Zonnevylle v Department of Education

[2017] NSWCATAD 214

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zonnevylle v Department of Education [2017] NSWCATAD 214

Hearing dates:

6 February 2017

Date of orders:

30 June 2017

Decision date:

30 June 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

(1)   The Respondent’s reviewable decision of 24 August 2016 is affirmed.

(2) The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.

Catchwords:

ADMINISTRATIVE REVIEW - Government Information – refusal to deal – unreasonable and substantial diversion of resources - allegations of misconduct - request for referral to Minister – allegations of offences - jurisdiction
PROCEDURAL FAIRNESS – application for disqualification

Legislation Cited:

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

Cases Cited:

ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121
BY v Director General, Attorney-General’s Department [2002] NSWADT 79
Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22
Cianfrano v Premier’s Department [2006] NSWADT 137
Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130
Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181
Public Service Assn v Premier’s Department [2002] NSWADT 277
Rittau v Commissioner of Police, NSW Police Service [2000] NSWADT 186
Saggers v Environment Protection Authority [2013] NSWADT 204
Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189
Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303
Zonnevylle v Department of Education [2017] NSWCATAD 101
Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10
Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49
Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47
Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186

Category:

Principal judgment

Parties:

Peter Zonnevylle (Applicant)
Department of Education (Respondent)

Representation:

Counsel:
In Person (Applicant)
M Dalla Pozza (Respondent)

  Solicitors:
NSW Crown Solicitor’s Office (Respondent)

File Number(s):

2016/00378353

Publication restriction:

None

REASONS FOR DECISION

Overview

1. The Applicant seeks access, under the Government Information (Public Access) Act 2009 (“the GIPA Act”) to information held by the Department of Education (“the Respondent”).

2. On 2 February 2016, the applicant made an access application under Part 4 of the GIPA Act to the Respondent, in the following terms:

Email: [email protected]

We request all correspondence from DEC be sent per email to minimize delays

1. Documents listing all formal GIPA applications received by DEC IA Unit in:

a.  Calendar year 2014

b.  Calendar year 2015

Documents to lit GIPA number, description of information sought and whether the applications were valid or invalid and whether a public interest factor / discount was sought

2. Documents for the above GIPA applications showing public interest factors / discounts were:

a.  Approved outright

b.  Approved after initial objection by IA unit

c.  Refused and not applied (refused outright / refused because of no supporting evidence)

Details of the decision maker to be advised (name & position of officer to be noted or their Gov ID number if there are privacy concerns)

3.  Documents listing the estimated processing fees & final processing fees for each application

4. Documents showing any GIPA applications made outside time (as per Sect. 63)

5.  Timesheets for IA Unit officer involved per application (name of individual IA Unit officer to be noted or their Gov ID number if there are privacy concerns)

6.  Total income from IA unit processing fees for calendar years 2010, 2011, 2012, 2013, 2014 & 2015

Under Sect.16 you are required to provide assistance to make this application a valid access application.

We request assistance to make this a valid access application whereby as much of the above information as possible is provided.

Where information is to be refused / recommended to be removed we require reasons for the rejections / removal

It is requested that Jenny Pendergast does not process this GIPA application as there are current allegations of lack of good faith / improper conduct against Pendergast

We request all correspondence from DEC be sent per email to minimize delays

Sincerely

Peter Zonnevylle

Email: [email protected]

Public Interest Factor

1.  The requested information holds a special interest to the public:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

The information sought access to is to ensure that the DEC IA Unit acts in the interests of the NSW public and upholds the objectives of the GIPA Act.

A 50% reduction in processing charges is requested.

2. It is requested that Jenny Pendergast does not process this GIPA Application as there are current allegations of lack of good faith against Pendergast.

3. On 17 February 2016 the Respondent wrote to the Applicant, requesting that he amend his application on the basis that it would otherwise be refused on the grounds of it requiring an unreasonable diversion of resources to process. The Respondent noted that the estimated time required to process the application, being 96 hours and 30 minutes, would need to be reduced to “below 40 hours”, and provided specifics of the tasks required and time estimated to respond to each item of the access application. There followed extensive communication between the Applicant and Respondent concerning the clarification and rescoping of the access application on 26 February 2016, 7 March 2016, 19 March 2016, 1 April 2016, 11 April 2016, 21 April 2016, 1 May 2016, 6 May 2016, 21 May 2016, 30 May 2016, 1 June 2016 and 6 June 2016, with documents being informally released by the Respondent on 8 June 2016 to the Applicant.

