Zonnevylle v Department of Finance, Services and Innovation

[2017] NSWCATAD 186

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186
Hearing dates:	2 March 2017
Date of orders:	15 June 2017
Decision date:	15 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1)   The Tribunal affirms the Respondent’s decision of 5 September 2016. (2) The application for a referral pursuant to s112 of the Government Information (Public Access) Act 2009 is refused.
Catchwords:	ADMINISTRATIVE REVIEW - Government Information – attempt to reopen findings - reasonableness of searches – discharge of onus - whether reasonable grounds to believe information exists – unreasonable and substantial diversion of resources – balancing exercise – information already provided – legal professional privilege – allegations of delay - allegations of misconduct - request for referral to Minister – 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 Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436 Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 BY v Director General, Attorney-General’s Department [2002] NSWADT 79 Camilleri v Commissioner of Police [2012] NSWADT 5 Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195 Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 Commissioner of Police v Camilleri [2012] NSWADTAP 19 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Hula v Commissioner of Police (NSW) [2013] NSWADT 153 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 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 Saggers v Environment Protection Authority [2014] NSWCATAD 37 Seven Network Ltd v News Ltd [2005] FCA 142 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189 Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 Smith v Pittwater Council [2016] NSWCATAD 67, Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303 Wentworth v Graham [2003] NSWCA 240 Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175 Zonnevylle v Department of Education [2017] NSWCATAD 101 Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47
Category:	Principal judgment
Parties:	Peter Zonnevylle (Applicant) Department of Finance, Services and Innovation (Respondent)
Representation:	P Zonnevylle (Applicant in person)   M Dalla Pozza, Crown Solicitors Office (Respondent)
File Number(s):	2016/00378187, 1610423

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 Finance, Services and Innovation (“the Respondent”).

2. On 11 April 2016, the applicant made an access application under Part 4 of the GIPA Act to the Respondent, in the following terms:

Peter Zonnevylle GIPA Application

The following information is formally applied for:

Item

Description of documents

1.

Staff listing of Jan 2012 to Dec 2014 showing how many Julie Kings were employed by DFS including:

i. The dates of their employment

ii. Their positions of employment (& dates when in these positions)

2.

Email addresses used by Julie King and/or either Julie King.

Documents to show when these email addresses were used (commissioned) and which Julie King used them

Period from 2012 to 2014

3.

Correspondence / notes / memos / directives between Anne Skewes, Peter Duncan, Michael Coutts-Trotter, Anthony Lean, and GIPA unit referencing GIPA#13 and/or GIPA#17 and/or Zonnevylle

Period from when GIPA#13 was received by DFS up to Dec 2015

4.

Email log showing times of all emails received by DFS from the Applicant between April 13, 2012 to April 17, 2012 (email: [email protected])

5.

Documents / memos / directives / etc made by or to DFS staff & GIPA Unit staff concerning / referencing Peter Zonnevylle and/or GIPA#13 and/or GIPA#17 (between Jan 2012 & Dec 2015)

Documents to include any notes / memos made by Dickenson / Wiggins / King in relation to / referencing Zonnevylle

6.

Documents detailing any employment overlaps between Dickenson / King / Wiggins & Johnson / Verteouris between Jan 2012 & Dec 2015

7.

Documents detailing and correspondence / communications between Dickenson / King / Wiggins & Johnson / Verteouris between Jan 2012 & Dec 2015

8.

Time sheets for the original processing of GIPA#13 documentation by Dickenson

9.

Time sheets for the original processing of GIPA#13 documentation for GIPA#17 (Documents to show separate time sheets each time the documentation for GIPA#13 was reprocessed and by whom)

10.

Documents detailing what original GIPA#13 information was re-used in GIPA#17 from when Dickenson processed GIPA#13

11.

Documents / correspondence between GIPA Unit & Chandler referencing GIPA#17 and/or GIPA#13 and/or Zonnevylle

12.

Documents / Email log showing that DFS emailed the GIPA#13 August 10, 2012 Notice of Decision to the Applicant as stated in the CSO letter dated April 22, 2015 (email: [email protected])

13.

Time sheets for the processing of Items 2 & 3 of GIPA#17

14.

Documents / Faxes received by the GIPA Unit from Zonnevylle between Jan 10, 2014 & March 1, 2014

15.

Documents / The “Received fax log” for GIPA Unit’s fax lines between Jan 10, 2014 & March 1, 2014. Fax log to detail at least first 4 digits of senders Fax No., time of receiving fax & number of pages received

16.

Documents / correspondence between DFS GIPA Unit & DEC IA Unit between Jan 2012 & Dec 2015 referencing Zonnevylle

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

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

Sincerely Peter Zonnevylle

Email: [email protected]

3. The respondent received the access application on 12 April 2016 (“the access application”). Between 12 April 2016 and 1 July 2016 the parties engaged in extensive correspondence regarding the processing of the request.

4. On 12 July 2016 the Applicant filed these proceedings with the Tribunal. The Applicant identified the Orders Sought as “Release of government information sought under GIPA Act (refer attached application)”, attaching a copy of the access application made to the Respondent on 11 April 2016. As Grounds for the application to the Tribunal, the Applicant stated:

Breaches of the GIPA Act. Alleged lack of good faith in functions performed by officers of the agency. Possible compromising of information release by other officers with a vested interest in ensuring that specific information is obstructed from release.

5. Orders were made in the case management of these proceedings for the Respondent to further consider the application, make a decision and file evidence in relation to that decision.

6. In accordance with those orders, on 5 September 2016 the Respondent emailed the Applicant its decision (“the reviewable decision”).

