Zonnevylle v Department of Justice

[2024] NSWCATAD 357

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zonnevylle v Department of Justice [2024] NSWCATAD 357

Hearing dates:

17 May 2024, 20 June 2024, 6 and 21 August 2024.

Date of orders:

29 November 2024

Decision date:

29 November 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW — Access to government information — whether unreasonable and substantial diversion of agency resources — balancing exercise.

PRACTICE AND PROCEDURE — request for the issue of summonses — no forensic purpose — request after the final hearing.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Government Information (Public Access) Amendment Act 2018

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Cianfrano v Director General, Premier’s Department [2006] NSWADTAP 48

Colefax v Department of Education and Communities No 2 [2013] NSWADT 130

Commissioner of Police v Danis [2017] NSWCATAP 7

Department of Education v Zonnevylle [2020] NSWCATAD 96

Hickey v Secretary, Department of Education [2021] NSWCATAD 306

Loussikian v University of Sydney [2018] NSWCATAD 140

Minister for Education and Early Childhood Learning [2019] NSWCATAD 108

Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232

Ruyters v Commissioner of Police [2020] NSWCATAD 223

Webb v Secretary, Department of Communities and Justice [2024] NSWCATAD 238

Zonnevylle v Department of Education [2017] NSWCATAD 101

Zonnevylle v Department of Education [2017] NSWCATAD 214

Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274

Zonnevylle v NSW Department of Justice [2021] NSWCATAD 175

Texts Cited:

NCAT Policy 6: Communicating with the Tribunal and Members

Statutory Review; Government Information (Public Access) Act 2009 and Government Information (Information Commissioner) Act 2009

Category:

Principal judgment

Parties:

Peter Zonnevylle (Applicant)
Department of Justice (Respondent)

Representation:

Applicant (self-represented)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2020/00283065

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application for review in relation to a decision by the respondent made under the Government Information (Public Access) Act 2009(NSW) (GIPA Act). The decision was made by the respondent and notified to Mr Zonnevylle by notice dated 29 May 2020. Mr Zonnevylle requested a review by the Information Commission. On 28 August 2020 the Information Commissioner concluded that the respondent’s decision was justified and made no recommendations to the respondent.

2. Mr Zonnevylle lodged his application for review in this Tribunal on 29 September 2020. There is no dispute that the application was filed within the relevant period. The application is made pursuant to the Tribunal’s administrative review jurisdiction under s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).

3. Mr Zonnevylle seeks the review of the decision of the respondent to refuse to deal with his access application. The basis for the refusal is that it would require an unreasonable and substantial diversion of its resources for the respondent to deal with the application.

4. There is an extensive procedural history to the proceedings prior to the matter being listed for hearing. A summary of the key aspects of this history is outlined below. After the proceedings were commenced there was a direction made by the Registrar of the Tribunal in 2021 that all further communications by Mr Zonnevylle be made by post and not through email.

5. The matter was listed for hearing on 17 May 2024. The parties made submissions and Mr Michael McIntosh, principal solicitor in the Open Government Information and Privacy unit (OGIP) of the respondent, gave evidence. The hearing was not concluded on this day and the proceeding was listed for further hearing on 20 June 2024 for the parties to make submissions. At this hearing Mr Zonnevylle stated that he had sent correspondence to the respondent and the Tribunal proposing certain amendments to his request. Mr Zonnevylle was directed to provide any amended request to the respondent and the Tribunal by 26 June 2024 and the respondent was directed to provide any response by 5 July 2024.

6. The respondent requested an extension of time and filed submissions and further evidence from Mr McIntosh addressing the proposed amendments on 12 July 2024. Given the proposed amendments were lengthy, I agreed to the extension of time. The matter was listed for further hearing on 6 August 2024 to give Mr Zonnevylle the opportunity to cross examine Mr McIntosh on his further affidavit. Mr Zonnevylle objected to the respondent being given an extension of time and to the late service of the documents and requested an adjournment, to which I agreed, and on 21 August 2024, the matter was listed for hearing for 2 hours. Mr Zonnevylle requested further time for cross examination and the hearing was extended.   .

7. Mr Zonnevylle did not participate in any of the hearings in person and requested leave to participate by telephone. This leave was given.

8. The parties were directed to provide any further submissions in accordance with a timetable, with Mr Zonnevylle directed to provide any submissions by 24 September 2024, the respondent to provide submissions in response by 15 October 2024 with any reply submissions by Mr Zonnevylle by 29 October 2024.

9. After the hearing, Mr Zonnevylle made further applications to the Tribunal, including making an application for the issue of summonses. The summonses were not issued, and no further submissions were received relating to the substantive application as directed.

10. I have decided to affirm the decision under review. My reasons follow.

Statutory Framework

11. The GIPA Act was introduced in 2009 to facilitate public access to government information.

12. Section 3 provides that the object and intent of the GIPA Act is as follows:

(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.

13. The objects are reflected in the provisions of the GIPA Act. Part 2 sets out the General Principles for Open Government Information. Notably, s 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9 provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.

14. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that nothing in the GIPA Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of public information. Examples of public interest considerations in favour of disclosure are set out in the Note to s 12 as follows:

Note--:The following are examples of public interest considerations in favour of disclosure of information--

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

15. Section 13 sets out how the public interest test must be assessed and provides that there is an "overriding public interest against disclosure" if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 14 of the GIPA Act identifies the public interest considerations against disclosure, which must fall within the specified grounds. Some grounds are conclusive, and the other grounds must fall within the description of the seven categories of documents enumerated in the Table to s 14(2). Relevant to the matters raised in this case is the claim that certain information that may be responsive to the access application is likely to include documents subject to legal professional privilege (refer s 14(1) and Schedule 1 of the GIPA Act) or that the information may include personal information of another party, which may involve considerations under clause 3(a) of the Table to s 14(2) of the GIPA Act.

16. Section 15 of the GIPA Act sets out the principles that apply to agencies and, relevantly, to the Tribunal, when making a determination as to whether there is an overriding public interest against disclosure of government information. Relevantly, agencies must exercise their functions so as to promote the object of the GIPA Act.

