Watkinson v Western Sydney University

Case •

[2022] NSWCATAD 321

•

30 September 2022

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Watkinson v Western Sydney University [2022] NSWCATAD 321
Hearing dates: 25 July 2022
Date of orders: 30 September 2022
Decision date: 30 September 2022
Jurisdiction:Administrative and Equal Opportunity Division
Before: H Dixon SC, Senior Member
Decision:

(1) The decision under review is affirmed

Catchwords:

Administrative law – access to government information - requested material provided – no additional material held – searches – reasonable in all the circumstances – onus

Legislation Cited:

Administrative Decisions review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Davison v NSW Department of Education and Training [2013] NSWADT 25

Texts Cited:

None

Category:Principal judgment
Parties:

Trent William Watkinson (Applicant)

Western Sydney University (Respondent)
Representation:

Applicant (Self-represented)

Counsel:
M McGirr (Respondent)

Solicitors:
Bartier Perry (Respondent)
File Number(s): 2022/00078230
Publication restriction: Nil

The Application

  1. The Applicant applies for an external review pursuant to s 80 of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) of the decision of the Respondent (the University) made on 16 August 2021 and in respect of documents which he claims are held by the University and to which he says he has not been granted access.

  2. Broadly stated the grounds relied upon by the Applicant in his application as filed in the Tribunal, are that some material sought by him was not made accessible, some material was not in access format sought, there was some evidence that documents said by the University not to be held exists, and also an issue about the redaction of the contents of certain documents in respect of which access was provided.

  3. By letter dated 20 May 2022, and in opening submissions at the hearing of this application, the Applicant refined his claims as follows:

Matters of both form of access and missing/not held information are pressed within limited scopes, as follows:

1.   Provision of access, to direct copies of the original versions of those records specifically requested, that appears granted but not yet provided by the respondent, also being in the access format requested (i.e. DVD-R); or, if the records are in fact not held, clear formal communication of a decision by the respondent as to which of those specifically requested records to which access has been granted are not in fact held (if such is not already issued).

The records pertaining to this matter to which provision of access is requested are as follows:

a.   Allegation documents referred to as staff reports by Dr James Arvanitakis in an email I received from him on 5th June 2019 and created prior to 15th July 2019.

  1. The Applicant explained that his intention in paragraph 1a. was to capture all documents referred to as “staff reports” up to and including 15 July 2019. Documents in DVD-R format have, as the Tribunal understands the position, been provided to the Applicant.

  2. The scope of this review by the Tribunal is thus now of very narrow ambit.

Reviewable Decisions

  1. The Tribunal’s administrative review jurisdiction to review decisions of an agency made under the GIPA Act derives from s 100, read with ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and ss 7 and 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

  2. In respect of the reviewable decisions under the GIPA Act, Part 5 provides for a number of potential reviews of decisions of an agency in respect of an access application. Relevantly, s 80 sets out what are “reviewable decisions” for the purposes of the Part and includes in subsection 80(d) a decision to provide access, or to refuse to provide access to information in response to an access application.

  3. The Tribunal’s jurisdiction is not at large and, in respect of the current application, the Tribunal is confined to dealing with decisions that come within the scope of s 80, in particular, the decision of the University of 16 August 2021 specified in the Applicant’s application in respect of an access application made by him.

  4. Section 53 of the GIPA Act is also relevant to the current application for review:

53   Searches for information held by agency

(1)   The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2)   An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3)   The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonable available to the agency including resources that facilitate the retrieval of information stored electronically.

(4)   An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

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

  1. The burden of establishing that the decision under review is justified lies on the University (s 105 of the GIPA Act).

  2. The following provisions of the GIPA Act are also relevant to the current review:

75   Providing access by creating new record

(1)   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 toa new record of that information.

(2)   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 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.

76   Providing access to information not applied for

An agency is authorised to provide access to government information in response to an access application that is in addition to the information applied for, unless there is an overriding public interest against disclosure.

