In February 2014, the applicant applied to Roads and Maritime Services under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") for information in "Minister Gay's file regarding Forty Bends development of GWH." The reference to "Minister Gay" is to The Hon. Duncan John Gay and "GWH" is a reference to the Great Western Highway.
The applicant's application was transferred to the Office of the Minister for Roads and Freight (see GIPA Act, ss 44 and 45) and that Office provided the applicant with approximately 200 pages of documents.
The applicant then made a second application to Roads and Maritime Services under the GIPA Act for information. The relevant part of the application requesting information is as follows:
"Duncan Gay's Minister's file re Mt Victoria to Lithgow with attention to 'Forty Bends' section of GWH. All documents 26 March 2011 to 17 July 2012. NB: I have applied to GIPA for the file 2011-14. I received all but 2011-12."
Roads and Maritime Services transferred the applicant's application to the respondent.
On 6 November 2014, the respondent notified the applicant of the respondent's decision that the information sought was not held by the respondent.
On 1 December 2014, the applicant applied to the Tribunal for a review of the respondent's decision.
At a planning meeting held on 3 February 2015, the applicant's position was that the search terms used on behalf of the respondent to locate the information she sought were inadequate. I directed the applicant to write to the respondent identifying any further search terms which may assist in locating the information the subject of her application, and directed the respondent to advise her whether any information could be located and disclosed to her.
At a further planning meeting held on 25 February 2015, the respondent reported that no further information had been located using the additional search terms provided by the applicant. I directed the parties to file and serve evidence and submissions.
On 27 May 2015, after reviewing the material filed by the parties and hearing submissions from the parties about whether the matter should be determined on the papers, I was satisfied that the issues for determination could be adequately determined in the absence of the parties by considering the material provided to the Tribunal. I made an order dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
RELEVANT LEGISLATIVE PROVISIONS
Under s 53(1) of the GIPA Act, 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. By s 53(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.
Pursuant to s 58(1)(b) of the GIPA Act, an agency may decide an access application for government information by deciding that the information is not held by the agency.
A decision that government information is not held by the agency is a reviewable decision (GIPA Act, s 80(e)).
In the circumstances of these proceedings, the burden of establishing that the decision is justified lies on the agency (GIPA Act, s 105(1)).
WERE THE AGENCY'S SEARCHES REASONABLE?
The respondent has the onus of satisfying me that it conducted reasonable searches to locate the information sought by the applicant.
When determining what constitutes an adequate or reasonable search, this Tribunal and the former Administrative Decisions Tribunal have been guided by the decision of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) QAR 464 (see, for example, Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18]; Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [11] and Stanley v Roads and Maritime Services [2014] NSWCATAD 123 at [16] and [17]). In the Shepherd case, the Queensland Information Commissioner outlined a two-stage test to resolve the question of what constitutes an adequate search for the purposes of the Queensland freedom of information legislation as it then stood, being:
"(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case."
The respondent adduced evidence of the searches which had been undertaken to locate the information sought by the applicant. Ms Natalia D'Morias, a staff member in the Minister's Office, affirmed an affidavit in which she gave evidence that that office holds digital records on its records management system ("TRIM"), the shared computer "G" drive and Microsoft Outlook. Her evidence was that the Minister's Office does not routinely keep copies of departmental files or documents contained on departmental files. She said that briefing notes received and signed by the Minister are returned to the department for inclusion on the departmental file and may be scanned for inclusion on the Office's "G" drive or Microsoft Outlook folder, but this is done irregularly. Ms D'Morias also said that the Minister's Office did not keep paper files.
Ms D'Morias gave evidence of the searches she had undertaken. She stated that she had initially searched TRIM and the Office's "G" drive using terms such as "Sarah Childs," "Childs" and "Forty Bends." She said she then conducted further searches using the terms "Mount Victoria," "Mount Victoria Lithgow," "Mt Victoria," "Mt Victoria Lithgow" and "Great Western Highway". Following correspondence with the applicant, Ms D'Morias arranged for further searches to be carried out of TRIM, the "G" drive and the Minister's Microsoft Outlook system, using terms proposed by the applicant, such as "Mt Victoria to Lithgow GWH", "Dick Austen," "Lithgow Forum," "Forty Bend," "Purple Corridor," "Evans and Peck" and "Black Ice". As a result of the further search, she found twelve pages of information falling within the scope of the applicant's application. Ms D'Morias also located an additional two pages using the search term "Albanese". She provided the additional fourteen pages to the applicant.
The respondent submitted that, in light of the searches undertaken, there were no reasonable grounds to believe that any further documents fell within the scope of the applicant's request. The respondent said that, in assessing whether there are reasonable grounds to believe that further documents exist, the Tribunal should consider the way the agency's record-keeping system is organised, relying upon Miriani v Commissioner of Police, NSW Police [2005] NSWADT 187 at [30].
In her written submissions, the applicant said that she was satisfied that Ms D'Morias had conducted an exhaustive and thorough search. She reiterated this orally at the planning meeting of 27 May 2015. However, the applicant referred to documented meetings involving the Minister or Minister's office and said that it was reasonable to assume that minutes, notes or memorandum of action plans had been made concerning those meetings. These had not been produced. Similarly, she said, there was a lack of documentation about a particular telephone call of which she was aware, and also about a presentation to Minister Gay, where such documentation would be reasonably expected to exist. Further, there was no evidence of any response to certain letters written to Minister Gay.
The applicant submitted that the paucity of information was not acceptable as the restructure involved at least $250 million.
I am satisfied from the evidence given by Ms D'Morias that the searches for the information sought by the applicant, which were conducted on behalf of the respondent, were reasonable. The applicant conceded as much.
The applicant has pointed to some grounds to believe that the requested documents exist, being that it would be reasonable to expect more documentation concerning a project which involves, on the applicant's evidence, a large amount of public money. Apart from the applicant's description of a "restructure" involving over $250 million, there was very little evidence about that project and how it related to the applicant's GIPA application. In any event, given the respondent's evidence that the Minister's Office does not keep paper records and only scans briefing notes in an irregular fashion, I am satisfied that there are no reasonable grounds to believe that those documents, if they exist, are documents of the respondent.
The respondent has adopted a cooperative approach to determining the applicant's GIPA application, including by using the applicant's proposed search terms to search for the information she seeks. This has produced more information, which has been provided to the applicant. In these circumstances, I am satisfied that the search efforts made by the respondent have been reasonable.
For these reasons, the correct and preferable decision is that the respondent does not hold any information the subject of the applicant's application, other than that already provided to her. The respondent initially decided it held no information the subject of the applicant's request. Accordingly, I vary that decision to reflect the circumstance that some information was found and provided to the applicant after these proceedings commenced.
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: 10 June 2015