17. Under s 16, agencies are required to provide advice and assistance to an access applicant. Mr Zonnevylle has raised concerns about whether the respondent has discharged this obligation, and it is therefore apt to extract this provision in its entirety. Section 16 provides:

16 Agencies to provide advice and assistance

(1) An agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available.

(2) An agency must provide the following specific advice and assistance to a person who requests access to government information--

(a) advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed,

(b) advice on how to make an access application for the information if the information is not publicly available from the agency but appears likely to be held by the agency,

(c) if the information appears unlikely to be held by the agency but appears likely to relate to the functions of some other agency, the contact details of the other agency,

(d) the contact details of the Information Commissioner and advice on the availability of and how to access any information published by the Information Commissioner that it appears may be relevant to the person's request.

(3) An agency is only required to provide advice and assistance under this section that it would be reasonable to expect the agency to provide.

18. Part 3 deals with Open Access Information, namely the information that agencies are required to make publicly available.

19. Part 4 deals with Access Applications and Division 3 contains the provisions relating to the process for dealing with access applications. Section 53 of the GIPA Act sets out the obligations of an agency and the searches it must undertake once a request for information is received. 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 searches must be conducted using the most efficient means reasonably available to the agency and includes using any resources reasonably available to facilitate the retrieval of information stored electronically. Section 53(5) provides that an agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

20. Section 54 provides that an agency must take such steps, if any, as are reasonably practicable to consult with a person before providing access to the government information if the information is of a kind that requires consultation under the section, for instance, where the information includes personal information about a person (s 54(2)(a) of the GIPA Act). Section 55 states that an agency is entitled to take into account personal factors of the application, both in favour and against disclosure.

21. Division 4 includes the provisions relating to deciding access applications.

22. Section 57(1) provides that an agency must decide an access application and give notice of the decision within 20 working days after it receives the application. This period can be extended in certain circumstances: ss 57(2)–(6).

23. Section 58(1) provides that applications for review are to be decided by the agency:

1. deciding to provide access to the government information, or

2. deciding that the information is not held by the agency, or

3. deciding that the information is already available to the applicant (see s 59), or

4. deciding to refuse the application because there is an overriding public interest against disclosure of the information, or

5. deciding to refuse to deal with the application (see s 60), or

6. deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

24. Section 58(2) provides that more than one decision can be made in respect of a particular access application.

25. Section 60, which is extracted in full given it is central, provides as follows:

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,

(e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is--

(i) a party to current proceedings before a court, and

(ii) able to apply to that court for the information.

(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.

(3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations--

(a) the estimated volume of information involved in the request,

(b) the agency's size and resources,

(c) the decision period under section 57.

(3B) Any consideration under subsection (3A) must, on balance, outweigh--

(a) the general public interest in favour of the disclosure of government information, and

(b) the demonstrable importance of the information to the applicant, including whether the information--

(i) is personal information that relates to the applicant, or

(ii) could assist the applicant in exercising any rights under any Act or law.

(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.

26. Part 5 of the GIPA Act deals with the review of decisions. It provides for internal review, review by the Information Commissioner and external review by the Tribunal.

27. Section 80 sets out the decisions of an agency which are “reviewable decisions” for the purposes of Part 5 of the GIPA Act. A decision to refuse to deal with an access application is reviewable (s 80(c)).

28. Section 100 provides that a person who is aggrieved by a reviewable decision may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 63 of the ADR Act provides that the Tribunal must make the “correct and preferable” decision based on the material before it at the time of the decision. In determining the application for review, the Tribunal may decide to affirm or vary the decision or set aside the decision and make a decision in substitution or set aside the decision and remit the matter for reconsideration by the administrator, in this case the respondent, in accordance with any directions or recommendations of the Tribunal. The onus is on the agency to justify access decisions made under the GIPA Act (s 105).

29. Section 109 provides that the Tribunal may refuse to review or deal further with a review of a decision of an agency if the Tribunal is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance. Section 110 enables the Tribunal to order that a person is not permitted to make an access application without first obtaining the approval of the Tribunal if the Tribunal is satisfied about certain matters set out in the section. This is known as a restraining order. This is relevant because the Tribunal made a restraining order in relation to Mr Zonnevylle in Department of Education v Zonnevylle [2020] NSWCATAD 96. Some of the information requested by Mr Zonnevylle falls within the periods when these issues were being considered and it is therefore submitted that there is potentially a large volume of documentation that may respond to the request.

26. The Tribunal may refer any matter to the Information Commissioner that it considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally (s 111). Under s 112, the Tribunal may, on the completion of an administrative review, bring to the attention of the relevant Minister with the responsibility for the agency improper conduct where the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred on the officer or under the GIPA Act.

27. Part 6 sets out the protections and offences under the GIPA Act. Section 116 provides that an officer of an agency must not make a reviewable decision in relation to an access application that the officer knows to be contrary to requirements of the GIPA Act. Section 117 provides that it is an offence for an officer of an agency to direct unlawful actions in respect of an access application. Section 118 provides that it is an offence to improperly influence a decision on an access application. Section 120 provides the person who destroys, conceals or alters any record of government information for the purpose of preventing disclosure as authorised is guilty of an offence.

28. Section 126 sets out the requirements for notices under the GIPA Act and provides that notices must be in writing, the notice must include the date of the decision and a statement that gives details of any right of review provided under the Act and must not disclose any information for which there is an overriding public interest against disclosure. Relevant to this case, because Mr Zonnevylle takes issue with the approach adopted by the respondent, the agency must include the contact details of an officer of the agency to whom enquiries can be directed in connection with the decision.

29. Section 128 provides that proceedings for an offence under the act or regulations may be dealt with summarily before the Local Court and that they may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.

