Zidar v NSW Department of Justice (Office of the General Counsel)

[2019] NSWCATAD 164

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 164
Hearing dates:	21 February 2019; 13 May 2019
Date of orders:	19 August 2019
Decision date:	19 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW –access to information –whether respondent holds further information – reasonableness of searches
Legislation Cited:	Civil and Administrative Tribunal Act 2013
Cases Cited:	Cainfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66. Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Joe Zidar (Applicant) NSW Department of Justice (Office of the General Counsel) (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Crown solicitors Office (Respondent)
File Number(s):	2018/00233456
Publication restriction:	Nil

REASONS FOR DECISION

Introduction

1. This is an application by Mr Joe Zidar (“the Applicant”) for review of a determination by the Department of Justice (Office of the General Counsel) (“the Department” or “the Respondent”) under the Government Information (Public Access) Act 2009. The Applicant requested information concerning a decision that had been taken within the Department to block emails from his email address.

2. The matter was listed before me for a hearing on 21 February 2019. On that occasion a number of preliminary issues were raised. My decision in relation to those issue is recorded as Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38.

The Access Application

3. The Applicant submitted two separate access applications in August 2017. As a result of discussions between him and the Department’s Open Government, Information and Privacy Unit (“the OGIP unit”) the applications were re-scoped and consolidated into one application. In the access application the Applicant requested:

1    Records held by the NSW Department of Justice relating to the unlawful and uncommunicated Blocking of emails from Fraud Detection and Reporting Pty Ltd to the following (3) independent statutory authorities of the Justice Cluster, which include (NCAT,OLSC & IPC), however, excluding the (OGIP) unit and issued by the primary parties which include (Mr Mark Speakman, Mr Andrew Cappie-Wood, Ms Lida Kaban, Ms Jodie Shepherd), Ms Rebecca Jeyasingham & Mr Michael Mcintosh for the period between 25 May 2017 to the date of receipt of a valid access application);

This includes the following types of records:

a.   Emails /letters (inbound and outbound)

b.   Video / Voice recordings

c.   File-notes / Phone Logs

d.   Minutes of meetings held'

2   Please provide any policy, procedure document or signed letter of authority or directive relied on by Ms Kaban enforcing Fraud Detection and Reporting Pty Ltd to post ail future correspondence to the NSW Department of Justice;

3   Please provide any policy, procedure document or signed letter of authority or directive relied on by Ms Kaban relating to the unlawful and uncommunicated blocking of emails from Fraud Detection and Reporting Pty Ltd to the following (3) independent statutory authorities of the Justice Cluster, which include (NCAT.OLSC & IPC), however, excluding the (OGIP) unit;

4   Please provide any policy, procedure document or signed letter of authority or directive relied on by the NSW Department of Justice Digital Technology Services relating to the unlawful and uncommunicated blocking of emails from Fraud Detection and Reporting Pty ltd to the following (3) independent statutory authorities of the Justice Cluster, which include (NCAT, OLSC & IPC), however, excluding the (OGIP) unit;

5   Please provide a list of Business Units and Agencies serviced by NSW Department of Justice Digital Technology Services for the period between (Sam 25 May 2017 to the date of receipt of a valid access application);

6   Please provide the most recent Organisational Chart of the (OGIP) Unit which details the number of Officers in this unit;

7   Please provide the list of NSW Department of Justice Officers who form part of the [email protected] distribution list, as at 20 May 2016, 30 July 2017 and 2 December 2017;

8   Please provide all relevant and current job descriptions applicable for the following Officers as published and advertised on employment websites such as (i.e. Seek & Indeed);

a.   All correspondence under the Scope of Documents defined above for the following Officers:

i.   Mr Andrew Cappie-Wood (Secretary, NSW Department of Justice)

ii.   Ms Lida Kaban (General Counsel, Office of the General Counsel)

iii.   Ms Jodie Shepherd (Director, Open Government, Information and Privacy)

iv.   Ms Rebecca Jeyasingam (Manager, Open Government, Information and Privacy)

v.   Mr Michael McIntosh (Assistant Manager, Open Government, Information and Privacy)

vi.   Mr Giancarlo Nalapo (Privacy Officer, Open Government, Information and Privacy)

vii.   Mr John McKenzie (Commissioner, NSW Legal Services Commissioner)

viii.   Ms Elizabeth Knight (Senior Officer, NSW Legal Services Commissioner)

9 In relation to GIPA application 1994/17, we seek access to:

a.   Emails/Letters (inbound and outbound)

b.   Video/Voice recordings

c.   File-notes / Phone Logs

d.   Minutes of meetings held

held by (Mr Mark Speakman, Mr Andrew Cappie-wood, Ms Lida Kaban, Ms Jodie Shepherd and) Ms Rebecca Jeyasingam in dealing with GIPA application (LEGAL1994/17) for the period 25 May 2017 to the date of receipt of a valid access application;

10 In relation to GIPA application 3054/17, we seek access to:

a.   Emails/Letters (inbound and outbound)

b.   Video/Voice recordings

c.   File-notes / Phone Logs

d.   Minutes of meetings held

held by (Mr Mark Speakman, Mr Andrew Cappie-wood, Ms Lida Kaban, Ms Jodie Shepherd and Ms Rebecca Jeyasingam in dealing with GIPA application (LEGAL3054/17) for the period 25 May 2017 to the date of receipt of a valid access application

4. The Respondent determined that information was not held In relation to points 1, 2, 3, 7, 9, and 10 of the access application and it determined to release other information that was held.

