Alam v Insurance and Care NSW

NCAT Appeal Panel|2020-08-28

REASONS FOR DECISION

The Tribunal at first instance dealt with an application by Ms Alam for the review of a decision by Insurance and Care NSW (icare) made under s 58(1)(b) of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
When dealing with her application for access to information under the GIPA Act, icare initially told Ms Alam that it had found a record in response to her search, but that it had made a determination that the material was excluded information under clause 3, Schedule 2 of the GIPA Act. Subsequently, icare realised that the record the subject of that decision was not a record sought by Ms Alam, but was unrelated to her or her search. Icare conducted a further search, using the names Ms Alam had provided as names by which she has been known and other information provided by Ms Alam. No information was found. The decision of icare, on 28 May 2019, was that icare did not hold any information about Ms Alam.
The Tribunal at first instance affirmed the decision of 28 May 2019.
Ms Alam lodged with the Tribunal an internal appeal against the decision of the Tribunal at first instance under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).

Facts

The relevant facts are set out in the decision at first instance. In summary, at some time prior to the making of her application to icare, Ms Alam was told by her former employer that it had made a report to its insurer with respect to what that employer considered may have been a workplace injury suffered by Ms Alam. Ms Alam has never made a workers' compensation claim or reported a workplace injury. However, on the basis that her former employer told her that it had made a report to its insurer, Ms Alam formed the belief that icare holds information about her.

The Appeal

Ms Alam seeks orders in the following terms: 1. The correct and preferable decision is that the Respondent did and does hold information sought by the Applicant in her GIPA Act application, that the Respondent has failed to conduct a reasonable, adequate, sufficient and proper search, and should be ordered to undertake further searches as well as to disclose in full details of the databases, systems, search engines, methodology, processes and algorithms used. 2. That the Respondent must conduct further searches, in compliance with s 53 of the GIPA Act, and using the additional details provided by the Applicant, for the information sought in her GIPA application. 3. The Tribunal should make a report under s 112 of the GIPA Act. 4. The Tribunal should assess and report the possibility of the commission by the Respondent of one or more of the offences under Division 2 of Part 6 of the GIPA Act.
Ms Alam enlarged upon the basis for her appeal in a document which accompanied her notice of appeal. In addition, Ms Alam filed written submissions and further written submissions and made oral submissions before the Appeal Panel. We have taken all of Ms Alam's submissions into account.
To the extent that Ms Alam's appeal is an appeal on a question of fact, the leave of the Appeal Panel is required for the making of that appeal. In so far as Ms Alam's appeal is an appeal on a question of law, then Ms Alam's appeal is an appeal as of right (see s 80(2)(b)).
In order to succeed in her appeal, Ms Alam must either establish that the Tribunal at first instance made an error of law which affected the outcome of the decision appealed from, or, alternatively, obtain the leave of this Appeal Panel to appeal on a question of fact and then establish that the Tribunal at first instance made an error of fact which materially affected the decision appealed from.

Alleged errors of law

Two allegations of errors of law by the Tribunal at first instance emerge from the material filed by Ms Alam. These allegations are: 1. That the Tribunal erred in its interpretation and application of s 53 of the GIPA Act; and 2. That the Tribunal failed to accord procedural fairness to Ms Alam in the hearing at first instance.