30. There is no dispute that Mr Zonnevylle did not make an application for his personal information under the Privacy and Personal Information Protection Act 1998 (NSW) PIPP Act. However, because Mr Zonnevylle makes a submission about this legislation and advice that he says should have been provided to him, it is relevant to set out the details of an alternative application that may have been made by Mr Zonnevylle to get access to his information. Section 14 of the PPIP Act provides that a public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. Unlike s 60(1)(a) of the GIPA Act, there is no limit on access to an individual’s personal information.

Decision under review

35. Mr Zonnevylle made an application to access information from the respondent on 6 January 2020. The access request was assessed by a delegate of the respondent. Access applications are processed and managed by the Open Government Information Privacy unit (OGIP) of the respondent. In this case, Mr Zonnevylle’s application was processed by an officer who was identified as “Chris King”. It is apparent from the correspondence from Lida Kaban (from the Office of General Counsel) that the officer who processed the application was not “Chris King” and that this was a pseudonym used for the officer who dealt with the application. This correspondence, and the reason for the approach taken by OGIP, is set out later in these reasons.

36. By letter dated 23 January 2020, Mr Zonnevylle was invited to narrow the scope of the documents requested. There was correspondence between Mr Zonnevylle and the respondent between February and April 2020 which did not resolve the dispute about the nature and scope of the request for access to information and by decision dated 29 May 2020, the delegate refused the application.

37. In undertaking administrative review, the role of the Tribunal is to make the correct and preferable decision based on the material available at the time of the decision. The Tribunal is not bound by any findings of the original decision-maker, but it is useful to consider the reasons for the decision under review because it provides a convenient outline of the material available at the time of the original decision and the issues in dispute.

38. The decision details the information requested by Mr Zonnevylle and records 13 items that have been requested, a number of which have additional but related items listed within each category. The decision outlines the various communications between the respondent and Mr Zonnevylle after the application was received but before the refusal. These communications are relevant given s 60(4) which provides that an agency must give an applicant a reasonable opportunity to amend the application before refusing to deal with the application because dealing with it would require an unreasonable and substantial diversion of the agency’s resources. In summary those communications were as follows:

1. On 23 January 2020, a delegate of the respondent wrote to Mr Zonnevylle informing him that the scope of his application in present terms would require an unreasonable and substantial diversion of the respondent’s resources because a preliminary estimate indicated it would take approximately 55 hours to conduct searches for information. Mr Zonnevylle was invited to consider narrowing the terms of his application.

2. By letter dated 8 February 2020, Mr Zonnevylle requested additional information so he could make an informed decision to re-scope the terms of his application.

3. By letter emailed on 25 February 2020, incorrectly dated 23 January 2020, the respondent provided Mr Zonnevylle with information in response to various queries outlined in his letter dated 8 February 2020.

4. Mr Zonnevylle emailed the respondent seeking a response to a number of questions, to which the delegate provided a response on 11 March 2020.

5. By emails dated 12 and 27 March 2020, Mr Zonnevylle emailed the respondent requesting, amongst other things, details of the delegate’s employee identify identification number. Mr Zonnevylle made an allegation that the respondent was involved in systemic conduct and there was a failure to act in good faith. After these emails, the delegate requested that all future communications be restricted to Australia Post delivery.

6. On 24 April 2020, the delegate wrote to Mr Zonnevylle suggesting that he may wish to consider limiting the terms of his application such that the combined total search time is no more than 15 hours. He was requested to provide any amended terms by 28 May 2020. Mr Zonnevylle did not provide any amended proposal.

39. Against the background as described in the decision, the delegate stated that she had decided to refuse to deal with the application under s 58(1)(e) of the GIPA Act on the basis that to do so would require a substantial and unreasonable diversion of the respondent’s resources. It was noted that under the GIPA Act, an agency must give the applicant of reasonable opportunity to amend the application before refusing to deal with the application on the grounds that it would require an unreasonable and substantial diversion of the agency’s resources. The delegate noted that she had regard to the numerous letters attempting to assist Mr Zonnevylle to refine the terms of his application and the length of time that had elapsed from the date he was informed that his application in its present terms would require an unreasonable diversion of the respondent’s resources. The delegate stated that she was of the view that Mr Zonnevylle had been provided with several reasonable opportunities to propose amended terms.

40. The decision states as follows:

It is estimated that it will take approximately 55 hours to conduct reasonable searches for the information you have requested. This does not include the time it will take to review the information located in response to your access application and make a decision with respect to access. It is not possible to provide any accurate estimate for the time it will take to review the information responsive to your request without finalising the searches to know the volume of material to be considered. At a minimum, the time required to process your application has been estimated to be 63 hours and 30 minutes as set out in the table below.

41. The decision includes a table with a description of the work undertaken and the time spent, and the further work estimated to be spent together with an estimate of time. The table records that the time spent to date of the decision was eight hours and 30 minutes, which comprised the time taken to consider the terms of the application to determine the relevant business units likely to hold the requested information and to conduct preliminary inquiries and correspondence to assist the applicant. The additional tasks to be carried out were estimated at 19 hours to conduct searches for information in response to items 1, 4, 6, 8, 9, 10 and 13 and 36 hours to conduct searches for information in response to items 2, 3, 5, 7, 11 and 12. There was no estimate given to review the information that was responsive to the request and this was said to be “unknown determinate on the volume of material located”. As such, it is apparent from the information contained in this table that the respondent estimated the time it would take to respond to the request would be more than 63 hours and 30 minutes.

42. The delegate noted that she had taken into account the considerations set out in s 60(3A) of the GIPA Act.

43. It was noted that there would be a substantial use of resources in dealing with the application as a consequence of the searches that needed to be conducted. It was estimated to that it would take approximately 55 hours to conduct the searches and this did not include the time required to review the material in response to the request, consider all relevant public interest considerations (including those against disclosure) and to draft the notice of decision in response to the application.

44. Specifically, it was noted that Mr Zonnevylle was seeking information in relation to an incident on 21 May 2019 when he arranged for a large box of garbage to be couriered to an officer containing a single piece of standard size correspondence. The letter was said to be buried amongst the rubbish in a manner that required a staff member to sift through the rubbish causing the staff member to feel unsafe. The decision notes that this incident was reported to the NSW Police Force. It is also noted that the information requested related to whether staff sought counselling or took sick leave arising from this incident. This is personal information or personal health information which would need to be identified and redacted and the respondent would also need to consult third parties and have regard to public interest considerations both for and against disclosure in relation to this information.