Material Before the Tribunal

  1. The material before the Tribunal consists of the following:

  1. A preliminary statement of 5 May 2022 and a statement by the Applicant dated 10 July 2022;

  2. An affidavit of the Applicant of 11 July 2022 with annexures;

  3. An affidavit of the Applicant of 20 July 2022;

  4. An affidavit of Sharon Flynn of 9 June 2022 with annexures on behalf of the University;

  5. An affidavit of Timothy Purdy with annexures on behalf of the University;

  6. The University’s written submissions of 10 June 2022;

  7. A copy of a letter of 20 May 2022 from the University to the Registry;

  8. An email from Dr Arvanitakis to Ms McLean dated 28 May 2019;

  9. An email from Ms McLean to Ms Aquilera dated 3 June 2019;

  10. An extract of a TAFE transcript of Academic Record of the Applicant certified on 8 December 2017; and

  11. A letter from the Solicitors for the University to the Registrar of the Tribunal of 17 May 2022.

Background

  1. On 28 May 2019 Dr James Arvanitakis, the Pro-Vice Chancellor (Research and Graduate Studies) at the University raised, with another University officer, the Company Secretary (Entities) and Associate Director (Secretariat) Office of Governance Services, Ms McLean and sought advice on, a potential misconduct complaint against the Applicant which had come to his attention.

  2. The email to Ms McLean then set out in summary from the potential misconduct of the Applicant which was of concern and which was to be investigated.

  3. On 3 June 2019 there was set in motion a process to investigate the allegation of misconduct which had so been raised against the Applicant.

  4. Shortly thereafter Dr Arvanitakis wrote to the Applicant by email dated 5 June 2019, the subject matter specified as “Potential student misconduct”. The email stated, amongst other things, as follows:

I have received reports of concern from staff recently about their interactions with you that I have considered as reports of potential student misconduct.

These reports will be forwarded to Angelo Kourtis, Vice President (People & Advancement) for consideration under the Student Misconduct Rule. You will receive formal correspondence from Mr Kourtis’ office shortly.

  1. The University then investigated the alleged misconduct. The Applicant participated in that process. On 15 July 2019 Mr Kourtis wrote to the Applicant dismissing the allegations as follows:

Dear Bill

STUDENT MISCONDUCT RULE

NOTICE OF DECISION UNDER CLAUSE 12

I am writing to advise you that in accordance with Part 3 of the University’s Student Misconduct Rule (“Rule”), I conducted a preliminary investigation of the following allegation of misconduct against you.

The allegation made against you is that you have engaged in conduct with University staff, both in person and by email, that has made those staff members feel concern for their welfare and/or safety.

In making my decision, I considered the following:

(a)   Email communications between yourself and staff from the Graduate Research School; and

(b)   Verbal reports provided by academics from the Graduate Research School.

I also note that you attended a meeting on 11 June 2019 to provide me with your response to the allegation. At that meeting, you denied the allegation.

Having considered all the evidence available to me, I have decided that:

The allegation cannot be sustained, and is dismissed. However, I do request that you attend a further meeting with me before the end of July 2019. My office will be in contact to confirm the date and time.

Thank you for your cooperation and patience in this matter.

I enclose a copy of the Rule for your information.

Please contact me if you have any questions.

Yours Sincerely,

  1. Accordingly, and as confirmed at the hearing, this application is now confined to what is described by the Applicant as the “allegation documents” referred to by Dr Arvanitakis in his email of 5 June 2019 for a period ending on 15 July 2019 as “staff reports”. The review is not concerned with an examination of the allegation of misconduct raised against the applicant for investigation. It is also not concerned with the particular document or documents which may, or may not, have influenced the decision maker in dismissing the alleged complaints. As will become apparent from what follows, the University’s position is that it has provided access to the relevant documents sought and it does not hold any further documents within the narrowed category specified by the Applicant in this review.

