Challita v Secretary, Department of Education [2026] NSWCATAD 31;

(1) A bundle of 9 documents with a covering letter dated 13 June 2025, lodged 23 June 2025 (R1);

(2) Written submissions dated and lodged 25 July 2025 (R2);

(3) Affidavit of Jenni Pendergast dated 24 July 2025, lodged 25 July 2025 (R3);

(4) Written submissions in reply filed and dated 8 September 2025 (R4);

(5) Second Affidavit of Ms Pendergast dated and lodged 8 September 2025 (R5); and

(6) (provided during the hearing) - a copy of the applicant's access application (ref: GIPA-24-2746) received by the respondent on 16 December 2024 (R6).

1. The applicant's submissions sought to enlighten the Tribunal about her allegations of a "sustained pattern of concealment and misrepresentation over two decades", which stemmed from her complaints against the respondent regarding selective school tests undertaken by her children in 2002 and following years. This was described as follows by the respondent:

"From at least 2002, and in the early 2000s, the applicant made many complaints to the Department's predecessor (the Department of Education and Training) about the way in which her children's applications for selective schools were processed and alleged corruption and bias ... "

1. Since that time, there was a history of requests for information under the GIPA Act and predecessor Freedom of Information ("FOI") legislation, as well as other complaints and proceedings initiated by the applicant.

1. This particular access application, dated 16 December 2024 (R6, "the GIPA Application"), was in the following terms:

"I hereby submit a request under the Freedom of Information Act [sic] for the following:

1[a]. Complete information relating to the document attached headed 'List of regular correspondents to which acknowledgements/responses should not be sent' is requested. This document should detail the reasons for my inclusion on the list, as referenced in the letter from the DET attached.

[b] All documentation, correspondence, emails, notes, submissions, briefings, meeting minutes, justifications, decisions, and any information relating to discussions and determinations regarding a classification as vexatious or non-reply, specifically concerning me, Jolanda Challita, including the 2005 case outlined in the attached by Chris Ballentine and John Harrison/Lee Raynor.

2. The full email to be produced from Chris Ballentine see below; pages were missing when previously provided under FOI. The date of the email being around 6 December 2005.

Date from: Date to:

2002 2024"

1. Accompanying the GIPA Application were uploaded "snips" extracted from three documents that had been released by the respondent to the applicant under earlier, different, requests. Those documents (in chronological order) were:

(a) A redacted document titled "List of Regular Correspondents to Which Acknowledgements/Responses should not be sent" ("List Document") - said by the applicant to be dated 27 November 2003;

(b) An email chain between the following staff of the respondent:

(i) from Magda Pollak to Chris Ballantine (6 December 2005) including an extract from a 2005 submission to the Minister of Education which said - inter alia:

"It is proposed that once the ADT [Administrative Decisions Tribunal] delivers its judgment and once the complaint to Audit Directorate has been dealt with, the Director-General will be asked to approve the designation of this complainant as vexatious. Thereafter correspondence on only current matters will be responded to.

CONSULTATION:

John Harrison, Relieving Manager, FOI and Privacy

Lee Rayner, Senior Legal Officer.

FINANCIAL IMPLICATIONS:

Not applicable."

(ii) a response (undated on the copy provided) saying - inter alia:

"I note that Mrs Challita has been declared vexatious in the past and it may be necessary to put a submission up to the Director-General to have her declared vexatious again following the assessment of her current allegations.

I also recommend that you refer to the NSW Ombudsman's publication, Dealing with Difficult Complainants (should be available from their website) as it has practical advice that could be used in this situation".

(c) A 25 March 2008 letter to the applicant from the respondent's Freedom of Information ("FOI") manager relating to an earlier FOI application, which stated (my emphasis):

"In the first part of your request you seek access to:

'All documents, correspondence, papers, memos, emails, file notes, written communications, submissions, recommendations, minutes of meetings and reports relating to the decision to deem Jolanda Challita vexatious for the period 2002 to date'.