4. On 20 June 2016 the Applicant proposed amendments to his access application as follows:

I would like to propose the following amendments:

Re ltem 1.

Documents listing all formal GIPA applications received by DEC lA Unit in:

a. Calender year 2014

b. Calender year 2015

Documents to include relevant information entered into the following fields:

Header Title

- A GIPA File No.

- F Subject (description of information sought)

- J Case officer

- K EPAC matter

- M Reason for invalid application

- R Date valid

- AQ Processing charge reduction reason

- AR Refund amount

- AS Application fee refund reason

- AT Processing charge refund reason

ltem 2.

i. Documents related to the initial rejection of a public interest benefit reduction in charges related to GIPA-15-274

ii. Documents/ memos/guidelines other than lPC GIPA Guideline Discounting Charges used by lA Unit or GIPA decision makers when making processing charge reduction decisions

Associated database documents to include relevant information entered into the following fields:

HeaderTitle

- A GIPA File No.

- AQ Processing charge reduction reason

- AS Application fee refund reason

- AT Processing charge refund reason

- AV Decision maker title

- AW Decision maker name

- AY Decision result

- BA PIC

- BB PIC

- BC PIC

- BD PIC

ltem 3

Documents listing the estimated processing fees & final processing fees for each application from 2014 to 2015

Associated database documents to include relevant information entered into the following fields:

Header Title

- A GIPA File No.

- J Case officer

- X Search officer name

- Y NP Time estimate due date

- Al Full processing charge

- AQ Processing charge reduction reason

- AR Refund amount

- AS Application fee refund reason

- AT Processing charge refund reason

ltem 4.

Documents showing any GIPA applications made outside time (as per Sect: 63)

Associated database documents to include relevant information entered into the following fields:

Header Title

- A GIPA File No.

- I Received date

- N Date Invalid letter sent

- S Date Ack letter sent

- R Date Valid

- AX Decision Date

- AY Decision result

- AZ Result access application

- BJ Timeliness

- BK Deemed refused

Item 5. Time sheet records for GIPA non-personal applications for 2014 & 2015

Time sheets to include GIPA File No.

Item 6. Total processing charges received for each year from 2010 to 2015

Requires to be individual years, not one total for the time period

5. By Notice dated 30 June 2016 the Respondent noted that the amended application still exceeded the processing time they considered “reasonably manageable”, sought and proposed additional amendments, refused the applicant’s request for a 50% public interest reduction in processing charge, and requested the applicant pay an advance deposit of $315, being 50% of the estimated processing charges (less the application fee already paid). The Applicant responded to the Notice of 30 June 2016 at length on 24 July 2016, but refused to amend his access application further.

6. On 24 August 2016 the Respondent issued a Notice of Decision (“the reviewable decision”) refusing to deal with the Applicant’s access application further in the following terms:

…as you have refused to amend this application so that it would no longer require and unreasonable and substantial diversion of the Department’s resources, having given you multiple opportunities to amend it.

In the notice of 30 June 2016 you were advised, in accordance with section 60 of the GIPA Act, that in order to obtain the information you have requested, the Department estimated it would take approximately 55.75 hours.

The Department invited you to amend the scope of your application on 7 occasions, as outlined above. You were given suggestions on how your application could proceed so that the application was not an unreasonable and substantial diversion of the Department’s resources.

…

Having regard to the above and the fact that you have not amended your application I have today made a decision to refuse to deal further with your application under sections 58(1)(e), 60(1)(a) of the GIPA Act.

7. The Applicant then made an application to this Tribunal dated 26 August 2016, seeking review of the reviewable decision. In the tribunal application, the applicant sought access to information as per his original access application to the Respondent dated 2 February 2016, and stated as his grounds for the application:

Breaches of the GIPA Act:

Decision made out of time

Sect. 112 Improper Conduct complaint

Sect. 117 Unlawful conduct

8. The Applicant provided the following documents by way of written evidence and submissions to the Tribunal:

1. Response to Respondent’s Submission, filed 11 January 2017:

Incorporating the following Formal Complaints:

1. Breaches of the GIPA Act.

2.  Sect.112 Improper Conduct Complaint

3. Breaches of Offences under the GIPA Act

Associated Documents:

Part 1. Response to Submissions

Part 2. Resp to Statement

Part 3. Documents

Part 4. Summary of Complaints

Part 5. Sect.112 & offences

Part 6. Resp to Sub Item 24

Part 7. Resp to Sub Item 25

Part 8. Resp to Sub Item 19

2. Response to Submissions of Respondent in reply, filed at hearing on 6 February 2017:

Incorporating the following complaints:

Breaches of the GIPA Act.