Applicant’s First GIPA Application

  1. On 31 May 2021, Ms Flynn, Manager of Records & Archives Management Services and Right to Information Officer at the University received an access application from the Applicant under Part 4 of the GIPA Act.

  2. In this access application, the Applicant requested the following information:

  1. Records of all emails sent to and sent from his student email account;

  2. If an archive of the email records sent to and sent from his student email account, or a part thereof, has been retained by the Complaints Resolution Unit in relation a complaint he submitted to the Complaints Resolution Unit on 12th February 2021 he requests a copy of those records;

  3. All information sent to his student TRIM account, student IDA: 19466936; and

  4. All documents provided to Mr Kourtis by Dr Arvanitakis intended to justify the allegation of student misconduct issued against the Applicant by Dr Arvanitakis on 5th June 2019. (I note that this appears to be the same category of documents the subject of the current proceeding.)

  1. In evidence given by Ms Flynn in these proceedings which is accepted she stated that the following searches and enquiries were then carried out:

  1. After concluding a preliminary review of the access application, Ms Flynn identified that the request submitted by the Applicant related to information that was held, or likely to be held, by the Complaints Resolution Unit (CRU), Digital Secretary, Security & Risk (DSSR), Dr Arvanitakis and Mr Kourtis. Ms Flynn decided to inform CRU, DSSR, Dr Arvanitakis and Mr Kourtis of the access application by email.

  2. On 18 June 2021, Ms Flynn received an email from Dr Arvanitakis confirming there were no emails between Mr Kourtis and himself regarding the Applicant.

  3. On 16 June 2021, Information Technology and Digital Services (ITDS) / DSSR provided Ms Flynn with the personal storage table file (.pst file) of the Applicant’s student email account.

  4. On 17 June 2021, ITDS / DSSR stated that the .pst file “…export should contain everything contained within the mailbox including sent items. If there isn’t any sent items included, likely there was nothing in the sent items folder at the time of extraction.”

  5. On 18 June 2021, Ms Flynn conducted various searches on TRIM using the Applicant’s name and student ID (SID). The results of those searches displayed the following TRIM folders relevant to the Applicant:

  1. Student file;

  2. Misconduct folder; and

  3. Complaints Resolution folder.

  1. On reviewing the documents, Ms Flynn observed that there was no direct correspondence between Dr Arvanitakis and Mr Kourtis. Ms Flynn did observe correspondence between Dr Arvanitakis and Ms McLean, and also between Ms McLean and Ms Aguilera (Munton). Ms Flynn’s understanding was that in her role as Assistant Director, Secretariat, Ms McLean coordinated the student misconduct investigation process, and that Ms Aguilera, as Executive Officer to the Vice President, People and Advancement, coordinated the correspondence.

  1. Ms Flynn’s testimony was further that:

  1. The TRIM student file is used as a central repository for records documenting a student’s time at the University. Records in the TRIM student file are accessible to most staff within the University. Other systems integrate with TRIM to capture forms submitted by the student and personalised emails sent out in bulk to large cohorts to advise of upcoming important dates and / or events.

  2. A TRIM student file enables University staff to respond to student requests and queries promptly by having the most current information in one place.

  3. University staff are able to capture email correspondence, including attachments, that are sent to students using the student’s official email address, to the student’s TRIM file by ‘cc or bcc’ to [email protected].

  4. Records of a sensitive or confidential nature, however, are not contained within the TRIM student file. Examples of sensitive or confidential emails include those with the subject matter relating to complaints, misconduct, or student support services.

  5. Sensitive or confidential emails can be managed outside of TRIM in other systems or within TRIM in separate ‘case files’ with access restricted to WSU staff with specific authority. These include the ‘student misconduct’ folder or ‘complaints resolution’ folder. These folders can be related to an individual student file.

  1. Ms Flynn said that on 22 June 2021, she collated all the information she obtained from the searches she conducted on TRIM. Once Ms Flynn had reviewed all information collected, she converted the emails in the .pst file, the contents of the TRIM student file, the misconduct folder and the complaints folder to PDF format.