7. The Applicant maintained complaints with respect to the reviewable decision and its application of the GIPA Act. Specifically, the Applicant raised the following issues:

1. Unreasonable delay;

2. Long history of breaches by the Respondent;

3. Lack of good faith / improper conduct by the Respondent’s officers;

4. Questionable integrity of the Respondent’s decisions;

5. The reasonableness of the searches conducted by the Respondent;

6. That the Respondent had not provided the Applicant with all the relevant documentation.

8. The matter proceeded to hearing on 2 March 2017. On conclusion of that hearing, the Tribunal had the following written material before it for its consideration of these proceedings:

1. The Applicant’s Application dated 12 July 2016;

2. The Respondent’s reviewable decision dated 5 September 2016 (filed 19 September 2016);

3. The affidavit of Anne Harrison dated 15 September 2016, filed by the Respondent on 16 September 2016;

4. The confidential bundle of s58 documents filed by the Respondent on 16 September 2016;

5. The Applicant’s bundle of evidence and submissions received 1 November 2016, titled “Breaches of the GIPA Act; Sect. 112 Improper Conduct Complaint; Possible Sect. 116, 117, 118, 120 breaches”;

6. The Applicant’s bundle of evidence and submissions in reply received 22 February 2017, in five parts, titled:

1. Part 1: Response to the Respondent’s Submission;

2. Part 2: Summary of Complaints;

3. Part 3: Documents;

4. Part 4: Interpretation of the Act & Scope of review;

5. Part 5: Misc. Integrity of documents & Searches.

7. The Respondent’s submissions dated 9 December 2016;

8. The affidavit of Jenefer Plummer dated 9 December 2016, filed by the Respondent on 9 December 2016.

9. Following the hearing the Applicant sent additional correspondence to the Tribunal regarding these proceedings, in the nature of complaints regarding the conduct of the hearing and requesting an opportunity to make additional submissions, and an application that I disqualify myself from determining the proceedings.

10. 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).

11. 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.

The post hearing correspondence and disqualification application

12. Following the hearing on 2 March 2017 and the decision being reserved, the Applicant forwarded correspondence to the Tribunal on 8 March 2017 which included a request for an opportunity to make additional submissions. He said:

The Applicant raised the matter of requiring to make a submission to the Tribunal in response to the hearing.

The Applicant’s position was that new evidence not previously provided by the Respondent resulting from the oral “evidence” during cross examination did not provide the Applicant the time to reasonably analyse / assess the impact / relevance of the new evidence.

13. Section 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (CAT Act) allows the Tribunal to “take such measures as are reasonably practicable… to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings”, and according to s38(6)(c) of the CAT Act “in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases”. At hearing on 2 March 2017, the evidence of the Respondent’s witnesses was completed prior to the lunch adjournment. The Applicant was given the opportunity to adduce evidence but did not identify anything specific he had not already provided to the Tribunal in writing or orally during the hearing. On the resumption of the hearing after lunch, the parties were informed, in accordance with s38(6)(c) of the CAT Act, that the submissions would be time restricted to allow the hearing to conclude that day. The Applicant was given ample and sufficient time to make submissions, did so, and then confirmed that he had nothing further to add. At the conclusion of the hearing, the Applicant was expressly informed by the Tribunal that the decision was reserved, and no further submissions would be accepted. In those circumstances, to the extent that correspondence sent to the Tribunal by the Applicant after the decision was reserved is an application for leave to file new evidence or submissions, I reject that application.

14. The Applicant forwarded additional correspondence 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”.” This is expressed to be founded on the 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.

15. 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.

16. In these proceedings, the applicant has not identified a logical connection between his apprehension of my conduct, and the issues in these proceedings. Whilst the connection he has drawn may appear logical to him, it is not objectively logical or reasonable. 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.

17. Further, if 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.

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

Substantive application

19. The core of the applicant's complaints relate to two previous applications made under the GIPA Act, known as GIPA #13 and GIPA #17. Many of those complaints were considered by the Tribunal in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, a judgment relating to the review of GIPA #17. At [10], the Tribunal summarised the relevant background, which also applies to these proceedings, as follows:

"... In summary:

the Applicant's allegations relate to two GIPA applications - referred to as "GIPA #13" and "GIPA #17";

there is an overlap between GIPA #13 and GIPA #17. Item 1 of the GIPA #17 access application requested information in respect of GIPA #13;

the GIPA #13 access application was made in 2012. The decision was largely handled by Ms Helen Dickenson. Ms Dickenson and others involved in the processing of GIPA #13 have since Ieft the Respondent;

…

Mr Johnson was the officer primarily responsible for responding to GIPA #17. At times, he worked under the supervision of Ms Elizabeth Verteouris;

In July 2014, the Respondent conceded that GIPA #13 had not been processed in time and that, accordingly, it was not entitled to levy a processing charge;

the Respondent also conceded that the Applicant was entitled to the information requested in item 1 of GIPA #17 and agreed to provide the documentation that had been located in response to GIPA #13;

the GIPA #13 information (which was requested in 2012) was ultimately released on 23 July 2014;

some material was located in relation to item 2 of GIPA #17 and it was released on 30 July 2014;

the Respondent subsequently became aware that GIPA #13 searches had failed to locate some documents. It requested that the Tribunal remit the application so that fresh searches could be performed. The remittal was ordered in November 2014;

a large number of other documents were located and that material, with some redactions, was ultimately released in December 2014 (i.e. GIPA #13 information that was requested in 2012 was not released until December 2014);

during the hearing, the Applicant submitted that referrals under section 112 should be made against a number of officers of the Respondent. He identified a number of officers and conduct that he alleged indicates that the officers had failed to act in good faith;

there is often no clear differentiation between conduct alleged to have been committed by a specific officer and the alleged conduct of the Respondent;

most of the officers who the Applicant has identified were not exercising a function conferred on them "by or under" the GIPA Act and therefore the Applicant's allegations concerning those officers are not within the scope of this request;

the Applicant alleged that officers of the Respondent, including Ms Dickenson, Ms Wiggins and Ms King and various other senior officers, acted inappropriately in the course of dealing with GIPA#13. In particular he contends:

he never received a copy of the decision made in GIPA #13;

during GIPA #13, some material was redacted;

GIPA #13 was not decided within time;

the Respondent initially decided to charge a processing fee;

the decision-makers did not treat various correspondence from him as an application for an internal review;

senior staff within the Respondent (including, at least, Mr Lean), made false and misleading statements and were otherwise inappropriately motivated to obstruct GIPA #13;

Ms Dickenson sent numerous emails to him on 17 April 2012;

the copy of one of the documents which the Respondent released was not legible;

the Respondent failed to respond to the Applicant's complaints about Ms Dickenson;

Ms King may have made a false and misleading statement by emailing that she was not the person the Applicant was trying to contact.

the Applicant alleged that officers of the respondent, including Mr Johnson and Ms Verteouris, acted inappropriately during GIPA #17 by:

refusing to reply to his correspondence of 9 April;

failing to accede to his requests to send all correspondence by email;

initially deciding that the application was invalid and suggesting a rescoping of the application, particularly by omitting parts 2 and 3 of the application;

failing to advise the applicant appropriately regarding his application;

failing to decide the application in time;

inappropriately relying on the excluded information exemption.