The Interpretation of s 53

The GIPA Act provides in s 53: 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.
The Tribunal at first instance admitted into evidence detailed affidavits from Ms McFadden, Ms Koby and Ms Gibbs-Steele regarding the searches undertaken in response to Ms Alam's application. The Tribunal also heard oral evidence from Ms Gibbs-Steele, who was cross-examined.
The Tribunal said, at [53]-[58]: 53 In Walker (supra) at [87], the Tribunal summarised the principles applicable to considering whether the searches undertaken by an agency are reasonable: (a) what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping 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: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]; (b) that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; (c) the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28]. 54 In her written submissions of 25 November 2019, the applicant said that Ms Gibbs-Steele had failed to provide any information or explanation of the search engine(s) used by the respondent in conducting its searches, or the algorithms used by the search engine(s). The applicant went on to provide the following, as an example of why this information and explanation was required: … [an] Internet search for a particular word or term will not report every occurrence of that word or term held in the databases searched, because of the way in which search methodologies, and algorithms, use by Internet search engines operate. Due to the effect of the way in which the search engines of the Respondent operate, it is highly probable that the date relevant to the Information is filtered out. … 55 In [my] opinion, s 53 of the GIPA Act does not require the agency to provide specific details of search engines or algorithms of its electronic data systems. Nor, in my opinion, was it necessary for the respondent to provide any information or an explanation of this kind. What is required, in order to discharge its onus that its search efforts were reasonable, an agency must identify the electronic systems and platforms on which it retains information of the kind sought by the access applicant and what searches were conducted on those systems and platforms for the information sought. 56 In this case, in her decision of 28 May 2019, Ms Gibbs-Steele provided a comprehensive explanation of the respondent's electronic systems and protocols. She explained the nature of the information that was held in each of these systems and protocols. She also explained what searches were conducted on these and why particular searches requested by the applicant could not be made. For example, she said a search could not be made on the basis of the name of a specific doctor. This was primarily due to the manner in which the systems of the respondent had been created to meet the needs of the respondent in fulfilling its functions. Hence, searches can be made on the basis of the name of an employer or the name of a claimant for workers compensation, both of which had been made in respect of the name of the applicant's employer and the name of applicant (including the various permutations of her name). 57 In her oral evidence, Ms Gibbs-Steele explained that the respondent's access to external electronic systems, such as data exchange, is limited in that it only has access to the information in this system that relates to an injured worker and hence the name of the employer. 58 Hence, in my opinion, having regard to the material before the Tribunal, I am satisfied that, in all the circumstances of this case, the respondent has established that the search efforts it made to locate the information for which the applicant sought access have been reasonable.
Ms Alam, in her challenge to the Tribunal's interpretation of s 53 of the GIPA Act, relied upon the decision in Mizzi v Commissioner of Police, NSW Police Force [2013] NSWADT 150 at [30] (Mizzi) where the Tribunal said: 30 What constitutes a 'sufficient search' will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping 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: see Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 at paragraph [30]; Chant v Gwydir Shire Council [2012] NSWADT 20 at [48].
Ms Alam argued that the 'test' in Mizzi required the Tribunal to 'have access to the protocols and algorithms used by an agency's search engine or engines of its databases and systems in order to assess the reasonableness of the searches undertaken'.
We reject this interpretation of what was said in the decision in Mizzi. It is not a requirement of the GIPA Act, or any other law, that an agency provide to the Tribunal, or to an applicant, the information set out in [16] above.
It is plain, on the evidence which was before the Tribunal at first instance, that the extensive searches undertaken by icare were undertaken using the search capability available to icare across its platforms and systems.
In her affidavit sworn on 19 September 2019, Ms Gibbs-Steele described in considerable detail the searches undertaken by officers of icare, including the search made in response to an order of the Tribunal on 7 May 2019.
There is no reason to think that the use by icare of the search capability across the platforms and systems available to it was not the most efficient means of searching reasonably available to the agency within the meaning of s 53(2) of the GIPA Act.
There is no evidentiary basis for doubt as to whether icare's searches were in compliance with s 53(3) of the GIPA Act. There is no reason to think that resources that facilitate the retrieval of information stored electronically, and which were reasonably available to icare, were not used in the searches conducted in response to Ms Alam's application for access to information. The GIPA Act does not impose a requirement on an agency to acquire the ideal search capability for each application for access to information.
No error of law has been demonstrated in the interpretation or application by the Tribunal at first instance of s 53 of the GIPA Act.