  2. On 23 June 2021, Ms Flynn became aware that one of the documents in the Applicant’s misconduct folder named another student. On that same day, Ms Flynn decided to redact the student’s name from the document to protect the student’s identity.

  3. In these proceedings Mr Timothy Purdy, a Senior Security and Risk Analyst within the Information Technology and Digital Services (ITDS) of the University provided an affidavit in which he affirmed and it is accepted that:

  1. In mid-2021, he was requested by Ms Flynn to undertake the extraction of the Applicant’s entire student mailbox in response to an application submitted by the Applicant to the University under the GIPA Act;

  2. The contents of the extracted mailbox were then provided to Ms Flynn as a single .pst file;

  3. This is the method that Mr Purdy had used in the past to perform mailbox extraction;

  4. At the time of the extraction, Mr Purdy did not perform an analysis of the data extracted beyond validating that there was data, and it was accessible. Based on Mr Purdy’s experience, extractions using this method capture all messages within the mailbox at the point in time it was performed;

  5. Mr Purdy had no reason to believe that the extraction was not effective.

University’s First Internal Decision

  1. On 29 June 2021, Ms Flynn emailed the Applicant to notify him of the University’s decision in relation to his access application (the University’s First Internal Decision) and provided him with certain documents in response to his application.

  2. Ms Flynn sent the Applicant a link to download the documents via Cloudstor, a secure online cloud storage and transfer service used by the University.

Applicant’s Internal Review Application

  1. On 27 July 2021, the Applicant submitted an internal review application in relation to the University’s decision on 29 June 2021 pursuant to s 82(3) of the GIPA Act.

  2. The application of 27 July 2021 sets out in Appendix 1 in detail the particular aspects of the decision the Applicant sought to be reviewed which the Tribunal has had regard for. Relevantly, the application for internal review referred to the following three components:

1. Records of all emails sent to and sent from the Applicant’s student email account: [email protected].

3.   All information sent to the Applicant’s TRIM account, student ID: 19466936, and records of any amendments where possible (such as archived deleted records or records of deleted records).

4.   All documents provided to Mr Angelo Kourtis by Dr James Arvanitakis intended to justify the allegation of student misconduct issued against the Applicant by Dr Arvanitakis on 5th June 2019.

  1. On 17 August 2021, Ms De Paoli provided the Applicant with a Notice of Decision dated 16 August 2021 with the outcome of the Applicant’s internal review application (the University’s Second Internal Decision) which is now the subject of the Applicant’s review application to the Tribunal.

  2. The additional documents that were found as a result of the University’s Second Internal Decision were provided to the Applicant via Cloudstor on 17 August 2021.

  3. In her decision of 16 August 2021, Ms De Paoli recorded that she had decided under s 58(1) of the GIPA Act to provide access to certain information sought in the Applicant’s application. Those documents are set out in the Attachment to the decision.

  4. Ms De Paoli indicated in addition that she had decided under s 59(1)(b) of the GIPA Act, that some information was not held by the University, specifically:

  1. any and all emails sent from the Applicant’s student account (point 1 referred to at paragraph 28 above);

  2. records of any amendments to his student TRIM file, such as archived or deleted records or records of deleted records; and

  3. documents provided to Mr Kourtis by Dr Arvanitakis intended to justify the allegation of student misconduct issued against the Applicant by Dr Arvanitakis on 5 June 2019.

  1. The reference to s 59(1)(b) appears to be an error and should read s 58(1)(b).

  1. The decision then sets out in some detail the searches that were conducted by the University. The decision records that the full contents of the Applicant’s student file and separate misconduct file were retrieved from TRIM utilising the software’s reporting function to export the contents of each record within the files. The reporting function created an additional indexed summary including metadata and hyperlinks to the exported documents in their original form. This process ensured that the contents of the files had not been manually manipulated during the extraction process, unless otherwise indicated.