the Applicant alleged that those who instructed the Crown Solicitor to make the offer prior to the initial planning meeting acted inappropriately;

…

20. On 3 May 2016, the parties agreed to the terms of the access application which were identical to those at [2] with the exception of Item 7, which instead sought:

Access to all documents referencing in any way GIPA#13, GIPA#17, Zonnevylle, [email protected], issco, from:

1. Documents / correspondence between (Dickenson) & (Johnson and/or Verteouris)

2. Documents / correspondence between (King) & (Johnson and/or Verteouris)

3. Documents / correspondence between (Wiggins) & (Johnson and/or Verteouris)

between Jan 2012 & Dec 2015

21. In the reviewable decision of 5 September 2016, the respondent:

1. granted access to some of the information sought, being information relating to items 1, 2, 5, 6, 9, 11, 12, and 13 of the application, including by creating a new record;

2. decided that the information sought in items 3, 7, 8 and 16 was not held;

3. decided that processing item 4 would require an unreasonable and substantial diversion of resources, and gave the applicant the opportunity to amend the application accordingly;

4. decided, in relation to items 14 and 15, that further search and enquiry was required to determine if the information was held and if it would require an unreasonable and substantial diversion of resources;

5. decided that the information sought in item 10 had been provided to the applicant in earlier access applications; and

6. decided that some of the material located in respect of item 11 of the application was subject to a conclusive presumption of overriding public interest against disclosure because it would be subject to legal professional privilege and decided not to waive that privilege.

22. The applicant’s case can be broadly summarised to be:

1. The Respondent has not conducted adequate or reasonable searches in response to items 3, 7, 8, 9 and 16 of the access application;

2. It would be reasonable for the Respondent to deal with items 4, 14 and 15 despite the diversion of the agency’s resources this would require;

3. The Respondent should waive legal professional privilege with respect to documents sought under item 11;

4. Complaints that:

1. The Respondent’s decision was made out of time;

2. Officers of the respondent and its representatives have been involved in various alleged acts of misconduct or impropriety in connection with this and other access applications.

Tribunal’s jurisdiction and powers

23. The Tribunal’s jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

24. 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, s63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s105(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].

25. 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, s63(3).

The GIPA Act

26. Section 3(1) of the GIPA Act provides:

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.

27. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.

28. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: s9(1) of the GIPA Act.

29. Clause 5 of Schedule 1 to the GIPA Act provides a conclusive presumption of an overriding public interest against disclosure relevant to these proceedings:

5 Legal Professional Privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

30. Where clause 5(1) of Schedule 1 to the GIPA Act is satisfied, there is a conclusive presumption of an overriding public interest against disclosure. The Tribunal has no discretion as to whether or not there is an overriding public interest against disclosure. The Applicant has no statutory entitlement to be provided with government information where there is an overriding public interest against disclosure: Saggers v Environment Protection Authority [2014] NSWCATAD 37 at [83].

31. The Respondent’s obligation to search for information in response to an access application is set out in s 53 of the GIPA Act:

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 reasonably 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.

32. Where an applicant asserts that searches for information conducted in response to an application have not been reasonable, Smith v Pittwater Council [2016] NSWCATAD 67, Camilleri v Commissioner of Police [2012] NSWADT 5 and other previous decisions of the Tribunal and its predecessor including Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 (“Shepherd”) provide that the Tribunal is to approach the question as follows:

1. The tribunal is to first ask whether there are reasonable grounds to believe that the requested information exists and is information of the agency.

2. If the answer to question 1 is “yes”, the Tribunal must then ask itself whether the efforts made by the agency to locate the information have been reasonable in the circumstances of the case.

33. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This requires the applicant to put some credible material or submission before the Tribunal that documents of the requested kind exist. The requirement will not be satisfied by an assertion of non-compliance based on a general distrust of the agency in question: Smith at [68], Camilleri at [13]; Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32].

34. The Respondent bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances. In determining whether reasonable searches have been conducted, relevant considerations include “the clarity of the request, the way the agency’s record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant”: Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].

35. 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.

36. 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.

37. 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.

38. In the circumstances, the findings in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 should not be disturbed in these proceedings.

Reasonableness of searches

39. The Applicant claims that the searches conducted for Items 3, 7, 8, 9 and 16 of the access application were not reasonable. The respondent stated that it had no documents to answer Items 3, 7, 8 and 16. It produced a record in response to Item 9 but the Applicant considers it an insufficient response to his access application.

40. Applying the test in Shepherd, the first step is to determine whether the Applicant has identified reasonable grounds for the Tribunal to believe that the requested information exists and is information of the agency.

41. Item 3 requested access to:

Correspondence / notes / memos / directives between Anne Skewes, Peter Duncan, Michael Coutts-Trotter, Anthony Lean, and GIPA unit referencing GIPA#13 and/or GIPA#17 and/or Zonnevylle

42. In the Applicant’s response to the Respondent’s submissions, and specifically in his submissions dealing with “Sufficienciey of searches (items 3, 7, 8, 9 & 16)” [sic], there is no discernible reference by the Applicant to any information falling specifically within Item 3 that he believes to exist. There is no reference made to Anne Skewes, Peter Duncan, Michael Coutts-Trotter, or Anthony Lean by the Applicant, and no explanation given as to why he believes any of those persons would have or did have correspondence with the GIPA Unit referencing GIPA#13, GIPA#17 or the Applicant. The Applicant has raised generalised allegations of lack of good faith in the Respondent’s searches, but this is insufficient to fulfil the Applicant’s onus in identifying reasonable grounds.

43. Item 7, in its agreed amended form, requested access to:

Access to all documents referencing in any way GIPA#13, GIPA#17, Zonnevylle, [email protected], issco, from:

Documents / correspondence between (Dickenson) & (Johnson and/or Verteouris)

Documents / correspondence between (King) & (Johnson and/or Verteouris)

Documents / correspondence between (Wiggins) & (Johnson and/or Verteouris)

between Jan 2012 & Dec 2015

44. In the Applicant’s response to the Respondent’s submissions, and specifically in his submissions dealing with “Sufficienciey of searches (items 3, 7, 8, 9 & 16)” [sic], the basis for his belief that there are documents falling within Item 7 is said to be:

There are employment overlaps within the Dept. between Johnson, Dickenson & Wiggins.