Procedural fairness

Ms Alam submitted, in her written submissions dated 10 June 2020: By either failing to consider evidence and submissions given and made by the Applicant, or by giving preferential treatment to the Respondent, as set out in paragraphs 23-25, the Tribunal has failed to accord the Applicant procedural fairness.
In paragraphs 23 to 25 of her written submissions dated 10 June 2020, Ms Alam said: 23. The Tribunal also erred in failing, despite the existence of substantial unchallenged evidence, as well as submissions by the Applicant, to give any consideration at all to the possibility of the commission of an offence or offences by the Respondent under Division 2 of Part 6 of the GIPA Act. 24. The Tribunal also erred in failing to give any consideration to the Applicant's evidence and submission made to it that it should make a report under s.112 of the GIPA Act in relation to improper conduct. The Tribunal in its decision concluded at [64] "Ms Gibbs-Steele has also acknowledged that the respondent had initially failed to process the applicant's access application correctly. It was not until 1 May that the applicant's application was dealt with in accordance with the GIPA Act." Furthermore, the Information Commissioner had also concluded in its report that the Respondent did not properly process the Applicant's application in accordance with the GIPA Act, and had made the recommendation for the Respondent to make a new decision. The Applicant has provided extensive evidence of the Respondent's failure to properly conduct itself in its searches in response to the Applicant's GIPA Act application. There was no basis for the Tribunal to have ignored the reporting under s. 112 of the GIPA Act. 25. The Tribunal also erred in dealing with, despite the absence of any order inviting either party to make further submissions or to apply for further orders after the hearing before it on 6 November 2019, in dealing with a submission made by the Respondent on 28 November 2019 for an order restraining the Applicant under s.110 of the GIPA Act from making further applications. The Applicant submits that this submission was made by the Respondent for an improper purpose; namely to threaten and deter the Applicant by intimidation from pursuing her search for discovery of her personal information.
The GIPA Act provides, in s 112: 112 Report on improper conduct If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of - (a) the Minister who appears to NCAT to have responsibility for the agency, or (b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.
The issues the subject of s 112 of the GIPA Act are not issues which are intended to be dealt with by the Tribunal in a decision on an administrative review. What is contemplated by the plain words of the section is that, on the completion of an administrative review, NCAT may, on its own initiative, bring the matters set out in the section to the attention of the Minister who has responsibility for the agency in question. The issues the subject of s 112 of the GIPA Act are not issues which are intended to be decided in an administrative review decision concerning an applicant for information and an agency.
Ms Alam apparently expected the Tribunal at first instance to include in its decision a discussion and conclusion about whether to bring certain events which occurred in the course of icare's actions in processing her application under the GIPA Act to the attention of the Minister. That expectation was misplaced. The omission of any consideration of s 112 of the GIPA Act in the decision of the Tribunal at first instance was not a denial of procedural fairness to Ms Alam.
The Tribunal at first instance rejected the application by icare for an order under s 110 of the GIPA Act. That issue was therefore decided in Ms Alam's favour. There is therefore no utility in considering the submissions raised by Ms Alam about the manner in which that issue was dealt with.
There is no basis upon which it could reasonably be concluded that the Tribunal at first instance failed to consider any relevant evidence or submission made in Ms Alam's case.