The Department does not have a policy on 'vexatious correspondents'. Neither the Department of Education and Training, nor the Minister for Education and Training has deemed you to be vexatious. The documents 60 [being the List Document] and 61 provided under this determination indicate that the Minister for Education and Training has included you on a list of correspondents to which responses or acknowledgement should not be sent and the reason why that decision has been made."

1. On the GIPA Application form under "Reason for making this application" the applicant said:

"I wish to chase a complaint that the Prime Minister Mr Albenese [sic] sent to the Education department and I believe that I have been unfairly and unjustly blackmarked. I wish to establish the situation with the matter of how I am being responded to and why..."

1. A delegate of the respondent determined the GIPA Application by letter dated 3 February 2025 (R3, Annexure A). The decision was (i) to release in full an 11 page document ("Released Document": R3, Annexure B) and (ii) that no further information was held.
2. The letter said, inter alia (my emphasis in italics):

"Search for records

...

The department keeps records electronically (in shared drives and an Electronic Documents Management System), in physical files (hard copy) and in individuals' email accounts. The following systems were searched by the relevant areas:

• Local computer files and other electronic record systems.

• TRIM/HPRM

• Archives

I consider that reasonable searches have been undertaken in response to your application in accordance with section 53 of the GIPA Act. Based on the information available to me, I am satisfied that all records that exist relevant to your request have been identified and provided to me for consideration.

Relevant information

A total of 11 pages have been received from Legal Services. These records have been identified as relevant to point 1(a) of your access application. This is the only record found that has not been destroyed.

...

Information not held

Part 1(b)

Searches were undertaken by Educational Standards who informed me that no information is held for part 1(b) because the information about this matter has been destroyed according to the Functional Retention and Disposal Authority: FA 416.

Part 2

Chris Ballentine, John Harrison and Lee Raynor no longer work for the department, and because the emails are around 17 years old, they would be destroyed under the functional retention and disposal authority below....

Functional Retention and Disposal

Authority: FA416

1.2.3

EDUCATION - Complaints & investigations

Records relating to the management of complaints that do not relate to allegations of child abuse but are escalated to senior management for resolution. Includes contested examination results etc.

Retain minimum of 7 years after action completed then destroy.

1.2.4

EDUCATION - Complaints & investigations

Records relating to the management of complaints that are resolved by the school, referral to other organisations etc.

Retain until administrative or reference use ceases, then destroy.

After undertaking searches, the Information technology directorate informed me that they only hold records as far back as 2015. Even if they did hold emails earlier than this under s 53(4) of the GIPA Act, the department is not required to undertake searches for records in a backup system unless there has been a contravention of the State Records Act 1998 or were destroyed, transferred or otherwise dealt with contrary to the department's established record management procedures.

In this instance there has been no contravention because they were destroyed in accordance with Function Retention and Disposal Authority."

1. The Released Document was a submission to the Minister setting out the relevant background and case history relating to the applicant's complaints "regarding the placement of her children in opportunity classes and selective high schools". The document stated (my emphasis):

"Extensive enquiries have now been completed by both the Department and an external agency. It seems appropriate to consider the matter closed and to file any future correspondence unless it relates to matters not raised before."

1. The submission recommended "[t]hat the Minister notes the above information and signs the attached response if approved". The relevant staff who prepared and approved the submission were noted, but the document contained no actual signature.
2. The attachment was a draft letter to the Member of Parliament who had written to the Minister on 16 October 2003 regarding the applicant's complaints received by him. As this was the latest date located within the 11 pages of text I find, on the balance of probabilities, that the Released Document was prepared late in 2003 or early 2004.

1. On 15 February 2025 the applicant applied for internal review (A2, Annexure 5) in a lengthy document which sought, among other things, signed versions of documents, documents which were destroyed whilst under consideration by the ADT, an unredacted copy of the List Document and related documents; and proof of investigation and reports, findings, correspondence and internal briefings: R2 at [9], and p 28.
2. The internal review was undertaken by Ms Pendergast.
3. In the course of conducting that internal review, Ms Pendergast liaised with other persons and undertook further searches, which are discussed below.
4. Ms Pendergast affirmed the original decision and notified the outcome to the applicant on 24 March 2025 (R3 at [9] and p28).

