Cianfrano v Director General, Premier's Department [1998] VCAT 162 | Case summary

REASONS FOR DECISION 1 The applicant applied to the respondent agency under the Freedom of Information Act 1989 (the FOI Act) by letter dated 24 February 2005 for access to certain documents. The material part of the application was expressed as follows (sic): 'I am requesting for all documents and or records etc, of the Premiers Department in relation to NSW Premier Bob Carr and Sydney Markets or Flemington Markets. The documents and or records etc, are to include all internal working documents and all factual material in relation to, NSW Premier Bob Carr and the preparation and finalization of the lease for the assets and business interests of the Sydney Market Authority and to the sale of the assets of Sydney Markets. … My application relates to factual material and all types of documents and or records etc, that NSW Premiers Department has in its possession and in relation to, NSW Premier Bob Carr and the Sydney Market Authority and Sydney Markets Limited and any other agency and or agent etc.' 2 The agency, in a letter dated 8 March 2005, advised that the request was of a kind that might lead it to refuse to deal with the request on the ground allowed by s 25(1)(a1) of the FOI Act (an amendment to the original Act made in 1992): '(1) An agency may refuse access to a document: … (a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions'. 3 The agency merely asserted that this was the case. It did not give any reasons in support. It invited the applicant to reframe his request, as contemplated in these circumstances by s 25(5): '(5) Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions.' 4 The revised terms of the request were the subject of a letter from the applicant dated 16 March 2005 which is not in evidence. The applicant did not at hearing challenge the different versions of his revised request, as recorded by the agency in the affidavit of Joseph Hanna, then Acting Manager, FOI and Privacy, filed in these proceedings at para [5], the way it is recorded in the affidavit of Mr Quinnell, a consultant, filed in these proceedings at para [5] and the way it is recorded in the formal correspondence of the agency dated 12 April 2005 and 18 April 2005. 5 The version recorded in Mr Quinnell's affidavit at para [5] would appear to be the most accurate as Mr Quinnell swears that the quotation is directly from the letter of 16 March 2005, and this evidence was not disputed: '… all documents and or records of the Premier's Department of Bob Carr MP and Sydney Markets and or Flemington Markets. The documents and or records etc, are to include all internal working documents and all factual material of Bob Carr MP and the preparation and finalization of the lease for the assets and business interests of the Sydney Market Authority and to the sale of the assets of Sydney Markets … My application relates to factual material and all types of documents and or records etc, that the NSW Premiers Department has in its possession of Bob Carr MP and the Sydney Market Authority and Sydney Markets Limited and any other agency etc to do with Sydney Markets.' 6 The way the revised request is described in the agency's determination dated 12 April 2006 is: 'All documents and/or records of the Premier's Department of Bob Carr MP and Sydney Markets and/or Flemington Markets, including material of Bob Carr MP and the preparation and the finalisation of the lease for the assets and business interests of the Sydney Market Authority and to the sale of the assets of Sydney Markets.' 7 The transactions to which the application is referring belong to the period when Mr Carr was Premier (1995-2005). 8 The Tribunal has now reviewed several applications by the applicant or his colleague, Mr Saggers, for review of determinations by agencies to which requests for access to documents held by them relating to the decisions that ultimately led in 2002 to the sale of the Sydney Markets to Sydney Markets Limited. The broader administrative context is referred to in many of the other decisions: see for example Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at paras [7]-[12]. 9 The agency made an original determination refusing the application, letter dated 12 April 2005 from Alex Smith, Deputy Director General (exhibited to Mr Hanna's affidavit). 10 In the determination dated 12 April 2005, the agency said: 'A search for the documents in the Premier's Department covered by your application would require a diversion of scarce staff resources. Although the scope of your request was revised, it remains too broad to enable the Department to locate and retrieve any documents relevant to your FOI application.' 11 It will be seen that it did not give any reasons in support of the claim relating to unreasonable diversion of staff resources. This, in the Tribunal's view, is unsatisfactory. An agency should provide the particulars that have led it to such a conclusion. Otherwise the applicant is not in a position to make any assessment of the agency's justification, leading to the possibility that the dispute will be forced on to the Tribunal, and the Tribunal's processes become the vehicle through which reasons are obtained. 