  2. The decision further recorded that the office of the Vice President, People and Advancement (VPPA) had confirmed that there had been no email correspondence between Mr Kourtis and Dr Arvanitakis pertaining to the 2019 misconduct allegation. However, the office did provide a copy of hand written notes during the student interview with the Applicant on 11 June 2019, stored in an archived notebook. Those notes had since been uploaded into the misconduct case file.

  3. The Office of the VPPA also provided an additional email that was sent to Mr Kourtis, the Office of Governance Services on 3 June 2019, outlining advice provided to Dr Arvanitakis about the handling of the misconduct case. That email too had been uploaded to the misconduct case file.

  4. As a result of this decision there was released to the Applicant for access the documents entitled Student Email Content up until 5 August 2021 and the content of the TRIM student file (the original file format exported from TRIM including indexed summary of files).

Review by Information and Privacy Commissioner

  1. On or about 12 October 2021 the Applicant submitted a request for review to the Information and Privacy Commissioner (IPC) pursuant to s 89 of the GIPA Act in respect of the University’s Second Internal Decision made on 16 August 2021 and detailed above.

  2. On 18 February 2022 the IPC review conducted under delegation by the Information Commissioner was published. The IPC reviewed the process adopted by the University to arrive at its 16 August 2021 decision and steps then taken to enable to Applicant to access information through its Cloudstor link. The report also noted concerns raised by the Applicant about the conduct of the University in conducting the review including the accuracy, reliability and potential deletion of information. The Report recorded that those were issues not dealt with in the review as they were not reviewable decisions under the GIPA Act.

  3. For the purposes of the IPC review the University was requested to provide information about the searches undertaken by it. The University provided information to the IPC to demonstrate the searches were conducted in its records management system (TRIM) and MS Outlook for:

  1. Student File and Misconduct Case File

  2. complete Record of Student (applicant) Email database

  3. electronically archived Student Folders containing: MS Office documents and Callista Student System files

  4. emails between Mr Kourtis and Dr Arvanitakis pertaining to the Applicant. This included searches of the mailboxes for Mr Kourtis and Dr Arvanitakis.

  1. The University advised the IPC and provided information to demonstrate that on external review:

  1. no information was found in relation to correspondence between Mr Kourtis and Dr Arvanitakis concerning allegations about the Applicant for the date range 1 May 2019 to 31 July 2019 (a wider period);

  2. in searching for a complete copy of the Applicant’s Student Email Account, the University’s Data Security and Risk logs confirmed the account was inactive from 12 May 2021 and that sent emails appeared to have been already deleted manually, not by the University, at the time of the extract on 9 August 2021.

  1. The IPC review recorded that the University had confirmed all records searched within the scope of the internal review request were provided to the Applicant. The University further noted to the IPC that the only information not provided was information withheld under public interest considerations against disclosure.

  2. The IPC, having reviewed the information provided by the University about searches and the terms of the Applicant’s access application was satisfied that the search terms used, and locations searched were responsive to identifying and locating the information sought by the Applicant and accordingly was satisfied that the University had demonstrated that its searches had been reasonable in all circumstances and that it had discharged its onus under s 53 of the GIPA Act.

  3. In this matter the following is thus of importance in respect of the access application the subject of review by the Tribunal:

  1. the documents sought by the Applicant are confined to documents exchanged in a relevantly short period in 2019, namely, some time prior to 5 June up to 15 July 2019;

  2. the documents the subject of the application are, as particularised by the Applicant, the documents referred to as staff reports in Dr Arvanitakis’ email of 5 June 2019;

  3. the relevant context in which the access application to the University of 27 July 2021 is to be viewed are the allegations raised by various members of the University concerning potential misconduct on the part of the Applicant;

  4. the allegations were investigated by the University and Mr Kourtis recorded that in coming to his decision he had considered email communications between the Applicant and staff from the Graduate Research School (and verbal reports provided by academics from the GRS);

  5. the allegation of misconduct was found not to be sustained and was dismissed.