Sect.112    Improper Conduct Complaint

(incl. complaint of serious harassment)

Possible offences by Respondent’s officers

Document: GIPA 16-292 Notice

9. The Respondent relied on the following:

1. Respondent’s Tender Bundle;

2. Statement of Jenni Pendergast dated 18 November 2016;

3. Submissions of Respondent filed 24 November 2016;

4. Submissions of Respondent in Reply dated 23 January 2017.

10. The matter was heard on 6 February 2017, and Ms Pendergast was cross examined by the Applicant. Following oral submissions, the Tribunal reserved its decision.

11. Following the hearing and the decision being reserved, the Applicant sent the Respondent and the Tribunal additional material on 13 February 2017 titled “Response to hearing Feb.6, 2017” and on 19 February 2017 titled “Addition Response to hearing Feb.6, 2017”. The Tribunal made an order on 28 February 2017 for the Respondent to file and serve brief submissions in reply, which it did on 6 March 2017.

12. The Applicant then sent additional correspondence to the Tribunal on 26 April 2017 incorporating an application that I disqualify myself from determining the proceedings.

13. Having considered all the material before me, both written and oral, I have determined the matter in three parts:

1. The disqualification application;

2. The substantive access application;

3. The Applicant’s complaints (regarding processing of the application and allegations related to ss112, 116, 117, 118 and 120 of the GIPA Act).

14. I have reviewed and considered all the evidence and submissions as identified above in determining these proceedings, even where I have otherwise not referred again to those documents or their contents specifically.

Tribunal’s jurisdiction and powers

15. The Tribunal’s jurisdiction to conduct this review derives from s. 100 of the GIPA Act read with s. 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s. 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

16. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s. 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s. 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier’s Department [2002] NSWADT 277 at [57] and [59].

17. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s. 63(3).

The GIPA Act

18. An access applicant under the GIPA Act has a statutory right to access government information, and the Act instructs that discretions under it be exercised so as to enhance its objects. Its objects are stated to be:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and   

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

19. Section 3(2)(b) of the GIPA Act states:

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

20. Section 60 of the GIPA Act provides the circumstances under which an Agency can refuse to deal with an access application, in whole or in part:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

(a) dealing with the application would require an unreasonable and substantial diversion of the agency’s resources,

(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 ,

(c) the applicant has failed to pay an advance deposit that is payable in connection with the application,

Note : See section 70.

(d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order.

(2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.

(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency’s resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

(5) Notice of an agency’s decision to refuse to deal with an access application must state the agency’s reasons for the refusal.

(6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.

21. The considerations identified as relevant to the assessment of whether fulfilling an access application requires both an unreasonable and substantial diversion of resources include those referred to by O’Connor DCJ in Cianfrano v Premier’s Department [2006] NSWADT 137 at [62], but as noted in Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130 at [28] (“Colefax No 2”), really depend on the facts and evidence of a particular case.

22. The decision in ColefaxNo 2 highlighted the discretion involved in reaching a conclusion that providing the information sought would amount to an unreasonable and substantial diversion of the Respondent’s resources, distinguishing the factors identified in Cianfranoon the basis of the different statutory scheme considered there under the former Freedom of Information Act. In my view, as expressed in Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186, exercising that discretion requires consideration of the concept of proportionality in balancing the Applicant’s right to access information with the agency’s ability to procure it in a timely and cost effective manner.

23. Section 64 of the GIPA Act allows for an agency to charge for dealing with an access application:

64 Processing charge for dealing with access application

(1) An agency may impose a charge (a "processing charge") for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.

Note : The decision to impose a processing charge is reviewable under Part 5.

(2) The "processing time" for an application is the total amount of time that is necessary to be spent by any officer of the agency in:

(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or

(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).

(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.

(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.

24. While the Tribunal is not bound by the doctrine of precedent, that is, it is not formally bound to follow earlier decisions, the Tribunal should exercise caution in re-opening prior, considered rulings of an earlier Tribunal. As noted in Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22 at [21]:

21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.

22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level…

23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case.

25. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.

26. The Tribunal's task is to make the correct and preferable decision in this matter having regard to all the material before it.

The disqualification application

27. The Applicant sent correspondence to the Tribunal on 26 April 2017 stating “a requirement for you to disqualify yourself from Files 1610593 & 1610423”, seeking my recusal on the basis that “it is not possible to have any faith in your required “independence” and “impartiality”.” Identical correspondence was considered by me in Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186.