1. The application for administrative review was filed with the Tribunal on 24 April 2025, within the 40 working day period prescribed by s 101(1) of the GIPA Act. Accordingly, the Tribunal has jurisdiction to determine this matter.
2. The Tribunal's jurisdiction is limited to a review of the respondent's decision in respect of the application made to it, and only then in respect of identified "reviewable decisions".
3. I agree with the respondent that it is unnecessary to address various submissions made by the applicant concerning the public interest considerations in favour of disclosure of the information sought. This is because no information responsive to the application was withheld on the basis it was subject to an overriding public interest against disclosure.
4. Rather, the question in these proceedings is whether no further information is held: s 80(1)(e) of the GIPA Act. That section also confers jurisdiction on the Tribunal to review an "implicit decision" that no further information is held, beyond that which is dealt with in a decision: Amos v Central Coast Council [2018] NSWCATAD 101.
5. In discharging the respondent's burden of proof requiring that the Tribunal be satisfied that the information is "not held", the reasonableness of the search undertaken (s 53) operates as a "plainly relevant factor": Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 ("Wojciechowska") at [41].
6. Section 53 of the GIPA Act provides as follows:

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.

"In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

(1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1)- (5);

(2) determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

(4) applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act."

1. What constitutes a reasonable search will vary with the circumstances of each matter and depends upon the agency to whom the access application is made and on what terms it is made.
2. "Government information" is defined in s 4 of the GIPA Act as "information contained in a record held by an agency". In Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288, the Tribunal found that "government information" was a reference to an existing record of information held by an agency, not a record that is not in existence but is capable of being produced. Accordingly, if no record containing the requested information exists at the time when the application is made, a decision that the information is "not held" is appropriate.

1. The applicant had sought summonses for the attendance of two employees of the respondent referred to in the affidavits of Ms Pendergast.
2. Following a discussion at the hearing, the applications were not pressed at the proceedings, and would in any event have been refused. The respondent agency to GIPA proceedings has the onus of proof, and the applicant should not be permitted to require the attendance of employees of the respondent who have not provided statements or affidavits.

1. Ms Pendergast confirmed the contents of her two affidavits (R3 and R5). Relevant facts from her affidavits, as supplemented by her oral evidence, are set out below. Ms Pendergast was cross-examined by the Applicant.
2. Ms Pendergast is the Manager, Right to Access, Legal Services at the respondent agency (the Department of Education). She has held that position since 2019 and worked in the Legal Services Directorate since 2010.
3. In that role, she deals with requests for information under the GIPA Act. In this case, she made the internal review decision in respect of the applicant's GIPA request.
4. Ms Pendergast deposed in her affidavits as to the chronology of events and the searches and enquiries undertaken which led her to conclude that there were no further responsive records held.
5. Ms Pendergast explained that she was generally aware of the applicant's history of prior requests, but she dealt with the matter as would be expected with any other request.

(1) The Tribunal asked her to provide further detail regarding the document systems, the searches undertaken in response to the applicant's application, and how the Tribunal could be satisfied that all relevant responsive documents had been produced.

(2) It was not in dispute that there were 3 sources of "government information" held by the respondent - the TRIM/HP system, staff emails, and hard copy documents.

(3) Documents are uploaded into TRIM/HP which is the repository for official documents and communications, as well as relevant internal correspondence regarding a matter.

1. To the extent that Ms Pendergast's second affidavit (R5) dealt with an argument raised by the applicant regarding a table on page 3 of the GIPA Search Officer Declaration Form, I find that the applicant's argument was misconceived. The table (described by Ms Pendergast as a "Redaction Table") and its template "examples" were neither relevant, nor required to be completed because no redactions were made or contemplated. It is of no relevance to the reasonableness of the search or the question I am required to consider.

1. The gist of the applicant's submissions was that the respondent's decision under review should be closely analysed and tested, because there was (she said) a demonstrated history of misrepresentation, locating documents a long time after they should have been provided (in respect of other GIPA Act requests), and other questionable practices including the altering of documents.
2. Most of the allegations made were of no relevance to the Tribunal's task. As stated above, I am required to review the decision that no further documents were held which, in turn, requires a consideration of evidence regarding the searches undertaken. That is the only matter which I will consider below.

