;

2. whether there are reasonable grounds to believe that the requested documents exist and are documents of the respondent;

3. whether in all the circumstances the search efforts made by the respondent to locate the requested documents have been reasonable.

Relevant legislation

GIPA Act

61. The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s 3(1)(a)), giving members of the public an enforceable right to access to government information (s 3(1)(b)), and restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object (s 3(2)(a)), and that the discretions conferred by the GIPA Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information (s 3(2)(b)).

62. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles in s 15, including the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account (s 15(c)).

63. Part 4 Division 3 (ss 51-56) deals with the process for dealing with access applications. 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: s 53(1). The agency’s searches must be conducted using the most efficient means reasonably available to the agency: s 53(2). 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: s 53(3). An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources: s 53(5).

64. Part 4 Division 4 (ss 57-63) deals with deciding access applications. An agency may decide an access application for government information by deciding that the information is not held by the agency: s 58(1)(b).

65. Part 5 Division 1 (ss 80-81) deals with reviewable decisions. A decision of an agency in respect of an access application that government information is not held by the agency is a reviewable decision: s 80(e).

CAT Act

66. Part 4 Division 1 (ss 35-38) is an introduction to the practice and procedure of the Tribunal. Section 36 which sets out the guiding principle to be applied to practice and procedure relevantly provides:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

…

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

Whether the summons to each of Messrs Hine and Cahill to attend and give evidence should be set aside

The submissions of the respondent

67. The respondent made the following submissions:

1. the respondent is entitled to choose how it will present its case;

2. the two summonses lack any legitimate forensic purpose and are inconsistent with the guiding principle in s 36 of the CAT Act;

3. in his applications for summons to be issued, the applicant has provided no reason why Mr Cahill and Mr Hine ought to be called or what evidence they might give that cannot be given by Mr Jedniuk or Mr Mathivanar.

The submissions of the applicant

68. The applicant made the following submissions:

1. the previous project managers and teams need to be consulted, including Mr Cahill, who was the initial Project Manager in 2013, and Mr Hine;

2. as to Mr Cahill, “he might be able to help to locate information held”;

3. as to Mr Hine, who held the position of Project Manager before Mr Mathivanar, “he could assist with location of where calculations located”.

Consideration

69. The Appeal Panel of the Tribunal addressed the issue of a summons to attend and give evidence in proceedings for an administrative review under the GIPA Act in Lonsdale v University of Sydney [2015] NSWCATAP 277 at [32]-[34]:

32 It is clear law that no party has property in a witness of fact or in an expert witness (see, e.g., Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384-5 per Lord Denning MR). Allowing the respondent to summons witnesses (whether to produce documents or to attend) who belong to the staff of the agency (or, in a case of the present type, third parties with whom the agency has business relationships) has the potential to subvert the agency’s ability to present its case, and introduce into the process persons who it could have called, but has chosen not to call. There would, we think, need to be strong reasons for allowing a summons to proceed to issue in those circumstances. There must be clarity as to the forensic purpose served by such a step. It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review (including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise.

33 It would, we think, ordinarily not serve any legitimate forensic purpose to allow a review applicant to call witnesses who are bound by the agency’s position (its officers) or who support that position (the third parties). Those persons would often have knowledge of the content of the documents for which protection is sought, and there is a real danger that proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information. There might be a need to deal with hostile witness submissions. This all has the potential to make the proceedings more prolix.

34 Decisions allowing the issuance of summonses should be mindful, we think, of the emphasis in the NCAT Act on the adoption by the Tribunal of practices that facilitate the just, quick and cheap resolution of the ‘real issues’ in proceedings (s 36(1), the guiding principle), and ‘are proportionate to the complexity of the subject-matter of the proceedings’ (s 36(4)).

70. I was satisfied that the principles in Lonsdale v University of Sydney at [32]-[34] should inform the consideration of whether a summons to attend and give evidence in proceedings for an administrative review under the GIPA Act should be set aside. I was also satisfied that the summons to each of Messrs Hine and Cahill to attend and give evidence should be set aside for the following reasons:

1. the applicant did not identify an adequate forensic purpose for their evidence;

2. it would compromise the way in which the respondent was conducting the case;

3. their evidence would be inconsistent with s 36(1) and (4) of the CAT Act in view of the absence of any involvement of Mr Hine, and the minimal involvement of Mr Cahill, in the relocated truck arrester bed.

What is the scope of the access application?

