Will dealing with the request constitute a substantial and unreasonable diversion of the agency's resources?
58Both Ms Makira and Ms Roberts gave evidence to the Tribunal and were cross-examined by Mr Altaranesi.
59Ms Makira agreed that at the time she made her decision she had not reached the point of engaging in any third party consultations with respect to Mr Altarenesi's amended request. Ms Makira has been SSWAHS' FOI Area Co-ordinator since 2007. In that position she has made many advance deposit requests. These required that she estimate the time and resources involved in complying with FOI requests.
60Ms Makira deposed that she had made inquires of the following people in an effort to get an understanding of the work involved in retrieving the documents sought in the amened request -
Ms Whalan, Director of Corporate Services who estimated it would take two days to search through her email and described it as "an enormous task."
Mr Wysoki, Workers Compensation Clerk, who advised it would take five to six hours to go through his emails.
The Workers Compensation manager who considered that five or six hours would be required to search his emails, and three hours to retrieve all Mr Altarenesi's files.
Mr Leahy, now Acting General Manager of Sydney Dental Hospital, who thought it would take two days to review and assess his emails.
Mr Harding, Manager of Domestic Services who thought 6 hours would be required to retrieve files and emails.
Dr Nossar, Staff Health, who considered it would take two hours to search his email.
61In addition Ms Makira estimated the time it would take two members of staff she could not contact to undertake the necessary searches and retrieve documents. She considered it would take Ms McAllister from Staff Health five hours to retrieve files and check her emails, and Ms Mills, The HR Director, six hours. To all this Ms Makira also added an allowance for copying time.
62In her view it would take 68 hours of agency time for the documents subject to the request to be identified of staff time, before considering whether they fell within the scope of the application, undertaking third party consultations, considering what (if any) exemptions would be claimed, and preparing reasons for any decisions made.
63Ms Roberts is the Principal Investigations Officer of SSWAHS. She is based at Camperdown, whereas Ms Makira is at Liverpool. Ms Roberts made the delayed decision on internal review. She agreed with Ms Makira's estimate of the time it would initially take to identify and retrieve information likely to fall within the scope of Mr Altaranesi amended request. She said that she regarded Mr Altarenesi's amending letter of 16 December 2009 as significantly expanding the scope of Mr Altaranesi request, as it extended to emails and faxes held in different systems and archived.
64Ms Roberts said that she is familiar with the record keeping systems of hospitals and departments within the area health service. Mr Altaranesi amended request would require each of the individuals named, and staff within their departments, to search records, files and archives in order to ascertain what documents they hold that may fall within the scope of the request. Given the number of individuals and departments involved, and the breadth of Mr Altarenesi's request, she agreed with Ms Makira's estimate. Ms Roberts conceded that she had not made inquiries of the individuals concerned, but had relied on her knowledge and experience when reaching that view.
65In his evidence Mr Altaranesi said that in his time as an employee of SSWAHS (commencing 2004) he had made four workers compensation claims: two early in his employment and two around the time of his dismissal. He agreed that he had made a claim against SSWAHS to GREAT. He denied suggestions that he had commenced three separate proceedings against SSWAHS at GREAT, but did agree that his proceedings before GREAT were divided into three categories: fairness, discipline and threatening to sack him.
66Mr Altaranesi also agreed that he had been subject to a banning order prohibiting him from going on to the grounds of Royal Prince Alfred Hospital (save specific exemptions).
67Mr Altaranesi said that he had been involved in proceedings in the Industrial Relations Commission against SSWAHS in 2008 for an underpayment of wages and alleging that he had been victimised. In cross-examination Mr Altaranesi was shown a series of affidavits he had sworn in IRC proceedings numbered -
1509 of 2008 (Exhibits R3, R4, R5 and R6) - relating to unlawful termination following internal disciplinary investigations
2152 of 2008 (Exhibits R5, R8) - for relief from victimization under s 113of the Industrial Relations Act.
In addition Mr Altaranesi relied on affidavits in which he annexed further documentation demonstrating that there were two additional proceedings between SSWAHS and himself in the IRC, numbered 423 and 434 of 2008: see Mr Altarenesi's affidavits of 6 October 2010 (No's 10 & 11).
68An examination of all those affidavits reveals an extensive history of disputation and conflict surrounding Mr Altarenesi's employment with SSWAHS from 2004 to early 2009. They refer to a series of incidents, workers compensation claims, investigations and complaints (by and against Mr Altaranesi) involving the individuals and departments mentioned in Mr Altaranesi amended request. Those affidavits (with attachments) alone constitute a bundle that is approximately five to six centimetres thick.