1. As noted by Senior Member Higgins in Davison v NSW Department of Education and Training [2013] NSWADT 24 at [31]:

"[The applicant's complaint] is that information that she expected to be there, such as a record of decisions made and discussions had, were not located or identified. While I can understand the applicant's concerns, the only outstanding matter relevant to her GIPA request is whether the respondent has met its obligations under subsection 53(2) of the GIPA Act and undertaken 'reasonable searches' by 'using the most efficient means reasonably available' to it. On the basis of the submissions of the respondent, which outlines the searches it has made and the responses it has received, I am satisfied that it has met its obligations and undertaken reasonable searches."

1. In this case, I am satisfied, on the balance of probabilities, that "reasonable searches" were undertaken.
2. First, I could not ascertain anything of any specificity from the applicant's evidence or submissions that raised a concern that other responsive documents were still held by the respondent as at the date of her request.
3. Second, as to the quality of the evidence before me:

(1) The Tribunal is not bound by the rules of evidence and may inform itself on any matters as it sees fit, subject to the rules of natural justice.

(2) Despite the vagueness of some of Ms Pendergast's evidence under cross-examination and questions from the Tribunal (not recalling names, and not realising that the declaration annexed to her affidavit by Mr Stone was unsigned and undated until alerted to this fact at the hearing), I found Ms Pendergast to be a truthful and credible witness and accept her evidence regarding the respondent's systems, their functionality, the destruction policies (including in respect of emails), and the searches which she undertook.

1. I am satisfied as to the following facts arising from her affidavits and oral evidence in respect of the searches undertaken:

(1) As at the date of the hearing, Ms Pendergast had made appropriate enquiries of all relevant areas in which the records would be expected to have been located, engaging with (and obtaining assistance and confirmations from) the relevant respondent officers and staff.

(2) Ms Pendergast herself conducted further searches for 4 hours, as stated in her affidavit.

(3) Mr Stone himself wrote the information in his declaration without any assistance from her before electronically sending and/or uploading it into the system (notwithstanding he did not complete the date or sign the form). I accept Ms Pendergast's evidence in cross-examination that she did not complete any part of the declaration for or on behalf of Mr Stone, or suggest or instruct Mr Stone in respect of any aspects of the search; and

(4) I am satisfied on the balance of probabilities that Mr Stone was requested by Ms Pendergast to undertake a search of his systems, and conducted a search for 1 hour as stated in the declaration, without locating any responsive documents.

(5) On or about 3 September 2025, Ms Pendergast requested that searches be conducted of the Audit Directorate's records on TRIM for information responsive to the access application using the search term "Challita", and that those searches did not identify any information responsive to the access application that was held by the Audit Directorate (R5 at [6]-[7]).

No obligation to search back-up systems under s 53(4)

1. Despite the applicant's allegations, I am not satisfied there was any breach of the State Records Act 1998 ("State Records Act") and thus there was no requirement under s 53(4) of the GIPA Act to search any electronic back-up systems:

(1) It is my view that any further responsive information, if it had previously existed, was likely to have been irretrievably deleted or disposed of from the respondent's systems, given the passage of time - the events in question having occurred prior to 2010, and the current request having been made in 2024;

(2) I have been presented with no evidence that any responsive information was not dealt with in accordance with the State Records Act, or disposed of contrary to the respondent's record management procedures (R3 at [24]-[25], and Annexure G). In particular, I note the italicised extracts at par 14 above regarding the closing of the process relating to the complaints many years prior;

(3) I am also satisfied that the three relevant personnel referred to in the GIPA Application had all ceased employment prior to 2015 and that as a result there were no back-ups of their emails in existence as stated in the affidavit of Ms Pendergast.

1. For the reasons set out above, the Tribunal is satisfied that the respondent has undertaken reasonable searches and met its obligations under s 53 of the GIPA Act.
2. The correct and preferable decision is that any further government information responsive to the applicant's request was "not held".

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.