The submissions of the applicant

71. The applicant makes the following submissions:

1. this review is about the “Calculations, Specifications and Correspondence for the Design of the Truck Arrester Bed, part of the Mona Vale Road East Upgrade”;

2. the respondent failed to find any Information requested for “the Design Calculations of the relocated Arrester Bed, the initial Arrester Bed or any Design Work checking the Safety of the Arrester Bed”.

The submissions of the respondent

72. The respondent makes the following submissions:

1. the applicant has adopted an overly broad construction of the scope of the access application in the following ways:

1. the terms of the access application refer to "internal correspondence" not "Correspondence" as the applicant now contends;

2. there is no reference in the access application to "Design Work checking the Safety of the Arrester Bed";

3. there is no reference in the access application to an "initial Arrester Bed" and a "relocated Arrester Bed";

2. the access application should be understood as relating to the design of the truck arrester bed in its current form and location only. Further, the material requested from the respondent is limited to the categories of "design calculations", "specifications" and "internal correspondence" relating to the design of the truck arrester bed.

Consideration

73. I accept the evidence of Mr Mathivanar that no calculations for the design of the truck arrester bed were done for the Services Brief provided to prospective tenderers, and that no calculations for the design of the truck arrester bed were done for the concept design drawings.

74. In these circumstances, it is unnecessary to determine the scope of the access application because none of the requested documents could have existed before the decision was made to relocate the truck arrester bed in September 2015.

Whether there are reasonable grounds to believe that the requested documents exist and are documents of the respondent

The submissions of the applicant

75. The applicant in the applicant’s 16 July 2019 submissions makes the following submissions:

19. …, the filing of work documents into 'objective' is not automatic. It is an active process. Decisions are made to include files in 'objective', or not to include. Files may or may not be included in 'objective'.

20. Thus 'objective' is a selective record only of an Agency's Activities.

…

22. In the RMS in 2011 both the East Upgrade & 'objective' were in their early days, so it may well be that documents were not transferred to 'objective'.

23. A Truck Arrester Bed is included in the Approved Construction Plans for the East Upgrade. Someone has Designed it. Someone has carried out the Design Calculations.

24. Yet the Project Manager from 2016, using 'objective', cannot find the Information. And the lead Road Designer from 2013, using 'objective', cannot find the Information.

25. The Applicant submits that 'OBJECTIVE' CAN NOT BE RELIED ON to hold all the Information. Files outside 'objective' need to be searched.

The submissions of the respondent

76. The respondent makes the following submissions:

1. other than challenging the respondent's decision to limit aspects of its internal search to its document management system, Objective, the applicant has raised no grounds on which it can reasonably be argued that further requested documents exist;

2. the applicant has failed to discharge his "practical onus", and unless and until this onus is discharged, the respondent has no case to answer and is not required to prove the reasonableness of its search.

Consideration

77. This approach of the Tribunal undertaking an administrative review of a decision that government information is not held by the agency is that answers are required to two questions – first, whether there were reasonable grounds to believe that the requested documents exist and are documents of the agency; second, if so, whether the search efforts to locate the documents had been reasonable in all the circumstances of the case: Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18]-[19].

78. The Appeal Panel of the Tribunal addressed the application of s 105 of the GIPA Act concerning the burden on the agency to justify its decision that it does not hold information in Webb v Port Stephens Council [2018] NSWCATAP 224 at [37] where it agreed that the correct approach is explained in Amos v Central Coast Council [2018] NSWCATAD 101 at [39]:

39 The burden of establishing that the implicit decision that the Council does not hold information is justified lies on the Council: GIPA Act, s 105(1). The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O’Connor remarked that an applicant “must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material].” These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a “practical onus” to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent’s legal onus to justify its decision under s 105 of the GIPA Act.

79. The Tribunal has applied the principle that it is not enough for an applicant to base the assertion on a deep-seated distrust of the agency: Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69].

80. I accept the evidence of Mr Mathivanar that Aurecon as the successful tenderer for the Upgrade Project did the calculations for the design of the truck arrester bed and that the respondent did not do any such calculations.

81. I am not satisfied that the applicant has put before the Tribunal any credible material or submissions that there is an arguable case that the respondent holds any information of the kind specified in grounds 1 and 2 of the application exists. The applicant’s submission that the document management system Objective is a selective record of the respondent’s activities for the Upgrade Project is unpersuasive in the light of the evidence of Mr Mathivanar that Aurecon, and not the respondent, did the calculations for the design of the truck arrester bed. Accordingly, I am not satisfied that the applicant has fulfilled the practical onus to establish the existence, or possible existence, of the further requested information.