45. The delegate further noted the concept of proportionality in balancing an applicant's right to access information and the agency's ability to procure it in a timely and cost-effective manner. It was noted that, while the respondent has a dedicated unit to consider and decide requests for information made under the GIPA Act, the volume of applications received by the respondent is significant. According to the annual reports for the former Department of Justice and Family and Community Services, these two departments received approximately 1800 formal access applications in the 2018/2019 financial year. This dedicated unit is also responsible for managing approximately 4500 subpoenas and statutory orders issued to the Department as well as handling applications under the national scheme for redress of institutional child sexual abuse, privacy complaints, privacy internal reviews and access and amended applications. According to the delegate, the scarce resources of this unit are unable to be diverted to respond to a single access application where the size of the application is such that it will cause a substantial diversion of its resources, and this would be inherently unfair to other access applicants whose applications may be delayed due to an unreasonable diversion.

46. Specifically, the delegate notes that the estimate in relation to the search of 55 hours equates to a single officer, dedicated one and a half weeks of full-time employment to conduct searches for information in response to the application. A standard caseload for an officer is conservatively around 18 access applications as well as managing numerous subpoenas. As such, deciding the access application in its current terms would divert significant resources from processing other applications received by the Department, which was relevant having regard to the Department's obligation to decide access applications within 20 working days of receipt under s 57 of the GIPA Act.

47. The delegate noted that she was required to consider the matters referred to in s 60(3B) but she was satisfied that the considerations under s 60(3A) outweighed the considerations under s 60(3B) of the GIPA Act. Notably, she found that the majority of the information sought by Mr Zonnevylle was not his personal information. She also found that while some of the information requested could reasonably be expected to inform the public about the expenditure of public funds, the demonstrable importance of the information was not apparent from the terms of the request. The delegate referred to the issue in relation to the large box of rubbish and stated that it would appear Mr Zonnevylle was using the process as a means to cause further harassment and create further anxiety to respondent staff. The delegate also noted that “most of the information” is likely to contain personal information and health information of third parties and she therefore apportioned a minimal level of weight to the factors in s 60(3B) of the GIPA Act. In contrast, she apportioned significant weight to the factors in s 60(3A), finding that there was a strong likelihood that in dealing with the application the Department would be prevented from giving other members of the public prompt access to government information.

Proceedings relating to previous requests for access to information by Mr Zonnevylle

48. Mr Zonnevylle has made numerous applications for access to government information. Relevant decisions, because they consider a number of the legal issues raised by Mr Zonnevylle in these proceedings, are: Zonnevylle v Department of Education [2017] NSWCATAD 101 and Zonnevylle v Department of Education [2017] NSWCATAD 214 (both decisions by Senior Member Dinnen relating to different GIPA Act access application decisions) Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108, Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274 and Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 (applications for summary dismissal of a GIPA Act access application, considered by the Appeal Panel then by the NSW Court of Appeal) and finally, Department of Education v Zonnevylle [2020] NSWCATAD 96 (being a decision under s 110 of the GIPA Act that Mr Zonnevylle is not entitled to make an access application under the GIPA Act to the agencies referred to in the order).

49. In the first 2017 Zonnevylle proceedings involving the Department of Education (finalised in March 2017 relating to file 1510696) Mr Zonnevylle raised concerns about access application decisions made by the Department of Education in 2016. He asserted, amongst other things, that the searches conducted for various items requested were not reasonable and he sought access to information that was rejected by the Department of Education. It is noted in the decision that much of Mr Zonnevylle’s extensive written submissions were concerned with his request for the Tribunal to refer the conduct of the Department of Education to the Minister under s 112 and to make findings that the Department of Education had committed offences pursuant to sections 116, 117, 118 and 120 of the GIPA Act. Senior Member Dinnen observed that proceedings for breaches of the offence provisions of the GIPA Act were governed by s 128. She therefore declined to make any orders or consider those offences, finding that the Local Court is the appropriate forum for dealing with any charge for an offence and that the Tribunal has no jurisdiction to deal with these provisions. She also set out a summary of the previous Tribunal cases in relation to s 112 of the GIPA Act and found at [91] as follows:

…Those cases provide authority for the following guidance in applying section 112:

(1) The Tribunal’s opinion must be formed "as a result of an NCAT administrative review": the materials supporting this opinion must have arisen in the course of the Tribunal reviewing a reviewable decision.

(2) Any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally;

(3) The conduct complained about must be a failure "to exercise in good faith a function conferred on the officer by or under the GIPA Act”.

(4) The test in relation to “good faith” is predominantly subjective; however there are some objective components as well:

(a) What is required for something to be done or omitted in good faith may vary from one case to the next.

(b) Objective components may include:

(i) consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials.

(ii) serious and careful consideration must be given to the application; there must be more than a cursory review.

(5) The mere fact that the Tribunal accepts that an aspect of the agency's decision is wrong is insufficient to bring the matter within the scope of section 112.

50. Senior Member Dinnen found that there was no evidence that any of the individuals who had considered Mr Zonnevylle’s access application had failed to exercise a function conferred on them under the GIPA Act in good faith. She also declined to make a referral to the Minister.

51. In the second 2017 Zonnevylle proceedings involving the Department of Education (finalised in June 2017 relating to file 2016/00378353), Mr Zonnevylle made similar allegations of misconduct against Department officers. In this case, the Department had refused to deal with the access application on the grounds that it would require an unreasonable and substantial diversion of the agency's resources. Mr Zonnevylle requested that the matter be referred to the Minister under s 112 and again requested that the Tribunal find that the Department had committed various offences under the GIPA Act. The Tribunal was not satisfied that there was evidence that an officer of the respondent had failed to exercise a function conferred under the GIPA Act in good faith and further noted that the Tribunal had no jurisdiction to make orders in relation to the offences under the GIPA Act, consistent with her previous decision.