  1. The email from Dr Arvanitakis of 28 May 2019 to Ms McLean initiating the investigation had an attachment described as “Bill Watkinson Email Compilation.docx”. The email stated that Dr Arvanitakis was seeking Ms McLean’s advice on the next steps in respect of a potential misconduct case, and he drew attention to the “attached documentation” and then provided a relatively short summary of the concerns which had been raised with him.

  2. On the evidence presented to the Tribunal in this review which I accept the University identified the email communications between the Applicant and staff, some 52 pages, (some of which contained some redaction) and also a separate copy of those pages in un-redacted form which come within the scope of material which could be considered as “Allegation Documents” and which have been provided to the Applicant. In addition, the University pointed to the email of 28 May 2019 from Dr Arvanitakis to Ms McLean and one from Ms McLean to Ms Aguilera of 3 June 2019 relating to the commencement of the investigation as information held and provided to the Applicant. A review of the contents of all those documents further support the conclusion that these are documents within the category sought.

Tribunal Directions

  1. On 9 May 2022 the Tribunal made an order requiring the University to inform the Tribunal and the Applicant in writing by 16 May 2022 whether it held any further information as identified in the Applicant’s preliminary statement of 5 May 2022 filed in the Tribunal. If the University did hold further information it was required to notify the Applicant whether access to that information was granted or refused.

  2. By letter dated 17 May 2022 the solicitors for the University wrote to the Registrar of the Tribunal and to the Applicant advising that they were instructed by the University that results of its searches and enquiries were that the University does not hold any of the additional documents referred to the Applicant’s preliminary statement filed in the Tribunal on 5 May 2022.

  3. The Applicant’s preliminary statement filed in the Tribunal on 5 May 2022 described the Applicant’s review in respect of the following categories of documents:

  1. Documents described as “Allegation Documents” material to the allegation of misconduct referred to above which are claimed not to have been made available;

  2. Documents described as “Student Emails”;

  3. Documents provided not in “Access Format”;

  4. Some redacted documents.

  1. It is clear that the Tribunal is now only concerned with the “Allegation Documents” and, as will appear from what follows, a very limited ambit of complaint within that category, namely, the form of email compilations which were attachments to correspondence or advice first at the commencement of the misconduct investigation and then during the reviews undertaken by the University.

  2. In her evidence during cross examination Ms Flynn described the process of extraction of documents from the various sources within the University as in no way manipulating individual documents extracted. The hyperlinks resulted in a link to documents brought across from a particular folder and there was no way of manipulating the content of the document. She described that the personal storage table (PST) contained multiple formats in original form capturing the documents as they existed in the email. She further described that access to the material held by the University such as the misconduct file was restricted.

  3. The central issue complained about in the Applicant’s review application of 27 July 2021 (the Second Application) concerning what was described as documents in category 4 (all documents provided to Mr Kourtis by Dr Arvanitakis “intended to justify the allegation of student misconduct issued against” him) by Dr Arvanitakis on 5 June 2019 is set out in the last two pages of Appendix 1 to that application. I have had regard to the full contents but do not set the complaints out here in detail.

  4. In summary, the Applicant complains that the information provided in response to his request appears to be not relevant to the documents requested or not relevant to “Dr Arvanitakis’ alleged justification for the allegation”; one particular document titled “Bill Watkinson Email Compilation _ Redacted.pdf” was said to have been created on 29 June 2021, 20 working days after the date the Applicant lodged his GIPA request; the document was presented as a compilation of emails but refers to emails that may or may not exist; there was no evidence that the document was received by Mr Kourtis in that form prior to it having been provided to the Applicant with redactions; and the document does not appear to provide evidence that the Applicant breached University policy.

  5. The Applicant claimed that he would like evidence that the email compilation document referred to in paragraph 54 is authentic and has not been created or edited in response to a complaint he made to the University in February 2021, or the GIPA request and so seeks a “certified copy” of the document as existed at the time of the misconduct allegation raised in the 5 June 2019 email to him.