69While Mr Altaranesi objected that the affidavits were irrelevant to the issues before this Tribunal, I take a different view. They point to both the complexity and the likely volume of material involved in Mr Altarenesi's amended request. It relates to issues covering the course of his employment. Each of the various proceedings he had been involved with against SSWAHS, no matter in which jurisdiction, is likely to have left a considerable paper trail which falls within the scope of his amended request. Similarly the internal complaints he made, or was the subject of, while an employee of SSWAHS, and the investigations relating to them, can be expected to have given rise to extensive records. All within the scope of his amended FOI request.
70In submission and evidence Mr Altaranesi objected that the IRC and GREAT affidavits were in the public domain and not subject to his amended request. Three points need to be made about this. First, Mr Altaranesi did not exclude from his amended request documents relating to those proceedings. Secondly, the documents clearly fell within the scope of his amended request. While SSWAHS may have ultimately been able determine that they were available for inspection at the Tribunal's concerned, and refused access under s 25(1)(b), it remained obliged to consider them when dealing with his amended request. Thirdly, each set of proceedings will have generated a volume of material associated with fact finding and obtaining evidence relevant to the proceedings, and the giving and receiving of advice concerning them. This too falls within the scope of the amended request.
71I consider that material responsive to Mr Altarenesi's amended request is likely to be voluminous. I accept the evidence of Ms Makira and Ms Roberts that 68 hours is a reasonable estimate of the staff time required to identify and copy relevant documents.
72Once those documents have been obtained it will be necessary for them to be examined to ensure they fall within the scope of the amended request, and for their release under the Act to be considered. A schedule of documents will have to be prepared: this will be extensive. While many of the documents may well be non contentious or in the public domain, I think it likely that there will be a significant number of documents concerning which SSWAHS will have to consider whether or not to claim exemption under the Act. Given the history, it can be confidently expected that there will be a significant number of documents over which SSWAHS might consider a claim legal professional privilege. Similarly, considerations relating to the confidentiality of personal information relating to staff members (who would have to be consulted) and those relating to confidential communications and the operation of agencies, would be matters one would expect to arise. Completing these steps is likely to be an extensive and time consuming task, comparable to that involved in identifying the documents.
73The factors to be taken into account when considering whether to refuse an application under s 25(a1) of the Act were set out by the President in Cianfrano v Premier's Department [2006] NSWADT 137 at [62].
(a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in Re Borthwick at 35)
(b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick )
(c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications
(d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost
(e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application
(f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)
(g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns
(h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made
(i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
74That list is not exhaustive. In Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 the Appeal Panel cautioned that, at [45] -
"The Tribunal must have persuasive evidence as to what work would be involved in dealing with the application for access. Necessarily in cases where the agency relies on s 25(1)(a1) to refuse access there will be a speculative aspect to the agency's assessment."
75SSWAHS is an area health service providing hospital and medical services to a significant part of greater Sydney. While it has a great many staff (some 22,000 according to Ms Makira) the reality is that the great majority of them are engaged in the provision of hospital, medical and associated services. The documents Mr Altaranesi has requested all relate to his interactions with SSWAHS, both as an employee and patient. There will be many thousands of pages responsive to his amended request, relating to issues associated with his employment. While it is likely that there will be significant duplication of those documents among the persons and departments to whom the request relates, that does not reduce the task of identifying and sorting them.
76Mr Altaranesi expressed reason for seeking the documents is that they are "personal" to him. Despite requests, I am satisfied that he has refused to reduce the scope of his amended request. Rather, he has attempted to split it in an effort to avoid a claim that the request involves a substantial and unreasonable diversion of resources. I accept that processing his amended request will place a considerable burden on SSWAHS' resources, and involve significant costs.
77From the time the amended request was received, SSWAHS alerted Mr Altaranesi to its likely difficulties, but he has not been wiling to reduce the scope of his request in any meaningful manner. The initial estimate made of the time required to identify documents likely to fall within the scope of the request, 68 hours, was a reasonable one. Time spent considering the documents, preparing a schedule, considering whether to claim any and what exemption, and undertaking necessary consultations is, I consider, likely to take the time required to more than 100 hours.
78I accept that the work involved in processing Mr Altaranesi amended request would substantially and unreasonable divert SSWAHS resources. As a result I consider that the deemed refusal should be affirmed.
79I add that, if I were reviewing the delayed decision, I would affirm it for the same reasons.