Questions of fact

Pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013, the leave of the Appeal Panel is required for a party to appeal on a question of fact.
In Collins v Urban [2014] NSWCATAP 17, the Tribunal said, at [80]-[82]: 82 The principles which govern the granting of leave to appeal by the Appeal Panel under s 80(2)(b) should generally be consistent with those which are applied by Courts when considering the question of leave to appeal. These have recently been summarised by the Court of Appeal in BHP Billiton Ltd v Dunning [2013] NSWCA 421. In addition, the Supreme Court has considered the principles which apply when granting leave to appeal to the Court from a decision of the Guardianship Tribunal in a number of cases including SAB v SEM [2013] NSWSC 253. The Guardianship Tribunal has now been absorbed into the Tribunal as the Guardianship Division. As there are alternate rights of appeal from decisions of the Guardianship Division to the Supreme Court or the Appeal Panel (see cll 12 to 14 of Schedule 6 to the Act) both by leave in the case of interlocutory decisions or on grounds other than a question of law, the same principles should apply in deciding whether to grant leave to appeal to the Court or to the Appeal Panel. 83 Further, the Appeal Panel has addressed the relevant principles to be applied when deciding whether to grant leave to extend an appeal to the merits of the decision (under s 113(2) of Administrative Decisions Tribunal Act 1997 (NSW)) in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. These principles may be applied by analogy when considering whether to grant leave to appeal under s 80(2)(b) of the Act. 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
Ms Alam said that the Tribunal at first instance sent her a draft decision on 13 May 2020 and then published a decision on 5 June 2020 which was different in some respects from the draft decision of 13 May 2020.
The decision of the Tribunal at first instance is the final, published decision. Only a final decision of the Tribunal may be the subject of an appeal, be it in relation to the ultimate question to be decided, or an ancillary question. It is an undesirable practice for draft decisions to be provided to parties. It is apt to cause confusion. In the event that, when writing a decision, a Tribunal member forms the view that further submissions are required in relation to an issue, those submissions should be sought without the provision of a draft decision. However, the provision of a draft decision to the parties is not, by itself, an appealable error on the part of the Tribunal.
Ms Alam raised an objection to some comments which were made in the draft decision. Those comments were not present in the published decision. We do not consider that there is any utility in discussing them. Their presence in the draft decision has no impact on this decision.
Ms Alam's appeal with respect to questions of fact included matters concerning the initial processing of her application for access to information by icare. The Tribunal at first instance set out its findings as to those matters as follows: 11. In her 12 February 2019 access application to the respondent, the applicant sought access to the following information: Please provide all information regarding Sumyya Bhuiyan (current name Sumyya Alam), please search both names. This may include details about any employers providing information about Sumyya Bhuiyan to icare about any alleged workplace injury or workers compensation(with or without claim). This may include any personal, sensitive and health information about Sumyya Bhuiyan. Please provide every detail and information about Sumyya Bhuiyan, and how and from who that information was received. 12. On 22 February 2019, Bree McFadden, the respondent's Right to Information Officer, wrote to the applicant to advise that she had determined that the applicant's access application was invalid, because the information sought was excluded information under cl 3 of Sch 2 of the GIPA Act (competitive and market sensitive information): GIPA Act , s 19. That is, it was information relating to the management of a specific workers compensation claim. 13 Four days later, on 26 February 2019, Koby Moore, also the respondent's Right to Information Officer, wrote to the applicant to apologise and advise that she had been incorrectly informed that her access application was invalid. Ms Moore went on to confirm that, 'following a secondary search' on the respondent's database, no 'NSW workers compensation claim records' relating to the applicant had been found. 14 Being dissatisfied with the decision of the respondent, on 4 March 2019, the applicant made an application for external review by the Information Commissioner. In that application the applicant expressed concern about the respondent having failed to follow the correct procedure in dealing with her access application. Of particular concern to the applicant was that: • the respondent had initially determined that her access request was invalid; and • the respondent had failed to consult her before any searches were undertaken. In this regard the applicant noted that the scope of her application was not limited to insurance claims about her. She said that what she was seeking access to was 'all information' about her that was held by the respondent. 15. On 22 March 2019, the Information Commissioner determined the applicant's review application. In her report, the Information Commissioner, confirmed, what appears to have been oral advice that was previously given in regard to the information for which the applicant sought access. It was noted that this information was not necessarily excluded information as it did not relate to a specific compensation claim. The Information Commissioner recommended that the respondent make a new decision (i.e. an internal review decision) in regard to its subsequent decision that it did not hold the information sought. 16. On 26 March 2019, the applicant lodged her application for external review by the Tribunal. Subsequent to lodging her application with the Tribunal, on 5 April 2019, Ms Gibbs-Steele, the respondent's Executive Privacy Officer, sent an email to the applicant to advise that the respondent would make an internal review decision, as recommended by the Information Commissioner. 