28. The Applicant’s application for me to disqualify myself from these proceedings is expressed to be founded on my findings, reasons for decision and the decision in Zonnevylle v Department of Education [2017] NSWCATAD 101 which was published on 31 March 2017, which form the basis for the Applicant’s complaints of my alleged impartiality, lack of good faith, improper conduct, lack of independence, false statements, and disputed findings.

29. As I expressed in Zonnevylle v Department of Education [2017] NSWCATAD 101 at [18] to [22]:

[18] I consider the allegation of “impartiality and lack of good faith” to be an assertion of bias. The Applicant does not state whether he is asserting actual or apprehended bias. The rule against bias is a principle of procedural fairness preventing decision makers from making decisions if they are actually or ostensibly biased. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a Tribunal be independent and impartial.

[19] The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy in the following way at [8]:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

[20] For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] Gummow ACJ, Hayne, Crennan and Bell JJ.

[21] A decision maker has an obligation to hear and determine the matter unless reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36].

[22] An application for disqualification should be determined by the decision-maker whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.

30. With the exception of the title of this application including the Tribunal file number relevant to these proceedings, 1610593, there is no reference in the content of the disqualification application correspondence to any matter or issue before the Tribunal in these proceedings. The 11 page application contains a number of complaints and allegations regarding my findings in Zonnevylle v Department of Education [2017] NSWCATAD 101, and unfounded and unsupported allegations implying general corruption and misconduct, but nothing which presents a logical submission of any objective connection relevant to my hearing and determination of these proceedings.

31. It was open to the Applicant to appeal my reasoning and decisions in Zonnevylle v Department of Education [2017] NSWCATAD 101 on any of the bases he now complains of in these proceedings, but he has not done so. To the extent that the Applicant’s basis for my disqualification stems from my interpretation and application of the GIPA Act in a previous matter, that is a question of comity and a matter of consistency in Tribunal decisions as discussed in Rittau v Commissioner of Police, NSW Police Service [2000] NSWADT 186; ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121; BY v Director General, Attorney-General’s Department [2002] NSWADT 79; Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181, and not a basis for disqualification.

32. Accordingly, I refuse the Applicant's application that I disqualify myself.

The Substantive Application

33. The issues for determination by the Tribunal as to the correct and preferable decision on the substantive application are:

1. What information is being sought by the access application; and

2. Whether providing that information would constitute an unreasonable and substantial diversion of resources.

34. The decision before the Tribunal for review is the Respondent’s decision of 24 August 2016 (“the reviewable decision”). The reviewable decision considered the applicant’s access application made on 2 February 2016 and the various attempts by the Respondent to obtain amendments to that request from the Applicant, including seven separate Notices.

35. The parties are conflicted as to whether the Tribunal is considering the Applicant’s original access application, or the amended access application as per correspondence from the Applicant dated 20 June 2016. The Respondent submits that it is the amended access application which the Tribunal is considering. The Applicant’s submissions suggest that his original access application of 2 February 2016 should be considered by the Tribunal to be the relevant request for information.

36. The Respondent’s reviewable decision and the application to the Tribunal to commence proceedings for review of that reviewable decision support a finding that the access application subject to reviewable decision for consideration by the Tribunal is the access application made by the Applicant on 2 June 2016, not the amended version following correspondence on 20 June 2016. The history of this matter and the content of communications between the parties prior to the filing of these proceedings, which was tendered in evidence by the Respondent, supports a finding that, while there were attempts to amend the application to narrow the Applicant’s scope of requests, and resources which would need to be engaged by the Respondent in answer to those requests, those attempts ultimately failed, resulting in these proceedings.

37. The Respondent’s reviewable decision of 24 August 2016 supports my finding that the subject access application is that of 2 February 2016, as the reviewable decision refers to the seven previous occasions on which they invited the Applicant to re-scope his request. If the access application in question was the amended version, only one of those occasions would be relevant as post-dating the amendments. The Applicant’s application for review to this Tribunal also refers specifically to the access application in its terms at 2 February 2016, not 20 June 2016.

38. I therefore find that the relevant access application is in the terms provided by the Applicant on 2 February 2016, and the Respondent’s reviewable decision of 24 August 2016 determines that access application.

39. I also therefore find that the seven notices from the Respondent between the access application being made on 2 February 2016 and the reviewable decision of 24 August 2016 comprise evidence of the Respondent’s attempts to assist the Applicant in re-scoping his request in order to appropriately manage the Respondent’s resources, in accordance with the provisions of s60(4) of the GIPA Act.