  6. As will readily be seen a number of the complaints identified in Appendix 1 to which I have referred stray beyond the scope of the review by the Tribunal and the outcome which may be available pursuant to s 100(1) of the GIPA Act and s 63(1) of the ADR Act. As was pointed out in Davison v NSW Department of Education and Training [2013] NSWADT 25, the GIPA Act gives persons an enforceable right to seek access to ‘information’ ‘contained’ in a ‘record’ that is ‘held’ by the agency (ss 3, 4 and 41 and cl 12 of Schedule 4). “It is not a vehicle for seeking explanations of administrative decisions of a government agency, unless an explanation (the information) is contained in a record of the agency at the time the GIPA access request was made” (at [24] per Higgins DP).

  7. In relation to the particular document referred to at paragraph 54 above, the Applicant claims that the document was not released to him by Ms Flynn as she stated, but that a materially different redacted document “with similar content” was released to him. That document was given the ID D20/103314 in the materials provided by Ms De Paoli.

  8. The Applicant then proceeds by reference to the indexed summary files provided to him to complain that the document described as D20/103314 as “Bill Watkinson Email Complilation.docx” has not been provided to him but instead he received different PDF documents with similar file names.

  9. In the review decision of 16 August 2021 by Ms De Paoli she refers to the TRIM document D20/103314 in the indexed summary file thus:

Specifically, the indexed summary file titled: Watkinson Misconduct File includes a reference to TRIM Record D20/103314 (doc82633042.MSG). This MS Outlook file, both email and attachment have been resaved as separate PDF files and redacted in accordance with Section 4 of this report above. All other files provided are copies of records in their original format, at the date of creation, as found in my searches.

This appears to be a satisfactory explanation of how this document was created and the reason for doing so.

  1. The Applicant also complains that “correspondence released by the Respondent in response to the GIPA access application does not show evidence of which of my email communications with GRS staff Mr Kourtis might have received”. This complaint again strays beyond the scope of this review. The documents described as the “Allegation Documents” – staff reports – were provided to the Applicant even in circumstances where they were not directly within the scope of the access application as they were not provided by Dr Arvanitakis to Mr Kourtis.

  2. The University was not precluded from providing access to the information held by the agency by making and providing access to a new record of that information (s 75 of the GIPA Act). In addition, providing access to information even if not “directly” within the scope of the access application is expressly permitted (s 76 of the GIPA Act).

  3. The Tribunal is satisfied and finds on the basis of the evidence of Ms Flynn, Mr Purdy, the IPC report, the review by Ms De Paoli and the correspondence from the University’s solicitors that all documents within the category of staff reports have been provided to the Applicant and that the University does not hold any further documents in that category.

  4. The fact that Dr Arvanitakis in his email of 28 May 2019 attached a compilation of emails described as “Bill Watkinson Email Compilation.docx” and that subsequently, as part of the internal reviews, a compilation with similar content was provided by Ms De Paoli does not detract from that finding.

  5. The Tribunal is satisfied that Dr Arvanitakis did not provide any documents to Mr Kourtis and notwithstanding that, the University has provided documents which come within the description of ‘staff reports’ or “allegation documents” and were available to Mr Kourtis to consider after Dr Arvanitakis had set in motion the investigation in respect of staff reports that had come to his attention.

  6. Mr Kourtis did not identify in his emailed letter to the Applicant which particular document, or documents, he had regard for. However, that is not a matter within the scope of this review. Documents which come within the description of ‘staff reports’ had been provided to the Applicant as referred to at paragraph 47 above.

  7. Having reviewed the evidence of the Applicant outlined above and of the Respondent the Tribunal is satisfied and finds that the University has undertaken such reasonable searches as may be necessary to find all documents within the scope of Dr Arvanitakis’ email of 5 June 2019 and within the scope of Mr Kourtis’ letter emailed to the Applicant on 19 July 2019. The University has satisfied its onus in that regard.