17. On 1 May 2019, Ms Gibbs-Steele made an internal review decision, on behalf of the respondent. In that decision, Ms Gibbs-Steele determined to affirm Ms Moore's decision that the respondent did not hold the information for which the access was sought. In her decision, Ms Gibbs-Steele identified the electronic systems and platforms of the respondent on which information is held and on which searches were undertaken in regard to the names of the applicant, her date of birth and her address. The electronic systems and platforms identified by Ms Gibbs-Steele were as follows: • Data Exchange - claims management system; • CAMEO - correspondence management system; • GuideWire Policy Centre - Policy and premium system; • Navigator - Claims Management Lifetime Care; • Dust Diseases Care Case Management system; • GuideWire ClaimCentre - Claims management system; and • TRIM - Document management system Insurance NSW. … 35 In support of its decision the respondent relied on: (1) a statement of Bree McFadden, dated 19 September 2019. In her statement, Ms McFadden gave evidence about her decision of 22 February 2019. Ms McFadden said that, when she searched the respondent's claims management system, she located one report under the name 'Bhuiyan Alam', which was excluded information. She said she subsequently realised she had made an error, as she had failed to check the personal details of the located report. When she did check she found that the names 'Bhuiyan' and 'Alam' 'was not a hit for the provided names, as the date of birth of the person the subject of this report was not the same as what was contained in the applicant's driver's licence; (2) a statement of Koby Moore, dated 20 September 2019. In her statement, Ms Moore gave evidence of her 26 February 2019 telephone conversations with the applicant in regard to the decision of Ms McFadden. Ms Moore said that she had initially confirmed Ms McFadden's decision. However, she went on to say that, after making her own search on the respondent's claims management system, she found that the record identified by Ms McFadden did not match the personal details of the applicant. Hence, on the same day, she again telephoned the applicant to tell her that an error had been made and that the respondent did not hold any information about her. Ms Moore said she followed up on this call with her letter of the same date; (3) a statement of Nicole Gibbs-Steele, dated 19 September 2019. In her statement, Ms Gibbs-Steele acknowledged that the original processing of the applicant's GIPA application had not been dealt with appropriately. Ms Gibbs-Steele also set out, in more detail, the searches that were undertaken following the report of the Information Commissioner and after the first Tribunal case conference. In this regard, Ms Gibbs-Steele explained which officers of the respondent had been requested to undertake a search and the ambit of that search. Attached to Ms Gibbs-Steele's statement was a copy of the email she sent to each officer and the response she received form that officer advising her of the results of their search. Ms Gibbs-Steele concluded by saying that she was satisfied that: (a) icare had undertaken all possible data searches in order to satisfy the applicant's GIPA request and that there were no further searches that could be performed by icare; and (b) there were no records naming Sumyya Alam, Sumyya Bhuiyan or Sumyya Alam Bhuiyan held by icare or agencies within icare's auspices; and (4) a further statement of Koby Moore, dated 4 November 2019. This statement was accepted into evidence, subject to weight, as it was primarily a response to what the applicant had said in her statement concerning her telephone conversation with Ms Moore on 26 February 2019. Attached to Ms Moore's statement was a print out, with redactions, of the report she had initially located. That report clearly did not relate to the applicant and is excluded information.
Ms Alam submitted that the conduct of the various officers of icare who were involved in the processes described in the passages set out in [35] above was 'wrongful' and 'possibly unlawful'. Ms Alam submitted that the evidence given at first instance regarding the matters set out in [35] above should have damaged the credibility of the witnesses for icare who said that no information could be found, relevant to Ms Alam's enquiry. Ms Alam said that the Tribunal should have given consideration to the matters set out in [35] as supporting her contention that there was some deliberate act of concealment or other unlawful conduct, constituting an offence under ss 116-120 of the GIPA Act.
Ms Alam submitted that the Tribunal at first instance made an error of fact in finding that no documents relevant to her application to icare were held by icare.
We do not consider that the factors set out in Collins v Urban in [31] above are present in this case. There is no basis here for the giving of leave to appeal on a question of fact. There is no issue of principle or question of general importance or application. We accept that Ms Alam genuinely believes that she has suffered a clear injustice, but we disagree. The Tribunal at first instance accepted the evidence of Ms Moore that the report initially located by her did not relate to the applicant and was excluded information. The Tribunal had before it the redacted copy of the print out of the record located. The evidence was that the birth date of the person to whom that record related was not Ms Alam's birthdate. There was no other evidence which contradicted that evidence or countered the inferences from it.
Ms Alam also submitted that the Tribunal erred in finding that icare had provided a comprehensive explanation of the search methodology used. This is because, as described above, Ms Alam believes that the adequacy of the method used cannot be properly assessed unless the Tribunal can assess: 'the protocols and algorithms used by an agency's search engine or engines of its databases and systems in order to assess the reasonableness of the searches undertaken'.
As we have said above, there is no warrant in the GIPA Act or the general law to require an agency to justify or enhance the capability of the resources reasonably available to it. The evidence before the Tribunal at first instance was evidence of reasonable searches which complied with s 53 of the GIPA Act.