40. What is in issue in relation to the access application and the reviewable decision is therefore whether the Respondent was justified in refusing to deal further with the access application pursuant to sections 58(1)(e) and 60(1)(a) of the GIPA Act on the basis that doing so would be an unreasonable and substantial diversion of its resources.

Unreasonable and substantial diversion of resources

41. The Respondent’s evidence was that following receipt of the access application, the IA Unit estimated that the application would require more than 96 hours and 30 minutes to process. This was expressed in the Notice sent to the Applicant by the Respondent on 17 February 2016 (Notice 1). The Respondent estimated that:

1. Responding to Item 1 would require 11 hours and 45 minutes to process on the basis that there had been 590 GIPA applications made in 2014 and 2015, and providing the information requested would require the Respondent to redact personal information, and create summaries of those applications as per the applicant’s request.

2. Responding to Item 2 would require more than 15 hours of processing time because the database kept by the Respondent did not include the level of detail sought. It recorded cases where the discount was applied, not those where the discount was sought and refused. Providing the information sought in the access application would require the Respondent to individually examine each of the 590 subject GIPA application files.

3. Responding to Item 3 would require more than 20 hours of processing time because the database kept by the Respondent did not include the level of detail sought. Providing the information sought in the access application would require the Respondent to individually examine each of the 590 subject GIPA application files.

4. Responding to Item 4 would take 15 minutes, because the database kept by the Respondent included the detail requested. Extracting that data and creating a new record would take approximately 15 minutes.

5. Responding to Item 5 would take over 49 hours to process because the database kept by the Respondent did not include the level of detail sought. Providing the information sought in the access application would require the Respondent to individually examine each of the 590 subject GIPA application files, extract timesheets from each file, redact personal information, and provide copies. Allowing a conservative estimate of 5 minutes per file, this would result in the estimated processing time.

42. The Respondent made amendment suggestions to the Applicant in accordance with the requirements of s60(4) of the GIPA Act in Notice 1. The evidence demonstrates that the Respondent then engaged in a series of communications with the Applicant in an effort to narrow and amend the access application in an effort to bring it within what it would consider a reasonable diversion of resources, being 40 hours. By the time the Respondent issued the reviewable decision on 24 August 2016, it had spent 44.75 hours since the receipt of the access application on 2 February 2016 dealing with the application. Of that time, it considered 26.25 hours to be “chargeable”, being time for which a processing fee could be charged to the Applicant pursuant to s64(2)(a) of the GIPA Act, including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application.

43. I accept the Respondent’s evidence. Ms Pendergast was cross examined by the Applicant and I found her to be a patient and reasoned witness whose evidence I was given no reason to disbelieve.

44. The Applicant’s submissions addressed a number of collateral issues. Relevant to the Tribunal’s determination of this issue, he submitted:

1. That the Respondent’s 40 hour threshold was not sufficient;

2. That it was inappropriate or improper of the Respondent to suggest that the Applicant had been unco-operative in attempts to narrow or amend the access application;

3. That the time spent by the Respondent in assessing and processing the application, and the estimates provided by the Respondent for assessing and processing the application, were excessive;

4. That, following the Respondent’s informal release on 8 June 2016 of certain database headers relevant to its record keeping processes, “months of correspondence” would have been avoided if the Respondent had produced the database headers earlier.

45. Having regard to the considerations referred to in Colefax No 2, I agree with the submission, made by the Applicant and accepted by the Respondent, that a threshold of 40 hours is not a “hard and fast rule”. The circumstances of each matter will dictate how many hours’ work or the extent to which an agency’s resources are diverted would be considered reasonable. In these circumstances, I accept the Respondent’s submission that 40 hours would be more than generous to allow as a threshold before an application would be considered an unreasonable and substantial diversion of resources. This is especially so in these circumstances where, on the basis of the evidence and submissions before me, I cannot ascertain any particular reason for the Applicant’s interest in the material requested, other than a general interest in the manner in which the Respondent dealt with GIPA access applications in 2014 and 2015. The request is in broad terms and encompasses information subject to 590 GIPA applications, which is also a factor against the Applicant’s application being resourced by the Respondent.