Johnson’s conduct has to be considered (ref. Summary of Compliants [sic] Johnson)

45. I don’t consider the Applicant’s claimed basis of “employment overlaps… between Johnson, Dickenson and Wiggins” to be a sufficient basis for believing that documents exist of the kind identified in Item 7 of the Applicant’s access application request.

46. In the Applicant’s Summary of Complaints, he states:

2. In Montgomery’s review of GIPA #17 it was stated that Johnson & Veretouris worked together on correspondence to the Applicant.

47. In fact, SM Montgomery stated at [10] of Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47:

Mr Johnson was the officer primarily responsible for responding to GIPA #17. At times, he worked under the supervision of Ms Elizabeth Verteouris.

48. I don’t agree that SM Montgomery’s characterisation of the working relationship between Ms Verteouris and Mr Johnson amounts to a finding that they “worked together on correspondence to the Applicant”. The Applicant’s complaints of Johnson’s conduct largely traverse the same allegations of the respondent’s conduct made in the proceedings before SM Montgomery, in which findings were made. I won’t reopen those findings in these proceedings and don’t believe they provide a reasonable basis for believing that the documents falling within the request at Item 7 exist. It follows that the Applicant has not discharged his onus of providing a reasonable basis for believing that documents exist in answer to Item 7 of his access application.

48. Item 8 of the Applicant’s access application requested:

Time sheets for the original processing of GIPA#13 documentation by Dickenson

50. The respondent, in its reviewable decision, stated in regard to Item 8:

I searched the records held by the GIPA and Privacy team on the processing of GIPA#13. While estimates of your processing times had been made, and used as a basis for determining the fee charged to you for processing the application, I could not locate any final timesheets for GIPA#13.

51. In the Applicant’s response to the Respondent’s submissions, and specifically in his submissions dealing with “Sufficienciey of searches (items 3, 7, 8, 9 & 16)” [sic], the basis for his belief that there are documents falling within Item 8 is said to be:

GIPA#13 was a valid access application processed by Helen Dickenson. Dickenson issued:

i.   Request for advance deposit

ii.   Tax Invoice No. 1005200774 June 28, 2012

iii.   Tax Invoice No. 1005200772 June 29, 2012

The Notice of Decision made on August 10, 2012 by Jenny Wiggins

It is not credible that the searches were unable to locate the associated timesheet for GIPA#13.

52. There is nothing in the Applicant’s submissions which provide a reasonable basis for believing that there were, in fact, a timesheet or timesheets of the type sought by the Applicant in Item 8, in existence. It follows that the Applicant has not discharged his onus of providing a reasonable basis for believing that documents exist in answer to Item 8 of his access application.

53. Item 9 of the Applicant’s access application requested:

Time sheets for the original processing of GIPA#13 documentation for GIPA#17 (Documents to show separate time sheets each time the documentation for GIPA#13 was reprocessed and by whom)

54. The Respondent produced a document in response to Item 9 which the Applicant claims:

…is a “manufactured” document and not the actual time sheet that the Respondent is required to use during the processing of the application

55. There is no requirement for the Respondent to use a particular timesheet or manner of recording time during the processing of an application under the GIPA Act. There is no evidence before me, in these proceedings, that the Respondent had a process in place at the time that GIPA#13 or GIPA#17 was being considered by the Respondent which required the use of a timesheet or any other particular method or manner of recording time by each individual processing those applications, which the Applicant implies. The document produced in answer to the request at Item 9 appears to be a summary of hours logged by individuals in five separate divisions of the Respondent, being NSW Procurement, OFS Legal, OFS Audit, Information Access Unit, and Procurement Board.

56. The Respondent’s evidence in relation to the document produced in answer to the request at Item 9 is in the evidence of Ms Plummer, specifically in her detailed record of the searches she conducted to respond to the Applicant’s access application. She said:

(Part 9) I found a timesheet for the processing of GIPA#17, which had also been provided to NCAT as part of Mr Johnson’s statement re the external review of GIPA#10

57. The statement of Mr Johnson referred to is not in evidence in these proceedings. I can infer from the material before me that Ms Plummer is referring to evidence filed in the proceedings before SM Montgomery in Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175, upon which specific findings were made at [19] to [22] and [25] to [27]:

19. The Respondent relies on the evidence of Mr Johnson in regard to the searches that were undertaken.

20. Mr Johnson provided both open and confidential statements. Since December 2014 he has been a Ministerial Services Officer in the Ministerial Services Unit of the Respondent’s Office of the Chief Executive. Prior to that he was responsible for processing GIPA applications and has maintained this responsibility as part of his new role. He was involved in processing the Applicant's access application after July 2014. He is aware that Ms Helen Dickenson, A/Right to Information Officer, was involved in processing the Applicant's 2012 GIPA application. He is also aware that Ms Dickenson is no longer employed by the Respondent.

21. Mr Johnson provided details of the steps that he took in processing the Applicant's access application. He identified the units that were most likely to hold relevant documents and sent emails to personnel in each unit, detailing the scope of the application and the response required. He provided examples of the request made and the responses received and also provided a timesheet showing the time spent processing the application. The timesheet recorded that 15 staff members, across 5 Units, took a total of 86 hours to search for documents falling within part 1 of the application.

22. Mr Johnson stated that he also searched the archived email accounts of relevant staff members who were no longer employed with the Respondent. Through those searches he was able to locate relevant information that fell within the scope of Part 2 of the application. He did not locate any documents that fell within the scope of Part 3 of the application. He recalled that it took 15 hours to process parts 2 and 3 of the application.

…

25. In this regard, the Respondent submits that the documents that have been identified are, on their face, responsive to the Applicant's application and that there are no reasonable grounds for thinking that other documents would exist. I accept that submission.

26. On the material that is before me I am satisfied that the searches undertaken were reasonable. It is improbable that further searches would locate additional information that falls within the scope of the access application.

27. Accordingly, I accept the Respondent’s assertion that it does not hold some of the information that the Applicant requested.

58. On the basis of those findings, I consider that the request at Item 9 has been complied with by the Respondent. The Applicant has not discharged his onus to provide a basis for the belief that there are additional documents in existence which fall within the request at Item 9 that have not been provided by the Respondent.