We do not consider that a basis for a grant of leave to appeal on a question of fact has been established. Leave will be declined.
Had we granted leave, we would have found that no reasonable grounds have been established to show that information responsive to the applicant's application is held by icare.
The Tribunal at first instance said, at [46]-[51]: 46 The Tribunal has accepted that the applicant bears a 'practical onus' to establish that the requested information exists, or that there is a possibility that it exists and is held by the agency: Webb v Port Stephens Council [2018] NSWCATAP 224 at [39] and Amos v Central Coast Council [2018] NSWCATAD 101 at [39]. However, this does not detract from the respondent's legal onus to justify its decision as required under s 105 of the GIPA Act. 47 In her written submissions of 25 November 2019, the applicant reiterated the basis on which she contended that the respondent held information about her. She said a former employer had directed her to attend its nominated medical practitioner, as the employer believed that the applicant had sustained a workplace injury that fell within Part 2 of the Workers Compensation Act 1987 (NSW). The applicant said she attend the nominated medical practitioner, who then provided a report to her employer. The applicant did not receive a copy of the report, but was told by her employer that it had notified its insurer of the applicant's suspected workplace injury. 48 The applicant noted that, under the terms of the Workers Compensation Act, her employer had an obligation to report the alleged workplace injury to its insurer. The applicant went on to assert that, as her employer's insurer was a scheme agent of the respondent and a large business with a substantial human resources function, there was every expectation that her employer would have reported the suspected workplace injury. 49 That the applicant was told by her employer that it had informed its insurer of the suspected workplace injury is not disputed. However, this does not mean that the information was in fact given to the insurer of the applicant's employer. Even if the information had been given to the insurer of the applicant's employer, this did not mean it was information held by the respondent, as not all insurers are a 'scheme agent' of the Nominal Insurer created under s 154A of the Workers Compensation Act: Workers Compensation Act, s 154G makes provision for the Nominal Insurer to enter into an agency agreement with a person (a scheme agent) to act as an agent for it in connection with the exercise of any of its function. 50 In this case, the applicant is unaware of the identity of the insurer of her former employer, or whether the insurer was a scheme agent. 51 In any event, I accept that there are reasonable grounds to believe that the requested information about the applicant exists, but I am not persuaded that there are reasonable grounds to believe that the requested information is held by the respondent. However, in the event I am wrong, I have also considered whether the search efforts made by the respondent to locate the information were reasonable in the circumstances.
In her submission to the Appeal Panel, Ms Alam objected to the Tribunal's finding in [51] regarding whether there are reasonable grounds to believe that the requested information is held by the respondent. Ms Alam reiterated that she had been told by her former employer 'that it had informed its insurer of a "suspected workplace injury" and that it had provided to its insurer, icare, of the Applicant's personal, sensitive and/or medical information'[sic].
The Tribunal at first instance did not doubt that Ms Alam had been told by her employer that information had been provided to its insurer. However, that evidence is hearsay. No direct evidence was provided from that employer. In weighing up the evidence of the searches, on one hand, with that hearsay evidence, on the other hand, it was reasonable for the Tribunal to conclude that no document was held by icare.
Ms Alam objected to the Tribunal at first instance considering that it was a possibility that her former employer sent the information in question to an insurer who did not forward it to icare. Ms Alam submitted that there was no evidence that this had occurred, and argued that it constituted an error in the Tribunal's reasoning. We disagree. The Tribunal at first instance was simply contemplating the possible ways in which Ms Alam's former employer could have been telling her the truth without the information Ms Alam seeks coming into icare's possession. That involved an understanding of the scheme established under the Workers Compensation Act 1987 (NSW) and the State Insurance and Care Governance Act 2015 (NSW). The Tribunal at first instance correctly rejected Ms Alam's contention that her evidence of what her employer told her was conclusive evidence that icare has the information she seeks in its possession.

The request that the Tribunal report possible offences

Ms Alam sought to compel the Tribunal to assess and report the possibility of the commission by the respondent, or officers of the respondent, of one or more of the offences under Division 2 of Part 6 of the GIPA Act.
The GIPA Act, in s 116 to s 120, sets out a number of offences. It would not be appropriate in the context of a decision in relation to an administrative review of an agency's decision for the Tribunal to express any view in relation to the possible commission of any offence. There is no basis in law for the orders sought by Ms Alam in relation to this issue, and therefore no error of law or fact by the Tribunal at first instance in omitting to deal with it.

Conclusion and orders

No error of law has been demonstrated in the decision of the Tribunal at first instance.
The basis for a grant of leave to appeal on a question of fact has not been established by the appellant.
We make the following orders: 1. The application for leave to appeal on a question of fact is refused. 2. The decision of the Tribunal published on 5 June 2020 is affirmed. 3. The appeal is dismissed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2020

Administrative Decisions Tribunal Act 1997(NSW)

At a glance

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Judgment (10 paragraphs)

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Cited By (3)