5. The Information Commissioner conducted an external review of the Respondent's decision that the information is not held. The Information Commissioner made no recommendations to the Respondent.

6. The Applicant does not accept that the Respondent located all of the material it holds that falls within the scope of his access application. He contends that the searches conducted by the Respondent were not sufficient and therefore it failed to locate information that it holds and has not released.

Issue for determination

7. The issue for determination is whether the Respondent has made the correct and preferable decision in its decision that it does not hold certain information that the Applicant is seeking.

8. In determining this issue it is necessary to consider whether the searches that the Respondent undertook were reasonable and whether it is likely that other searches could be taken that would locate the information that is sought.

Applicable legislation

9. The objects of the GIPA Act as set out in section 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

10. It is not disputed that the information that the Applicant sought, if held, would be government information as defined in section 4(1) of the GIPA Act.

11. There is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”: section 5 of the GIPA Act. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of examples of such considerations. The public interest considerations against disclosure are set out in a Table to section 14 of the GIPA Act.

12. Under section 53 of the GIPA Act, 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.

13. The Applicant appears to contend that the Respondent did not undertake reasonable searches for the information he sought, and seeks review of the decision on the basis that further information should be made available to him. He contends that the Respondent holds more information than it has identified. He says that there are reasonable grounds to believe that there are further documents relevant to the access application and that the Respondent has not used its best endeavours to locate them.

14. In essence, he seeks review under section 80(e) of the GIPA Act, which provides that a reviewable decision includes a decision that government information is not held by the agency.

15. The Respondent maintains that it does not hold other information relevant to the access application. Pursuant to section 105(1) of the GIPA Act, the burden of establishing that it does not hold information lies on the Respondent.

16. The Tribunal has consistently adopted a two-stage approach to determining whether an agency has conducted an adequate search. This applies the approach adopted by the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. The approach is to consider:

1. whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and, if so,

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

17. If the applicant submits that there is further information which is not supplied then there is a necessity for the applicant to put forward credible material or argument that there are reasonable grounds for so believing, see discussion in McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66. The Tribunal has adopted the views expressed by O'Connor P in the Administrative Decisions Tribunal matter of Cainfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 where he 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 ... 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.

18. I agree with that view.

The Material before the Tribunal

19. The Applicant relies on his own evidence as well as written and oral submissions.

20. The Respondent relies on evidence provided by Mr Michael McIntosh, Practice Manager in the Office of the General Counsel; Mr Glenn Barber, Senior Project Officer in the Department’s Information and Cyber Security, Digital Technology Services (“the DTS”); and Mr Steven Rees, DTS’s Service Manager Incident and Problem. The Respondent’s solicitor, Mr McDonnell, also provided both written and oral submissions. Mr McIntosh and Mr Rees both appeared at the hearing and were cross-examined.

The Applicant’s case

21. The Applicant’s primary concern is to establish the processes that were involved in a decision to block emails that he sent to the Respondent and related agencies. He stated that the email server block was in place for around six months and was impacting on emails that he sent to this Tribunal and to:

1. The NSW Office of the Legal Services Commissioner;

2. The NSW Information Commissioner; and

3. The NSW Supreme Court;

22. He also stated that between June and December 2017 he engaged in at least 15 telephonic discussions with officers from various agencies who confirmed that officers from the DTS were managing requests to resolve the issue and that service help desk tickets had been raised.

23. The Applicant contends that the Respondent took the decision to block his emails and that as a consequence his communication with this Tribunal and other agencies has been significantly impaired. He said that Ms Jodie Shepherd took the decision to block the emails. He said that there should be ‘tickets’ available to evidence the trail followed in relation to implementing that decision. He says that multiple tickets would have been raised. At the minimum there should be a ticket raised when the emails were blocked and a ticket raised when the emails were unblocked. However, only one document has been released. He also says that Ms Shepherd was engaging with multiple agencies and therefore the Respondent should hold multiple documents in relation to the issue.

24. He contends that the evidence that the Respondent has provided does not provide adequate answers to explain its failure to locate information that would be held.

The Respondent’s case

Mr Michael McIntosh

25. Mr McIntosh was the decision maker in regard to the access application. He personally coordinated the searches in relation to the access application to various business areas and staff attached to the Department.

26. Mr McIntosh provided evidence in regard to the searches that were undertaken. He conducted and coordinated searches in relevant electronic systems including the Department’s email system and its Electronic Document and Records Management System (“ED-RMS”) using key-word searches based on the access application. Records were located in relation to points 4, 5, 6 and 8.