59. Item 16 of the Applicant’s access application requested:

Documents / correspondence between DFS GIPA Unit & DEC IA Unit between Jan 2012 & Dec 2015 referencing Zonnevylle

60. The Respondent, in its reviewable decision, stated in reference to Item 16 at 4.1:

I took the “DEC IA Unit” to be a reference to the Department of Education’s Information Access Unit. I conducted a search of all emails to or from the DEC IA unit via DFSI’s ‘[email protected]’ mailbox and found no information that referenced you.

61. It is not disputed that the Applicant’s reference to “DEC IA Unit” is the Department of Education’s Information Access Unit. In the Applicant’s response to the Respondent’s submissions, and specifically in his submissions dealing with “Sufficienciey of searches (items 3, 7, 8, 9 & 16)” [sic], there is no discernible reference by the Applicant to any information falling specifically within Item 16 that he believes to exist. He instead refers back to his submissions regarding Items 13 and 14, neither of which includes documents between the Respondent and the Department of Education. Whilst the Applicant raised generalised allegations of lack of good faith in the Respondent’s searches, this is insufficient to fulfil the Applicant’s onus in identifying reasonable grounds for the belief that documents exist which have not been provided by the Respondent.

62. In the circumstances, with respect to Items 3, 7, 8, 9, and 16 of the Applicant’s access application, I find that the Applicant has not discharged his onus of providing a basis or grounds for the belief that there are documents in existence which the Respondent has not provided. The first limb of the test in Shepherd has therefore not been met.

63. The Respondent’s onus is to satisfy the Tribunal that the searches conducted were reasonable in the circumstances. It is not necessary for the respondent to have discharged this onus where I have found that the Applicant has not first demonstrated that there is a reasonable basis for the belief that there are documents in existence which the respondent has not provided. Nevertheless, on the evidence before me and taking into account the findings made in Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175 and Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, I find that the Respondent has satisfied its onus in proving that the searches conducted by it were reasonable in the circumstances. This includes the evidence of Ms Plummer in relation to the searches she conducted, the inquiries she made, the time spent in following and chasing up information, and her evidence about the record keeping systems of the Respondent, in both her statement and its annexures, particularly Annexures D and E, which included contemporaneous records of her processing of the application. She was cross-examined by the Applicant and I found her to be a straight-forward, reasonable, and credible witness. I accept her evidence.

64. The Applicant made various references in his written submissions to other items in his access application which he believed were not adequately responded to by the Respondent’s production. There is insufficient material before me in relation to any of the other items requested, for which documents have been produced by the Respondent, to find that there is a reasonable basis for the Applicant’s belief that documents are in existence which have not been provided to him by the Respondent.

Unreasonable and substantial diversion of resources

65. The Respondent has not produced documents in response to Items 4, 14 and 15 of the Applicant’s access application, on the basis that doing so would create an unreasonable and substantial diversion of the Respondent’s resources pursuant to s 60(1)(a) of the GIPA Act. In accordance with s60(4) of the GIPA Act, the reviewable decision invited the Applicant to amend his access application with respect to those requests and offered him assistance to do so.

66. In response to that decision, the Applicant submitted that “the specific information [which] is of importance to the Applicant”, and made allegations of false and misleading representations by the respondent in relation to the outsourcing of ICT services. He submitted that:

It is the respondent’s responsibility to store information in such a way that would not be deemed an unreasonable & substantial diversion of resources to search & retrieve

67. I don’t accept that submission. It is a circuitous argument and there is no evidence before me to support it. On the evidence before me from the respondent, which I accept, the substantial use of resources in respect to items 4, 14 and 15 arise not because of the breadth of the request but rather because of the nature of the records sought. Even if the record keeping processes were inadequate, as noted in Camilleri at [15], “The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate”.

68. Item 4 sought:

Email log showing times of all emails received by DFS from the Applicant between April 13, 2012 to April 17, 2012 (email: [email protected])

69. The respondent’s evidence, which I accept, is that accessing the information sought in Item 4 would require the rebuilding of electronic databases from archived records.

70. Items 14 and 15 sought:

14. Documents / Faxes received by the GIPA Unit from Zonnevylle between Jan 10, 2014 & March 1, 2014

15. Documents / The “Received fax log” for GIPA Unit’s fax lines between Jan 10, 2014 & March 1, 2014. Fax log to detail at least first 4 digits of senders Fax No., time of receiving fax & number of pages received

71. It was also the Respondent’s evidence that the fax machines which would have received the documents or logged the information sought in Items 14 and 15 were no longer in use and would also need to be restored from archived backups, with no guarantee of success. I accept the evidence from the Respondent that inquiries were made with the Respondent’s ICT provider, and that those inquiries resulted in the estimate that obtaining the information sought under the Applicant’s access application Items 4, 14 and 15 would take up to six weeks, to rebuild electronic databases from tape records and to then conduct the searches for information requested.

72. The question is whether this amounts to an unreasonable and substantial diversion of resources. The decision in Colefax No 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 Cianfrano on the basis of the different statutory scheme considered there under the former Freedom of Information Act. 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:

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.

73. 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.

74. In my view, 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. With reference to the objects of the GIPA Act and the decision in Colefax No 2, a few factors exemplify why providing access to the Applicant of the information requested in Items 4, 14 and 15 would be an unreasonable and substantial diversion of the Respondent’s resources.

75. Firstly, the significance or importance of the documents sought to the Applicant. In most cases, the reason for an applicant seeking access to government information is not relevant. However, here the applicant has stated that the information in Item 4 is sought for the following reasons:

Re item 4 of the access application

This information relates to the complaint that Dickenson spammed the Applicant with over 250 identical emails.

The Applicant will allege that the Respondent is seeking to prevent evidence from being released which substantiates the Applicants complaints.

76. The Respondent submits that the allegation is denied, is not particularised or evidenced in any way by the Applicant, and ought not to form a basis upon which to require a substantial diversion of the respondent's resources. The Respondent further submitted that large parts of the present application amount to attempts to reopen previous applications, and this “militates against the reasonableness of a large diversion of the applicant's resources”. I agree. The conduct of Ms Dickenson in dealing with the Applicant’s access applications, and the Applicant’s complaints regarding that conduct, is the subject of findings in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, in which SM Montgomery refused the Applicant’s request to refer the Respondent or its officers under s112 of the GIPA Act. On the basis of those findings and on the evidence before me in these proceedings, it appears that the Applicant’s request for information at Item 4, 14 and 15 is made entirely for the purpose of obtaining evidence to support allegations which have already been dealt with by this Tribunal in those previous proceedings, for the purpose of attempting to reopen findings the Tribunal has already made. I find therefore that the significance or importance of the documents sought is minimal.