52. I agree with the principles set out by Senior Member Dinnen in her 2017 decisions, which are relevant to Mr Zonnevylle’s current application because he makes similar claims.

53. In the 2019 proceedings, Zonnevylle v Minister for Education and Early Childhood Learning, Mr Zonnevylle had made an application for access to government information relating to a dispute he had with government and certain government agencies. In his application, Mr Zonnevylle referred to breaches of the GIPA Act, including alleged offences under the GIPA Act, and requested that certain conduct of the officers be referred under s 112. The Minister submitted that the predominant purpose for Mr Zonnevylle commencing and maintaining the proceedings was an improper collateral purpose. Senior Member Ludlow found at [70] that Mr Zonnevylle’s submissions demonstrated an attention to continue to agitate for findings of a lack of good faith, illegality and misconduct on the part of the Minister and to seek review of decisions which are outside the scope of his application. It was held that, despite the possibility Mr Zonnevylle may have a legitimate cause of action in seeking a review of the reasonableness of the searches, the Tribunal was satisfied that the proceedings were a vehicle for the dominant purpose of attempting to relitigate allegations of misconduct, illegality and lack of good faith. He was therefore satisfied that the applications were vexatious because they were being maintained for a collateral purpose at [72].

50. Mr Zonnevylle appealed this decision to the Appeal Panel, which upheld his appeal because it was not satisfied that this was a case where Mr Zonnevylle was pursuing a collateral purpose, as opposed to persisting in making claims which are bad in law.

51. The Minister appealed this decision and the Court of Appeal (per McCallum JA; Macfarlan JA and Lemming JA agreeing) allowed the appeal, holding that Mr Zonnevylle’s persistence in making claims that were bad at law, and had been held to be so by the Tribunal, did not fall within the collateral purpose principle. The Court held that it was a well-established principle that an attempt to relitigate a matter that had already been determined may amount to an abuse of process (at [44] - [48]). The Court also found that the Appeal Panel erred in holding that the history of Mr Zonnevylle’s prior litigation was not logically probative in determining whether the review proceedings were vexatious (at [50] – [53]).

52. The respondent made an application in these proceedings (referred to below under the heading “Procedural issues”) for summary dismissal under s 55 of the CAT Act. The application was refused and, as a consequence, Mr Zonnevylle’s application for review remains before this Tribunal for determination.

53. The relevance of these latter cases is that the Court of Appeal proceeded on the basis that pursuing claims about misconduct and findings about criminal offences are bad at law. Having regard to the Court of Appeal decision and the previous Tribunal decisions about s 112 and the offence provisions of the GIPA Act, the respondent submits that it does not propose to respond to the various issues raised in relation to those matters in respect of which the Tribunal has no jurisdiction. It is also apparent that previous Tribunals, the Appeal Panel and now the Court of Appeal recognises that claims made for the Tribunal to make findings about criminal offences are outside the jurisdiction of the Tribunal and, in this respect, these claims made by Mr Zonnevylle are bad at law.

54. In the 2020 Department of Education v Zonnevylle proceedings, the Tribunal found that Mr Zonnevylle had commenced “a pattern of conduct, which has escalated overtime, of alleging corruption or misconduct by officers responsible for dealing with his GIPA applications” at [102]. The Tribunal also found that, in respect of one application, Mr Zonnevylle had sent harassing emails on a daily basis to officers, including those processing his application: at [103]. After examining seven volumes of documents and multiple GIPA applications made by Mr Zonnevylle, the Tribunal was satisfied that Mr Zonnevylle, by his conduct, had demonstrated that if he was permitted to continue to make applications under the GIPA Act without the control of a restraining order, he will continue to impose costs upon respondent agencies which are not reasonable and this would prejudice the achievement of the objective of the GIPA Act by imposing, at a systemic level, unnecessary burdens, including costs, on respondent agencies: at [107].

55. The Tribunal did not consider the current application and there is no dispute that the access application which is the subject of this review was made prior to the order made by the Tribunal in the 2020 proceedings. This decision is nonetheless instructive because the respondent makes a submission that Mr Zonnevylle’s conduct is a matter that should be considered under s 60(3A) of the GIPA Act. I deal with this submission later in my reasons.

Submissions of the parties

60. In his application for review, Mr Zonnevylle raised a number of grounds, which can be summarised as follows:

1. He was aggrieved by the decision of the fake “Chris King” because the public has an expectation that officers exercising functions confer on them by or under the GIPA Act to require to exercise their functions in good faith. Those officers are also required to fulfil their obligations as a government services employee, with oversight by Public Service Commission and agency codes of conduct.

2. Section 16 of the GIPA Act provides that it is mandatory for advice and assistance to be given to enable the public to access government information. An applicant has the right to ask questions relating to the processing of an application and this includes advice in relation to the interpretation and application of the GIPA Act, including questioning statements made by an officer exercising the GIPA functions.

3. A review of the correspondence between the applicant and Chris King shows that the applicant has legitimate concerns regarding misconduct and the lack of good faith being perpetrated by the fake Chris King. The correspondence demonstrates that the fake officer has systemically abused Mr Zonnevylle’s GIPA Act rights and failed to provide mandatory advice and assistance.

4. There is evidence of blatant breaches of the mandatory obligations required under the GIPA Act, including s 126, which provides that an agency is required to include the contact details of an officer to whom inquiries can be directed in connection with the decision. The fake officer Chris King is not an officer of the agency as required by section 126 of the GIPA Act.

5. The decision made by Chris King is an offence under s 116 of the GIPA Act because the officer made a decision that he or she knew to be contrary to the requirements of the GIPA Act.

6. Correspondence implicates the respondent’s general counsel in the alleged breach of s 116. A complaint was made to the general counsel, Ms Lida Kaban, concerning the conduct of the fake Chris King. The general counsel confirms her complicity with the fake Chris King in her correspondence and consequently exercised a function relating to the access application. Lida Kaban has also perpetrated an offence under section 117 by unlawfully directing action of the officer.