46. I agree with the Respondent’s submission that Applicant’s approach to amending the application could not be described as “co-operative”. The evidence supports findings regarding the applicant’s conduct in dealing with this access application, including that he:

1. Repeatedly raised issues related to previous applications;

2. Made groundless allegations of lack of good faith or improper conduct against officers of the Respondent with whom he disagreed or perceived to have disagreed with him;

3. Made groundless applications and repeatedly insisted that key members of the respondent’s Information Access Unit not be involved in the processing of the application because of unfounded allegations of bias, or lack of good faith, or improper conduct;

4. Was generally unwilling to take up most of the suggested amendments proposed by the Respondent, or otherwise suggested amendments which would broaden, rather than narrow, the scope of information sought.

47. I agree that the evidence demonstrates that the applicant’s approach to the access application and the Respondent’s attempts to narrow its scope to a reasonable diversion of its resources, itself created a significant burden on the resources of the Respondent.

48. I reject the submissions of the Applicant that the Respondent had overestimated or otherwise been excessive in the time it spent or purported to have spent in dealing with and processing the access application. No evidence was provided by the Applicant to support his submissions to that effect. The voluminous correspondence between the parties supports the estimates of time provided by the Respondent in its evidence.

49. I also disagree with the Applicant’s submission that “months of correspondence” could have been avoided if the Respondent had produced the database field headers earlier, and that this is relevant to the Tribunal’s determination of whether responding to the access application would be an unreasonable and substantial diversion of the Respondent’s resources. Informal production of the database field headers did not assist in narrowing the scope of the application or amending the access application, as is demonstrated by the Applicant continuing to press the original terms of the access application made 2 February 2016 after that informal production.

50. Following the hearing the Applicant sent correspondence containing additional submissions to the Tribunal. In that correspondence, a submission made for the first time was that, in accordance with guidelines issues by the Information and Privacy Commission, agencies should not charge for certain time spent processing or dealing with an access application. I invited the Respondent to put on submissions in reply, which it did. Having considered those submissions, I do not think it is an issue which needs to be determined in these proceedings. I have found on the evidence that the time estimated by the Respondent to process the access application – that is, to search for and extract and obtain the information requested by the applicant in his access application of 2 February 2016 – is an unreasonable and substantial diversion of resources. The Respondent has conceded that nothing may be charged to the Applicant in the circumstances, so the issue is not relevant to my determination of these proceedings.

51. The Respondent made repeated invitations to the Applicant, with detailed suggestions, to amend his access application. These ultimately were rejected. The respondent has the burden of establishing that its decision is justified: GIPA Act, s 105(1). It has done so. On the evidence before me, I find that processing the access application would result in an unreasonable and substantial diversion of the Respondent’s resources within the meaning of s60(1)(a) of the GIPA Act. Accordingly, the correct and preferable decision is to affirm the Respondent’s reviewable decision of 24 August 2016.

The Applicant’s complaints and allegations

52. Much of the Applicant’s extensive written submissions were concerned with his complaints regarding the Respondent’s application of the GIPA Act, his request for the Tribunal to refer the Respondent’s conduct to the Minister pursuant to s112 of the GIPA Act, and submissions for the Tribunal to find that the Respondent had committed offences pursuant to sections 116, 117, 118 and 120 of the GIPA Act.

53. The Tribunal has previously considered the Applicant’s complaints and allegations of misconduct against the Respondent and its officers in relation to access applications made by him under the GIPA Act in Zonnevylle v Department of Education [2017] NSWCATAD 101, Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10, and Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 and, despite the Applicant’s attempts to raise them as relevant to these proceedings, would not reconsider those issues or reopen those findings here.

54. Section 112 provides:

If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

55. The Tribunal’s powers in relation to section 112 have been considered in a number of recent cases, including Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303, Saggers v Environment Protection Authority [2013] NSWADT 204, Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189, Zonnevylle v Department of Education [2017] NSWCATAD 101, and Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186, and I adopt those principles here.

56. In the circumstances of this matter I am not satisfied that an officer of the Respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. I therefore decline to make the requested referral under section 112 of the GIPA Act.

57. In relation to the Applicant’s complaints and allegations regarding the Respondent’s breaches of sections 116, 117, 118, and 120 of the GIPA Act, section 128 of the GIPA Act states:

128 Nature of proceedings for offences

(1) Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.

(2) Proceedings for an offence under this Act or the regulations may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.

58. I agree with the Respondent’s submissions. The Local Court is the appropriate forum for dealing with any charge that an offence against any of these sections has been committed. The Tribunal has no jurisdiction to deal with these provisions, despite the Applicant’s submissions to the contrary.

Orders

1. The Respondent’s reviewable decision of 24 August 2016 is affirmed.

2. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.

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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 June 2017