77. Secondly, on the Respondent’s evidence, which I accept, a period of 55.5 hours has already been spent in processing the access application. The substantial further time required for a search for the information sought in item 4, as described in the Statement of Jenefer Plummer, is not reasonable in the circumstances of the request, and especially so in these circumstances where there is no guarantee from the Respondent’s ICT provider that the rebuilding of the archived information for the purpose of searching it would be successful. With respect to items 14 and 15, relating to fax logs and fax records, the respondent’s evidence confirmed the position anticipated in its reviewable decision, that a similar process would be required for fax recovery as for email recovery sought in Item 4. I accept that evidence and the submission that undertaking that recovery and search process would amount to a substantial diversion of the Respondent’s resources. In these circumstances, considering the importance or significance of the information sought is minimal, I agree that the substantial diversion of the Respondent’s resources would be disproportionate and therefore unreasonable.

78. Two additional issues were raised by the Applicant at hearing with respect to the Respondent’s submissions regarding the meaning of “unreasonable and substantial diversion of resources”. First, that the 40 hour timeframe described in Cianfrano and applied in subsequent decisions of this Tribunal as being indicative of a “substantial” period of time spent in processing an access application, should not be considered a threshold after which an access application was considered an unreasonable and substantial diversion of resources. I agree that there is no hard threshold of 40 hours, and so much was expressed in Colefax No 2 at [28]:

With respect to the 40 hour consideration referred to by the President in Cianfrano, the Tribunal in that case accepted evidence that a request taking more than 40 hours to process would be a cause for concern to those responsible for processing it. Considerable caution needs to exercised with respect to that finding. It was made in the context of the facts and evidence in that case, and should not be taken as establishing something in the nature of a 40-hour rule.

79. The Tribunal in Colefax No 2 also added an additional consideration for the purpose of determining whether an access application was an unreasonable and substantial diversion of resources. It compared the estimated time which would be required to answer the access application with the time allowed by the GIPA Act for processing the application, at [44]:

The Agency is a large department, which like the rest of government is suffering constraints of budget and personnel. The call on its resources to process the requests will require the devotion of a significant number of employee hours, and will place a substantial call on its available resources. The minimum time likely to be taken by one officer in processing GIPA 12-30 (20 seven hour days) equals the time the GIPA Act allows for the processing of the application.

80. In these proceedings, the evidence from Ms Plummer was that, based on correspondence with the external ICT (Information and Communications Technology) provider engaged by the Respondent, Unisys, the information sought in Item 4 of the access application would require the recovery of several email accounts, and the time it would take to provide the information sought in item 4 would be approximately six weeks at a rate of $900 per day. The evidence from Ms Plummer in relation to items 14 and 15 was that based on correspondence with Unisys, the provision of the information requested would take a similar amount of time to that of Item 4, being six weeks, because the fax records would similarly need to be recovered by Unisys.

80. What will be considered an excessive or unreasonable amount of processing time will depend on the circumstances of each case and, as discussed above, is a matter for the decision maker or the Tribunal to determine with reference to the objects of the Act. In the circumstances of this application, undertaking the necessary steps to rebuild archived material to access the information sought, a process which was estimated to take six weeks, is unreasonable.

81. The other issue raised by the Applicant in written submissions and at hearing in relation to the application of s60(1)(a) of the GIPA Act was the use of third party contractors by the Respondent, and whether they could be considered the Respondent’s “resources”. The Applicant submitted:

The Applicant alleges false & misleading representations by the Respondent.

On reading of Page 5 of the Notice of Decision (SoJP Doc. C)

a. the DFS has outsourced it's ICT services to Unisys

b. Unisys has a contract with the DFS

c. Unisys would be undertaking the time & resources to retrieve the information

d. On the basis that there is a contract with Unisys then

i. lt is Unisys which is doing the recovery (NOT THE RESPONDENT)

ii. lt is not the resources of the Respondent being used to recover the data

iii. As a contractor,it is assumed that data recovery is part of the services paid for under the contract

iv. The "six weeks" required for the rebuild of the electronic databases is being performed not by DFS but the contractor

e. lf the above is correct then clearly the Respondent has made an allegedly blatant false & highly misleading statement regarding the application of sect.60.1.a.

f. On review of SoJP Doc G, there is no mention of extra costs required for the rebuild of the electronic database.

The Applicant challenges the integrity of the Respondent to make these assertions

Furthermore:

g. Unisys is hardly an independent party as they are being paid by DFS.

83. Aside from those assertions, there was no evidence put before the Tribunal which would suggest that the Respondent’s actions in outsourcing its ICT services was impermissible or a breach of its obligations under the GIPA Act or any other legislation, so I reject the Applicant’s submissions on this issue. In any event, if it was the case that the tasks to be undertaken by Unisys in retrieving and accessing the Respondent’s information were not considered part of the Respondent’s “resources” within the meaning of the GIPA Act, the provisions of s 53(1) of the GIPA Act would apply to the effect that the Respondent’s obligation to conduct searches was limited because the information was not being held by it, and s53(4) of the GIPA Act to the extent that the information was contained in archived back-ups.

84. Accordingly I find that complying with Items 4, 14 and 15 of the Applicant’s 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.

85. The invitation contained in the reviewable decision for the Applicant to amend his request in relation to Item 4 was not taken up by the Applicant. However, doing so would be a difficult task for the Applicant, considering that the time estimated by the Respondent was based on the necessity to unarchive and restore the relevant email addresses and fax number records. It is possible that this timeframe would have been applicable for any archived information sought, irrespective of volume or quantity, on the basis that the process of unarchiving and restoration took the bulk of the time estimated by the external ICT provider Unisys. I accept the Respondent’s evidence that the Applicant was given adequate opportunity in compliance with s60(4) of the GIPA Act to amend his application and did not do so.

Information already provided to the Applicant

86. The Respondent refused to deal with Item 10 of the applicant’s access application on the basis of ss 58(1)(e) and 60(1)(b1) of the GIPA Act.