7. The failure of the fake Chris King to exercise his or her functions in good faith and provide mandatory advice and assistance to enable Mr Zonnevylle to make an informed decision to amend or re-scope his application compromises the integrity of the access application and breaches the fundamental GIPA Act rights.

8. The applicant has grave concerns regarding the integrity of the Information Commissioner because, prior to finalising the complaint against the fake Chris King, the Information Commissioner made a decision on the reviewable decision despite knowing the substantive and real effect the alleged misconduct had on the reviewable decision. The Information and Privacy Commission (IPC), under the direction of the Commissioner and an officer of the IPC, are alleged to have failed their statutory obligation to protect the public and Mr Zonnevylle from systemic multiple agency misconduct and they are alleged not to have acted in good faith. Their refusal to be open and transparent about the conduct standards used by the agency to determine officer misconduct has resulted in Mr Zonnevylle’s GIPA Act applications being systemically abused by NSW Education, NSW Finance and Department of Justice officers. The Information Commissioner and the IPC in general have failed their statutory obligations of impartiality in the public interest.

9. The information that Mr Zonnevylle seeks access to relates to his allegation that Ms Jodie Cobbin, the director of OGIP, has a personal interest in the application. Mr Zonnevylle alleges that Ms Cobbin acted corruptly by misusing police resources to have NSW Police harass and intimidate Mr Zonnevylle in relation to an GIPA Act application made by Mr Zonnevylle in relation to the respondent in 2018. Mr Zonnevylle alleges that Ms Cobbin sought favour from the Chief Inspection Sydney City Area Command. As director of OGIP, Ms Cobbin has influence over application processing and has a personal stake in the information sought. Mr Zonnevylle raises issues that Ms Cobbin may in fact be the fake Chris King and if this is the case, she has perpetrated offence under s 117 of the GIPA Act.

61. Mr Zonnevylle attaches the reviewable decision to his grounds but also attaches a bundle of documents relating to complaints made him against officers of the respondent and the IPC. The documents relating to these complaints can be summarised as follows:

1. A complaint by Mr Zonnevylle to the Law Enforcement Conduct Commission regarding Ms Cobbin made on 7 January 2019.

2. A complaint that he made to the Police Commissioner regarding the conduct of Detective Chief Inspector Marcic on 8 September 2019 in response to a complaint received by NSW Police from Ms Cobbin.

3. Documents apparently provided by NSW Police in relation to a GIPA Act application. Mr Zonnevylle variously describes these documents as evidence that Ms Kaban contacted Marcic directly and that he emphatically denied making any harassing calls to the respondent.

4. The complaint made to Lida Kaban against the fake officer Chris king and her response.

5. Correspondence with the IPC seeking clarification related to a legal matter and Mr Zonnevylle’s assertion that the IPC has failed to engage with matters that were of significant public interest.

62. On 17 May 2024, Mr Zonnevylle send an email to my personal email address at the Tribunal outlining his submissions. I do not review material sent directly from parties to proceedings as this is inconsistent with the practice and procedure of the Tribunal, as noted in the Tribunal’s Policy 6: Communicating with the Tribunal and Members, which provides that parties, or other people involved in proceedings, should not contact, or attempt to contact, Members, or anyone associated with a Member, about proceedings face to face, by telephone or through email. The usual course is for any communications to be sent to Tribunal members by registry. At the hearing, Mr Zonnevylle raised concerns that he had sent email submissions, which I had not reviewed. As Mr Zonnevylle was not present during the hearing to hand up those submissions, I requested that the lawyer for the respondent, who was present during the hearing and had received copies of the email, to send those submissions to the registry so that they could be provided to me. I reviewed those submissions.

63. In summary, the submissions were to the following effect:

1. The decision under review made on 29 May 2020 was made by the decision maker identified as Chris King under s 60(1)(a) of the GIPA Act. The circumstances of the GIPA application are required to be addressed prior to the Tribunal considering the substantive application. Those circumstances are the statutory obligations of the Tribunal, statutory bodies and NSW government and government officers.

2. The obligations under the ADR Act under s 3 are to, amongst other things, foster an atmosphere in which administrative review by the Tribunal is viewed positively. The objects of the GIPA Act under s 3 is to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and objective. This legislation enacted by parliament for the benefit of the citizens of NSW. The objects of the Government Sector Employment Act 2013 (NSW) (GSE Act) are to, amongst other things, establish the public service as a general service within the government sector and to establish an ethical framework for the government sector comprising core values and principles that guide their implementation. Those core values are set out in Section 7 of the GSE Act and includes obligations to uphold the law and act professionally with honesty, consistency and impartiality. The GSE Act is legislation enacted by the parliament for the benefit of the citizens of NSW.

3. The GIPA Act includes a number of provisions that are relevant to the application. Section 111 of the GIPA Act provides that the Tribunal may refer to the Information Commissioner that the Tribunal considers it indicative of a systemic issue in relation to the determination of access applications by particular agency or agencies generally. Section 112 provides the Tribunal may report on improper conduct and sections 116 to 120 set out certain offences under the GIPA Act.

4. Mr Zonnevylle submitted that there were reasonable grounds for certain questions of law to be referred to the Supreme Court pursuant to s 54 of the CAT Act. Mr Zonnevylle contended that as a self-represented non legal professional it has been difficult for him to exercise his rights under the GIPA Act, and he therefore requested that certain questions be referred to the Supreme Court. Mr Zonnevylle raised what he considered to be nine questions of law relating to his rights as an access applicant.

5. Those questions were about whether Mr Zonnevylle had a reasonable right to ask questions about the officer Chris King, whether Chris King should provide search times and adequate assistance under s 16 of the GIPA Act, whether the information requested by Mr Zonnevylle was substantially personal information and whether it was deemed to be sufficiently of demonstrable importance to Mr Zonnevylle, whether Mr Zonnevylle had legitimate concerns because the respondent refused to confirm whether Ms Cobbin was exercising any function under the GIPA Act or was influencing or had oversight of any functions under the GIPA Act, whether she had a conflict of interest in the information being sought by Mr Zonnevylle, whether it would be appropriate for Chris King to have recommended that Mr Zonnevylle make a access application for information that was demonstrably important personal information and whether it would be appropriate for the Tribunal to remit the decision back to the respondent to make such a recommendation.