Whether in all the circumstances the search efforts made by the respondent to locate the requested documents have been reasonable

82. If, contrary to my finding, the applicant did fulfil the practical onus to establish the existence, or possible existence, of the further requested information, then the issue arises as to whether in all the circumstances the search efforts made by the respondent to locate the requested documents have been reasonable.

The submissions of the applicant

83. The applicant in the applicant’s 16 July 2019 submissions makes the following submissions:

27. The Applicant Submits EARLIER VERSIONS OF PLANS & FILES need to be searched.

…

29. The Applicant Submits SOURCES OUTSIDE RMS need to be consulted, Contract Road Designers, and Consulting Engineers.

30. Prior to January 2016, there were previous Project Managers & Teams.

31 .The Applicant Submits PREVIOUS PROJECT MANAGERS AND TEAMS need to be consulted, including MR. GEOFF CAHILL the initial Project Manager in 2013.

84. The applicant made the following oral submissions:

1. the obligation of an agency to undertake searches in s 53 of the GIPA Act must be interpreted in the light of the its object in s 3(1)(a) and (2)(a). As indicted by s 15(c), the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account;

2. as design is a basic part of the respondent’s functions, it cannot involve a substantial and unreasonable diversion of resources to undertake additional searches;

3. the search efforts must match the seriousness of the request to be reasonable. As the truck arrester bed is the main safety feature of the Upgrade Project, additional searches are required to be reasonable;

4. “reasonableness is not how low you can go, but how high you can go”;

5. a word search of Objective is inadequate because there must be design calculations and correspondence. The evidence of Messrs Mathivanar and Jedniuk shows inadequate search efforts.

The submissions of the respondent

85. The respondent makes the following submissions:

1. the targeted searches undertaken by the respondent in response to the access application were reasonable because they were undertaken by Messrs Mathivanar and Jedniuk who had personal knowledge of the Upgrade Project that allowed them to determine the most efficient means of locating the requested information;

2. the extensive review of records held by Aurecon are comprehensive and conclusive;

3. its search for material using the methods described by Messrs Mathivanar and Jedniuk is the only reasonable means of retrieving relevant information in circumstances where the truck arrester bed forms only a small part of a large construction project.

Consideration

86. The Appeal Panel of the Tribunal considered the searches for information held by an agency required by s 53 of the GIPA Act in Robinson v Commissioner of Police [2014] NSWCATAP 73 at [26]-[27]:

26 It will be seen that s 53 commences by confining limiting the agency's obligation to respond to a request to information held by it at the time of receipt of the request (sub-s (1)).This protection against having to look for information once held but no longer in the primary systems of the agency is buttressed by sub-s (4), which makes it unnecessary for the agency to search electronic back-up systems (subject to narrow exceptions).

27 Importantly, sub-s (2) states that the agency 'must undertake reasonable searches as may be necessary' to find the requested information, and must do so 'using the most efficient means reasonably available to the agency'. The latter obligation is amplified by the obligation imposed by sub-s (3). As already noted, sub-s (4) protects the agency from having to make searches of electronic back up systems. Sub-s (5) contains the important qualification that searches that involve a 'substantial and unreasonable diversion of resources' need not be undertaken.

87. The Tribunal has applied the following principles in considering the reasonable of searches undertaken by an agency:

1. what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30];

2. that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15];

3. the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28].

88. I accept the evidence of Messrs Mathivanar and Jedniuk as to the searches undertaken for the requested documents, and as to work that would be required in undertaking additional searches.

89. I do not consider that s 15(c) of the GIPA Act is relevant to the interpretation of s 53. While I agree that that the GIPA Act be interpreted and applied so as to further its object, I disagree with the applicant’s interpretation of reasonableness because it would ignore the qualification on the obligation of the agency in s 53(5). The interpretation contended for by the applicant that the obligation of the agency varies according to the seriousness of the request finds no support in the text of s 53. There is no criterion to enable an assessment of when a request should be characterised as serious.

88. I am satisfied that the searches that were initially undertaken by the respondent were reasonable, notwithstanding the subsequent provision of documents. Undertaking additional searches would involve a substantial and unreasonable diversion of resources of the respondent, and accordingly need not be undertaken.

The correct and preferable decision

91. I am satisfied that the correct and preferable decision is to affirm the Decision.

Order

1. The decision of the respondent made on 8 February 2019 that it holds no further documents relating to the design of the truck arrester bed in the Mona Vale Road East Upgrade Project is affirmed.

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

Registrar

Decision last updated: 30 August 2019