87. Item 10 sought:

Documents detailing what original GIPA#13 information was re-used in GIPA#17 from when Dickenson processed GIPA#13

88. The Respondent in its submissions referred to the Tribunal’s decision in Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47 to demonstrate that the request at Item 10 was an attempt by the Applicant to re-litigate a previous application. The Applicant’s response to that submission included:

j. The Respondent’s constant referral to:

Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 which is alleged to have numerous errors of law is alleged to be a clear indication of the systemic lack of good faith that the Respondent has towards the Applicant.

39. The Applicant will allege that the Respondent has deliberately misinterpreted the context of Item 10

…

c. Item 10 clearly requires documents with the details of tasks/functions carried out by Johnson in the processing of GIPA#17

This documentation was not provided to the Applicant.

89. Whilst I do not think the terms of Item 10 are expressed in the manner alleged by the Applicant in his submissions – ie that “Item 10 clearly requires documents with the details of tasks/functions carried out by Johnson in the processing of GIPA#17”, when in fact the request seeks “Documents detailing what original GIPA#13 information was re-used in GIPA#17 from when Dickenson processed GIPA#13”, it is nevertheless clear from the findings in Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175 at [21] that this matter has already been litigated and determined by the Tribunal.

90. I accept the Respondent’s submissions in relation to Item 10. It is clear from the evidence in these proceedings and the decisions in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 and Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175 that the Applicant has already been provided with access to the information concerned, and the request should be refused pursuant to s60(1)(b1) of the GIPA Act. It is also clear from the Applicant’s submissions in these proceedings, as illustrated above, that he is continuing and will continue to relitigate matters and attempt to reopen findings which have already been determined or made by the Tribunal on the basis of his belief that those matters were determined incorrectly or inappropriately. Using the public right to access government information provided by the GIPA Act to do so is, in my opinion, an abuse of process, especially in circumstances where errors of law are alleged but appeals against the Tribunal’s decisions are not made.

Information subject to legal professional privilege

91. The Applicant sought access to the following documents in his request at Item 11:

Documents / correspondence between GIPA Unit & Chandler referencing GIPA#17 and/or GIPA#13 and/or Zonnevylle

92. In the reviewable decision, the Respondent identified 44 documents falling within the parameters of Item 11, of which 3 were released and the remaining 41 were withheld on the basis that they were protected by legal professional privilege. The Statement of Anne Harrison explained why each of those documents, which were provided to the Tribunal on a confidential basis pursuant to s107 of the GIPA Act, was subject to legal professional privilege.

93. It is clear from the documents released to the Applicant that “Chandler” referred to in the request for access application, is “Rosemary Chandler”, who is identified in the evidence before the Tribunal as a Principal Solicitor in the Legal Services division of the Respondent.

94. Legal professional privilege raises a conclusive presumption of an overriding public interest against disclosure, pursuant to s 14(1) and cl. 5 of sch. 1 of the GIPA Act. Clause 5 provides:

5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

95. To the extent that the applicant's complaints with respect to item 11 are made on the basis that the respondent ought to have waived privilege over the withheld documents, that complaint is not within the jurisdiction of the Tribunal.

96. The principle of legal professional privilege as it applies in the context of applications under the GIPA Act is well established. The weight of authority is that legal professional privilege under the GIPA Act refers to the concept as defined in s 118 of the Evidence Act 1995: Singh v Legal Aid Commission(No 2) [2015] NSWCATAD 5 at [61]. Section 118 provides:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that

adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a

lawyer; or

(b) a confidential communication made between 2 or more lawyers

acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers,

providing legal advice to the client."

97. The applicant's submissions with respect to legal professional privilege included questioning whether:

1. there is a legitimate client lawyer privilege where Chandler is an employee of the DFS;

2. the DFS can give legal advice to itself;

3. Chandler could be “independent” as employee of the same agency, and whether Chandler's section billed the GIPA unit for her services;

4. there an established “client” and “lawyer” within the meaning of s118 of the Evidence Act 1995.

98. The Applicant also included in his submissions statements about the role of the Tribunal in determining whether something fell within the meaning of s118 of the Evidence Act, including:

The Tribunal has the obligation & jurisdiction to ensure that “legal advice” is within law (i.e. does not breach an Act, statutory law, etc)

99. The Tribunal does not have an obligation, or jurisdiction, to determine whether particular legal advice was “within law”, only to determine whether legal professional privilege is properly claimed by deciding whether relevant documents are confidential documents or communications prepared for the "dominant purpose" of a lawyer providing legal advice to the respondent.

100. According to the Respondent’s evidence, of the 41 documents initially withheld, 4 have since been reconsidered and released to the applicant, being documents 8, 15, 34 and 41. Each document is described in the Statement of Anne Harrison of 15 September 2016 and the schedule to that statement.

101. The 37 remaining withheld documents contain either:

1. Communications between the respondent and the Crown Solicitor, made for the dominant purpose of providing legal advice to the respondent, or communications between officers of the respondent forwarding or discussing such communications with the Crown Solicitor (documents 1-7, 9, 10, 13, 14, 16-33 and 35-40); and

2. Communications between a legal officer of the respondent and another officer of the respondent in respect of advice as to the processing of an access application made by the applicant (documents 11-12).

102. The documents in the first category are self-evidently subject to legal professional privilege, on the basis that they reveal confidential communications between the respondent and its lawyer, the Crown Solicitor, which were made for the dominant purpose of giving legal advice within the meaning of s118 of the Evidence Act 1995.

103. The second category of documents (documents 11 and 12) reveal a confidential communication made by an "in-house" lawyer, being an officer of the respondent. In cases where privilege is claimed over documents created by a lawyer employed “in house”, the case law requires that the lawyer have a degree of independence in respect of the advice given: Seven Network Ltd v News Ltd [2005] FCA 142.

104. Whilst the applicant has questioned the independence of Ms Chandler, he has not provided any evidentiary basis for questioning her independence, other than questioning whether her section “billed” for their services. The Respondent relies on the evidence as to independence contained in the Statement of Anne Harrison. The Applicant did not question Ms Harrison on her evidence except to confirm that she had started working for the Respondent on 20 May 2016, and had no personal recollection of actions taken prior to that date with respect to the access application. Her evidence as to the independence of Ms Chandler, and the basis for claiming legal professional privilege over documents 11 and 12 is therefore accepted by the Tribunal.