6. Further questions relate to Lida Kaban and whether she had statutory obligations under the GSE Act, whether she exercised a GIPA Act function when responding to Mr Zonnevylle’s complaint about Chris King, whether these matters would be considered as improper conduct and whether, on the basis of probabilities, it is likely that Chris King is one of the staff in the office of general counsel or OGIP who may feel fearful and unsafe and be experiencing stress and therefore be biased against Mr Zonnevylle.

64. At the hearing, and in written submissions made by Mr Zonnevylle in support of the issue of a summons to Chris King to give evidence, Mr Zonnevylle submitted that his application sought substantially personal information which was not acknowledged as such by Chris King, the personal information relates substantially to serious accusations and statements made by Ms Jodie Cobbin in her letter to Mr Zonnevylle dated 27 May 2019, these issues are the subject of much tension and resulted in Mr Zonnevylle seeking the Tribunal review and despite a request for this information, the respondent has refused to disclose the name position and government identity number of the officer who processed his application, referred to under the pseudonym of Chris King. The fact that Chris King refused to provide the requested processing times and instead only provided search times and requested that those search times be restricted to 15 hours raised a legitimate and reasonable apprehension of a conflict of interest by Chris King on several grounds, including that Chris King could be Jodie Cobbin exercising functions when she has a conflict of interest. The issue of the summons had a clear forensic purpose as it would uncover whether Chris King and Jodie Cobbin were the same person.

65. After the first hearing, Mr Zonnevylle sent correspondence to the Tribunal providing submissions in response to the respondent's submissions and in relation to the issue is to as to whether the conduct of Chris King was relevant to the review. Mr Zonnevylle stated, as he had previously submitted, that matters relevant to the review included questions about whether referrals should be made under sections 111 and 112 of the GIPA Act and whether there had been breaches of sections 116 to 120 of the GIPA Act. Mr Zonnevylle submitted that had not been given sufficient opportunity to amend and re scope his request for information, the officer had failed to provide him with mandatory reasonable advice and assistance as required under s 16, Chris King had failed to exercise his or her functions in good faith as required by s 112 of the GIPA Act and this conduct was relevant to the reviewable decision.

66. Mr Zonnevylle also submitted that access to the information was of “demonstrable importance” to him because the letter from Jodie Cobbin dated to 27 May 2019 made allegations against him that he had engaged in an ongoing campaign of unacceptable behaviour, he had engaged in conduct which was perceived as being menacing, intimidating and harassing, he had sent a letter amongst rubbish in a manner that required the recipient to sift through the rubbish in order to retrieve it, he had concealed his identity for the purpose of delivering the box and the recipient of the box felt unsafe and concerned that the rubbish was being used to conceal hazardous substances. The fact that this was reported to police is it a matter in respect of which Mr Zonnevylle had no previous knowledge and he was therefore entitled to know about all of the allegations made against him. He is also entitled to have access to the correspondence relating to Lida Kaban to understand issues raised by her in an undated letter a complaint was forwarded to Detective Chief Inspector John Maricic dated 20 November 2018. Following this complaint police attended his premises on 21 November 2018. He therefore has a reasonable and legitimate concern that Ms Cobbin has made unsubstantiated accusations against him to cause him irreparable reputation and personal damage. Information relating to this information is of demonstrable importance to Mr Zonnevylle. The correspondence relating to this claim (which was attached to Mr Zonnevylle’s application for review) was also tendered by Mr Zonnevylle during the hearing and is detailed below.

67. The respondent submits that the Tribunal's jurisdiction in these proceedings is limited to consideration of the respondent’s reviewable decision, namely the decision to refuse to deal with Mr Zonnevylle’s access application under the GIPA Act. It is further submitted that the Tribunal should not entertain those aspects of the application that seek to agitate matters going beyond this permissible review.

68. The respondent submits that the 9 grounds referred to in Mr Zonnevylle’s grounds of the review should not form the basis for the Tribunal’s review. Those grounds are summarised above and form the basis for an application made by the respondent that Mr Zonnevylle application be dismissed under s 55 of the CAT Act. This application, which is referred to below, failed.

69. On the substantive issues, the respondents submits that it is the task of the Tribunal when undertaking administrative to review to determine the correct and preferable decision at the time the Tribunal makes its decision. It is submitted that dealing with Mr Zonnevylle’s access application would require an unreasonable and substantial diversion of the resources of the respondent and that, accordingly, the Tribunal should affirm the decision under review.

70. The central issue to be considered by the Tribunal whether dealing with Mr Zonnevylle’s would involve an unreasonable and substantial diversion of the respondent’s resources. The consideration of these matters is guided by sections 60(3A) and (3B) of the GIPA Act as well as a number of previous decisions of the Tribunal. The respondent’s submissions in relation to these matters are set out in more detail later in these reasons.

71. In summary, the respondent submits that the volume of information held that may respond to Mr Zonnevylle’s application is not known because to even undertake the initial searches would require an unreasonable and substantial diversion of resources. However, based on the available information the Tribunal could be satisfied that the volume of responsive information would be substantial. It is further submitted that given the immense size and breath of the respondent and its role, dealing with Mr Zonnevylle’s application would be a significant burden on the respondent which would divert resources from these other matters. The respondent submits that the matters referred to in s 60(3A) of the GIPA Act outweigh those considerations that must be taken into account under s 60(3B). It is submitted that, while much of the information requested would be classified as personal information of Mr Zonnevylle, the respondent is not aware of his motivation for seeking access to the information. Nor is it apparent that Mr Zonnevylle seeks the information for the purpose of exercising any rights under any act or law.