  8. On the evidence of Ms Flynn, that of Mr Purdy and by reference to the IPC report the Tribunal is satisfied that the University’s searches extended to searches using any resources reasonably available to the University including resources that facilitated the retrieval of information stored electronically.

  9. On the evidence, and taking into account the advice from the University’s solicitors referred to at paragraph 49 above, the Tribunal is satisfied that the University does not hold any additional documents within the refined scope of this application, namely “Allegation Documents”. The Tribunal is satisfied that the University is not refusing to provide access to documents within this category in one form or another.

  10. Although it is not entirely clear on the evidence how the dates change on the saving or re-attachment of emails in compilation form, I consider that the evidence does not support a conclusion that the University would, or did, alter the contents of documents as complained of by the Applicant other than by redaction for the following reasons:

  1. the allegation that the University would act in this manner is a most serious allegation and would require reliable and probative evidence to support a finding to that effect and such evidence is, notwithstanding the efforts of the Applicant to identify different versions of documents, not before the Tribunal;

  2. there is hardly a motivation for such conduct on the part of the University in circumstances where the allegations against the Applicant raised for investigation were found to be not substantiated and were dismissed;

  3. the evidence before the Tribunal did not establish that the University in any way sought to recreate or edit documents with a particular, unknown, objective in mind;

  4. there is no evidence that by the various compilations referred to as attachments to documents there was any alteration of the content of the documents in fact provided to the Applicant, namely those set out at paragraph 47 above.

  1. The Tribunal accepts that the document D20/103314 was created on 28 May 2019 as stated by the University even though it was registered to the student misconduct file on 21 January 2020 (explaining the “2020” prefix) as it is the most plausible explanation for the change of date and the improbability that the University would create documents with different content or a “false account of events” after the dismissal of the claims raised for investigation.

  2. In complying with the Applicant’s various access requests the University provided the documents in attachments differently formatted, explicable by reason of different University officers who compiled the attachments in the process of seeking to comply with the access requests, a different process from what was originally commenced in May 2019. Although the Applicant may not have received a .docx document with the filename “Bill Watkinson Email Compilation.docx” the Tribunal is not satisfied that following the provision of all the materials the subject of its searches the documents contained in that compilation have somehow been withheld.

  3. The Applicant has also raised in this review application a concern that in the absence of an agency identifying by way of “sufficient information” for an applicant to identify which, if any, of the information provided was that requested it could potentially enable the agency to never provide access and thereby obstruct the exercising of rights arising from s 79(1) of the GIPA Act excusing an agency from complying with a requirement of a subpoena or other order of a court for the production of a document, access of which has been given earlier in response to an access application.

  4. That concern is misplaced in the current matter where the scope of the documents sought is defined and it is readily established by reference to that scope that the documents to which access has been given are those requested. Further, it would be open to a court to make the relevant assessment as to whether an agency should be excused from compliance with the subpoena or order.

  5. The Applicant also seeks as an appropriate outcome a communication that the documents sought do not exist, or no longer exist and are not held by the University. In the circumstances set out at paragraph 49 above the Applicant has had notice that the University has no further documents to provide in response to the access application and this request by the Applicant has no utility.

  1. Accordingly, the Tribunal is satisfied that the University has conducted reasonable searches and discharged its onus under s 53 of the GIPA Act. As the section makes clear, the obligation is to make “reasonable” searches. The evidence of Ms Flynn, Mr Purdy and the searches recorded in the IPC report persuade the Tribunal of the reasonableness of the extensive searches carried out.

  2. The Tribunal is satisfied that the University has discharged its burden of establishing that its decision under review is justified. It was the correct and preferred decision.

Order

  1. The decision of the Respondent of 16 August 2021 under review 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 September 2022

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Davison v NSW Department of Education and Training [2013] NSWADT 25