105. Having reviewed the evidence, I accept the Respondent’s submissions entirely with respect to the claims for legal professional privilege over the withheld documents produced in answer to the request at Item 11 of the access application.

The Applicant’s complaint of delay

106. The Applicant’s written and oral submissions focused on his complaints regarding the Respondent’s conduct in dealing with his various access applications. In relation to the access application subject to these proceedings, the Applicant makes specific complaints of delay caused by the Respondents resulting in, according to the Applicant, abuse of the GIPA Act and a lack of good faith in exercising the functions conferred on them by the GIPA Act.

107. The issue of delay under the GIPA Act is relevant to two considerations. The first is that delay in processing an application according to the strict timeframes provided in the GIPA Act will impact the ability of an agency to charge processing fees in relation to the application. The second is that delay by an agency can form part of a complaint about conduct. Both issues are raised by the Applicant in these proceedings.

108. On the evidence, the access application made by the Applicant on 12 April 2016 was required to be determined by 10 May 2016 according to s 57(1) of the GIPA Act. On 10 May 2016 the Respondent sought an extension by consent from the Applicant to 16 May 2016, seemingly pursuant to s57(4) of the GIPA Act. The Applicant sought clarification on various issues from the Respondent by correspondence, but did not consent to an extension of time, so on 13 May 2016 the Respondent informed the Applicant that the application would be “processed as a late decision under s63(2) of the GIPA Act”, and confirmed that “under s63(1), s63(3) and s63(4) of the GIPA Act your application fee will be refunded and no processing charge can be imposed”.

109. The Applicant and Respondent continued to communicate via email regarding the scope of the access application and on 2 June 2016 Ms Plummer asked the Applicant if he had received the refund on the application fee. On 6 June 2016 the Applicant informed Ms Plummer that he had not received the refund. On 15 June 2016 Ms Plummer sought information from the Applicant in order to process the refund, which was provided to her on 16 June 2016. The application fee was refunded to the Applicant.

110. On the basis that the Respondent refunded the Applicant’s application fee, and did not charge him any processing fees, the only issue before the Tribunal in relation to the Respondent’s delay in processing the application is therefore whether and to what extent any delay can form a basis for the Applicant’s complaints or allegations against the Respondent and its officers.

111. The period of time being complained of by the Applicant as the Respondent’s delay is the period between 12 April 2016, when the Respondent received the access application, and 5 September 2016, when the reviewable decision was made by the Respondent.

112. The Respondent’s affidavit of Jenefer Plummer addresses the Respondent’s delays in dealing with this access application at [7]:

The delay in the processing of the application was caused by its high level of complexity, including sourcing documents from five different areas of the Department; the receipt of 91 documents of approximately 300 pages in response to one part of the request; the need to categorise each document and to assess it for any concerns relating to the privacy of third parties or other public interests against disclosure; and the need to make inquiries in relation to material archived by a private contractor.

113. The Respondent’s actions in dealing with the access application are recounted at paragraphs 3 to 6 above. The Applicant specifically requested assistance from the Respondent on several occasions, both in the access application itself and in its email correspondence, in terms such as:

Advice & assistance required

I request that you provide me with the necessary assistance to make this application an application which:

Is valid

Remains valid such that the amended application is not determined to be an unreasonable & substantial diversion of resources or otherwise

Will give me access to as much of the information I have requested in initial or amended form as possible

114. In those circumstances, in the context of the Respondent’s attempts to narrow and clarify the Applicant’s requests, the Respondent engaging in extensive correspondence with the Applicant in an attempt to respond to the Applicant’s concerns and questions, and the commencement of proceedings in the Tribunal on 12 July 2016 and subsequent case management, I do not consider the delay unreasonable and I find that the Respondent’s delay in dealing with this access application does not support the Applicant’s complaints.

The Applications pursuant to sections 112, 116, 117, 118, and 120 of the GIPA Act.

115. Much of the Applicant’s extensive written submissions were concerned with his request for the Tribunal to refer the Respondent’s conduct to the Minister pursuant to s112 of the GIPA Act, complaints that the Respondent and its officers had breached various provisions of the GIPA Act or demonstrated a “lack of good faith” in exercising their functions, and for the Tribunal to find that the Respondent had committed offences pursuant to ss116, 117, 118 and 120 of the GIPA Act.

116. The basis for a referral under s112 of the GIPA Act has been considered in previous proceedings involving the Applicant, including Zonnevylle v Department of Education [2017] NSWCATAD 101; Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, as well as 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. I adopt the guidance provided by those authorities in my consideration of the application of s112 of the GIPA Act in these proceedings.

117. The allegations made by the Applicant against the Respondent and its officers incorporated many of the same allegations raised in previous proceedings in this Tribunal by the Applicant. These allegations traversed evidence filed in other proceedings and previously considered by the Tribunal, and which were the subject of submissions regarding misconduct, lack of good faith, and lack of integrity. As referred to above, I will not reopen findings made by this Tribunal in previous proceedings.

118. I agree with the Respondent’s submission that “the applicant’s attempt to re-litigate the questions of a referral under s112 in respect of the processing of GIPA #13 and GIPA #17 amounts to an abuse of process”. To the extent that the Applicant’s complaints refer specifically to the conduct of the Respondent in dealing with the access application subject to these proceedings, taking into consideration the evidence, including my findings on the issue of delay, there is insufficient basis on the evidence before me to make a referral under s112 of the GIPA Act with respect to any officer’s conduct. I therefore decline to make the requested referral under s112 of the GIPA Act.

115. In relation to the Applicant’s complaints and allegations regarding the Respondent’s breaches of ss116, 117, 118, and 120 of the GIPA Act, s128 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.

120. 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.

Conclusion

121. For the reasons outlined, the correct and preferable decision is for the Tribunal to affirm the Respondent’s reviewable decision of 5 September 2016.

122. The Tribunal finds insufficient basis for referring the conduct of any of the Respondent’s officers pursuant to s112 of the GIPA Act, and has no jurisdiction in relation to alleged breaches of ss116, 117, 118, and 120 of the Act.

Orders

1. The Tribunal affirms the Respondent’s decision of 5 September 2016.

2. The application for a referral pursuant to s112 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

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: 15 June 2017