280. Mr Zonnevylle has already obtained information relating to the complaint made by Ms Cobbin directly from NSW Police. There is no evidence that he is being prosecuted in relation to this complaint and the evidence is to the effect that he was contacted by police and no further action was taken. It is apparent that one of the reasons Mr Zonnevylle seeks information about staff is because Ms Cobbin has made an assertion that staff have been harassed by Mr Zonnevylle. He does not agree with this and there is evidence that he has made his own complaint, address to Ms Kaban, about harassment by OGIP staff. It is unclear from Mr Zonnevylle’s submissions about what action he seeks to take about these matters and why the information requested is of “demonstrable importance” to him. If Mr Zonnevylle wishes to make a complaint about the conduct of the respondent, Ms Cobbin, Ms Kaban or other officers of the respondent, he may do so through the appropriate channels.

Balancing exercise

285. I accept that there is an inherent general public interest in favour of disclosure of government information and this factor weighs against the exercise of the discretion to refuse to deal with an application on the grounds in s 60(1)(a). I also accept that the fact that much of the information requested includes the personal information of Mr Zonnevylle and that some of the information he seeks relates to disputes he has about certain statements made by officers of the respondent.

286. These factors weigh in Mr Zonnevylle’s favour in the balancing exercise, although not strongly so. First, Mr Zonnevylle is already apprised or is aware of most of the information and he has not identified the importance of the information to any action he might take other than the general contention that he is aggrieved by the complaint and allegations made by Ms Cobbin. At Several of the items relate to the incident where Mr Zonnevylle is alleged to have included a letter in a “large box of rubbish”. Mr Zonnevylle knows what happened in relation to this incident in that he is the person who delivered it to OGIP. What Mr Zonnevylle disputes is the OGIP staff reaction to this. It is difficult to understand how this will advance any right Mr Zonnevylle seeks to enforce.

287. Secondly, apart from allegations that have made directly to him, which he disputes, and a complaint being made to NSW Police, that has not proceeded to any action or investigation, Mr Zonnevylle does not point to any action he may take or prejudice he has sustained that could be addressed by getting access to the information he requests. Furthermore, there is no evidence or submissions as to the demonstrable importance to him in respect of a number of the items, including items 6 and 7.

288. Against this, I accept that dealing with Mr Zonnevylle’s application will take at least 70 hours, possibly more, and the resources required to undertake some of the more complicated tasks will require input from a more senior officer or officers. This may involve several weeks of full-time resourcing over an extended period because of the consultation it will require. In making this assessment about the resources, I have had regard to the nature and scope of the requests, the evidence of Mr McIntosh and the lengthy correspondence in evidence about Mr Zonnevylle’s approach to the application and in dealing with the respondent’s officers. The actual volume of documents that are responsive to the access application cannot be determined and, as such, the total time to process the application is only an estimate. Despite this, I am satisfied that the estimates made by Mr McIntosh are reasonable and realistic.

289. I am also satisfied that, while the respondent allocates considerable resources to access applications, its resources are not unlimited, and the workload of the respondent is significant. Relevantly, the team must also deal with many other access applications, and I accept the evidence of Mr McIntosh that dealing with this application will potentially divert resources from that important task. The timelines under the GIPA Act are tight and this is likely to add to the pressure on the respondent.

290. In balancing the competing factors, I am satisfied that the factors that fall for consideration under s 60(3A) outweigh the factors in s 60(3B).

Conclusion

291. I am therefore satisfied that dealing with the application would require an unreasonable and substantial diversion of the respondent’s resource and that the correct and preferable decision is to refuse to deal with the application pursuant to section 60(1)(a) of the GIPA Act.

292. Having examined the correspondence between Mr Zonnevylle and the officer who processed Mr Zonnevylle’s application, I am not satisfied that there is any evidence that he or she did not act in good faith. There is no evidence, and in fact this was directly refuted by Mr McIntosh, that Ms Cobbin was involved in processing his application or that she was really “Chris King”.

293. Mr Zonnevylle raises concerns about whether the respondent has complied with s 126 of the GIPA Act by authorising the use of a pseudonym for the officer who processed his application. It is apparent the Mr Zonnevylle became aware of this by the time he complained to Ms Kaban in March 2020.

294. Section 126 (1)(d) provides that any notice under the GIPA Act must “include the contact details of an officer of the agency to whom inquiries can be directed in connection with the decision or other action of the agency with which the notice or notification is concerned”. The intention of this provision is to give an access applicant a clear line of communication with the relevant officer. In this case, Ms Kaban authorised the use of a pseudonym so that there would be such communication without Mr Zonnevylle having the details of the actual officer. She explained why this action was taken in her letter of 4 May 2020 and, given the history of Mr Zonnevylle previous applications and the nature of his correspondence, it is understandable that a senior officer may seek to protect a public servant, who is attempting to discharge their duties and obligations, by ensuring that the public servant is not unfairly targeted at a personal level.

295. I accept that this may not have been Mr Zonnevylle’s intention, but it is evident from objective analysis of his correspondence and communications more generally, that Mr Zonnevylle can be very combative and personally intrusive. This was evidenced during the hearing in his dealings with Mr McIntosh, the respondent’s lawyer, Ms Mattes, statements he made about Tribunal registry staff and about the Tribunal more generally. It is not uncommon for officers discharging statutory functions, which as immigration officers, not to disclose their names in correspondence but to adopt an initial or only reveal a first name. In this case, it is unclear whether “Chris King” is an officer of the agency and whether the pseudonym mechanism adopted by the respondent complies with s 126(1)(d). This section provides that the notice must include the “contact details of an officer of the agency” and it may be argued that the contact details for the officer was nominated as “Chris King”. It may have been preferable for the respondent to identify initials as contact details or, at the least, advise Mr Zonnevylle at the outset that this was the procedure adopted as this resulted in Mr Zonnevylle forming a suspicion, wrongly as it turns out, that Ms Cobbin was the person processing his application.

296. Despite this, I am not satisfied that the practice adopted in this case discloses a systemic issue or improper conduct that warrants a referral under either s 111 or s 112 of the GIPA Act. I therefore decline to make any referral.

Orders

1. The decision under review is affirmed.

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

Registrar

Decision last updated: 29 November 2024