27. Mr McIntosh provided evidence in relation to the specific searches that were undertaken in regard to each of points, 1, 2, 3, 7, 9 and 10 and confirmed that no information was located for any of those requests.

28. He stated that was personally aware that Ms Shepherd had made a phone call to an officer in DTS on 12 July 2017 in relation to a request to block the Applicant's email address from contacting particular staff within the Department of Justice. He was sitting near her when she made that phone call and he is aware that there was no physical record or information relating to that item.

29. Mr McIntosh’s evidence is that he did not deal with other agencies in regard to the blocking of emails.

30. Mr McIntosh provided evidence in relation to the general process of creating tickets but he was not able to answer questions that were directed to the technical aspect of the process of blocking emails or the ticketing process. However, he confirmed that the Respondent had changed its ticketing system from late 2017. The old system had ceased to be operational at the time that Mr McIntosh undertook his searches in relation to the Applicant's access application. When he sent his request to DTS he was told that the old system had been migrated. Not all information was migrated from the old system to the new system. He was unable to confirm what information had been migrated and what information had not been migrated.

Mr Glenn Barber

31. Mr Barber is a Senior Project Officer, Information and Cyber Security, in the Respondent’s DTS unit. He explained that the Respondent had changed its system to record and track service desk jobs relating to information technology requests within the Department from the old InfraEnterprise system (“InfraEnterprise”) to the current Service Now Service Desk (“ServiceNow”).

32. Mr Barber confirmed that the DTS received the following request from the Office of the General Counsel in relation to the Applicant's access application on about 5 December 2017:

'Please provide any policy, procedure document or signed letter of authority or directive relied on by the NSW Department of Justice Digital Technology Services relating to the unlawful and uncommunicated BLOCKING of emails from Fraud Detection and Reporting Pty Ltd to the following (3) independent statutory authorities of the Justice Cluster, which include (NCAT,OLSC & IPC), however, excluding the (OGIP) unit'

33. He said that at the time that DTS received the search request the InfraEnterprise system was in the process of being decommissioned. One of the steps in the decommissioning process is the transfer of the open records to the new ServiceNow service desk. Only opened tickets that had not yet been resolved were transferred into the ServiceNow service desk. Closed tickets were not migrated.

34. Mr Barber confirmed that only a single ticket was open at the time that DTS received the search request. That ticket was identified as falling within the scope of the access application and has been released.

Mr Steven Rees

35. Mr Rees is Service Manager Incident and Problem in the DTS unit. He provided an affidavit and also appeared at the hearing and was cross-examined.

36. Mr Rees said that InfraEnterprise was decommissioned between 1 July 2017 and end of August 2018. InfraEnterprise was no longer used by DTS and other Business units within the Department after that date. He was part of the team responsible for implementing ServiceNow and decommissioning InfraEnterprise.

37. InfraEnterprise was decommissioned following the implementation of ServiceNow as the Enterprise Service Management System (ESM) as used by DTS and other Business units within the Department. Both systems provide a method to record and track ServiceDesk tickets relating to incidents and service requests from staff within the Department. InfraEnterprise is only used as a data repository for older records, read only access is provided to a select few Desktop Support staff.

38. Mr Rees confirmed that only opened tickets that had not been resolved by the end of August 2017 were transferred into ServiceNow. Closed tickets were not migrated. He stated that he undertook searches of both InfraEnterprise and ServiceNow and confirmed that no other tickets that falls within the scope of the access application are held.

39. Under cross-examination Mr Rees was able to provide more details in relation to the Department’s systems. Despite the detailed questions that were put to him by the Applicant he did not vary his evidence that no other information that falls within the scope of the access application are held in either InfraEnterprise or ServiceNow.

Discussion

40. As I have indicated above, the Tribunal has adopted a two stage approach in determining applications that concern the issue of whether or not an agency holds information that has not been located in response to an access application. The first stage is to ascertain whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency.

41. In the present matter there are reasonable grounds to believe that the Department would have held further information that falls within the scope of the access application. At the minimum it would have held a ticket that it would have raised when the emails were blocked and a second ticket that would have been raised when the emails were unblocked. It is also reasonable to expect that the Department would have held other information because of the nature of the issues involved and the number of calls that were made between the Applicant and the Department in relation to the issue. It is improbable that the single document that has been released is the only one that was held.

40. However, I am satisfied that the evidence presented by the Department provides an adequate explanation for its inability to locate other information concerning the issue.

41. The evidence is clear that not all information was migrated from InfraEnterprise to ServiceNow. Only opened tickets that had not been resolved were transferred into ServiceNow. It is probable that other information that was within the scope of the access application would have been held in InfraEnterprise but was not migrated.

42. Mr Rees conducted further searches of both systems and did not locate any other information that would be captured by the access application.

43. In the circumstances, I am satisfied that the search efforts that the Department made were reasonable in all of the circumstances of this case. I do not consider that further searches are likely to locate other information that would be captured by the access application. I therefore do not agree that the Department should be required to undertake any further searches. That being the case, the decision under review should be affirmed.

Order

1. The decision 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: 19 August 2019