12 This omission would appear to breach the agency's own guidelines. The Premier is the Minister responsible for administration of the Freedom of Information Act in New South Wales, with the agency as the portfolio department carrying out that responsibility. In that capacity it has issued the FOI Procedure Manual, Third Edition 1994. At p 79 the Manual refers to s 25(1)(a1) and (5): 'This section entails a positive approach by an agency - more than just telling an applicant that his or her application is 'too broad'. Where an agency uses these grounds to refuse to deal with an application, the reason needs to be documented and justified .' (emphasis added) 13 The applicant applied for internal review by a letter dated 12 April 2005 replying to the original determination. This letter was acknowledged 18 April 2005. The Tribunal infers that the letter was received between 12 and 17 April 2005. On this basis, as the internal review determination was not made within 14 days, there was a deemed refusal (s 34(6)), and the applicant was entitled to proceed to lodge an application for review with the Tribunal. The lodgment of the application for external review with the Tribunal on 2 May 2005 was in order: see further s 25(1)(a1) read in conjunction with s 34 and s 53(1) and (3)(a)(i). 14 Initially, the present application for review was joined to another application (Tribunal file no. 053155), the subject of an earlier hearing and now withdrawn. The hearing in relation to the present application occurred on 24 August 2005 and 22 November 2005. As the main written legal submissions of the agency were only filed at hearing on 22 November 2005, directions were made giving the applicant, who is a lay person, an opportunity to lodge further submissions within a further 21 days. Those submissions were lodged on 9 December 2005, and have been taken into account. Evidence 15 In support of its contention that processing the application would involve a substantial and unreasonable diversion of resources, the agency relied on the affidavit of Mr Joseph Hanna (exhibit R3 filed 28 June 2005) and the affidavit and oral evidence of Leslie Arthur Quinnell, a former officer of the Premier's Department (1975 to 2002) (exhibit R4 filed 24 October 2005). 16 At the hearing held 24 August 2005 the applicant had raised concerns as to the independence of the agency's evidence. According to Mr Hanna the files relevant to the request were all held by the Office of the Co-ordinator General (OCG), Premier's Department, whose Executive Director is Mr John Dermody. Mr Dermody's advice as to the scale of the request had been relied upon by Mr Hanna. 17 Mr Dermody was seen by the applicant as having a conflict of interest. Earlier in his career Mr Dermody had worked for the Sydney Market Authority, and was General Manager between 1986 and 1991. More importantly in the eyes of the applicant, he had later as principal of the business, John Dermody and Associates, consultants, been significantly involved in advising the Government in respect of the restructure of the Sydney Markets and the ultimate sale to Sydney Markets Limited. 18 The applicant noted that the advice given at that time by John Dermody and Associates had been the target of other FOI requests made by him or his colleague, Mr Saggers. The applicant raised the possibility, therefore, that the agency's reaction to his request might be affected, or might be seen to be affected, by partiality on the part of Mr Dermody. 19 While not accepting that there was a conflict, the agency sought an adjournment, which was granted, to enable it to put on evidence that avoided that criticism. Consequently it engaged a former officer with relevant experience who had held senior positions in the administrative services area of the agency, Mr Quinnell, now a consultant, to assess the request and provide evidence to the Tribunal. 20 The Tribunal has had regard to Mr Hanna's evidence, mindful of the concern raised by the applicant as to the confidence to be placed in the information given to Mr Hanna by Mr Dermody. 21 Mr Hanna explained the steps he took to respond to the request. The Manager of the FOI unit, Simon Carroll, sent a copy of the request to all units of the agency. All gave a 'nil' response except for the OCG. Mr Hanna explained that the OCG is the unit which co-ordinates projects of economic significance in New South Wales and which are seen as requiring a 'whole of government approach' to ensure their success. Mr Dermody advised by email dated 31 March 2005 that 61 Departmental files or folders fell within the scope of the request (by this time the revised request). He also advised that the electronic tracking device of the agency to keep track of files and documents (known as RecFind) showed a further potential 56 OCG files (mostly held in Parliamentary and Ministerial Services) which would have to be reviewed. In the email Mr Dermody estimated the total time that would be consumed in processing the request as 106.75 hours, covering review of each file, dismantle, copy and reassemble each file and review all permitted documents for supply to applicant. Mr Hanna noted that this assessment related only to the first 61 files mentioned. 22 Mr Hanna stated that Mr Dermody had informed him that as the OCG only has four officers, that it would commit one full-time staff officer to over 3 weeks of standard work to undertake this task; or, put another way, 25% of the OCG's strength would be diverted. Mr Dermody had submitted that this would have an unreasonable impact on the operation of the OCG. 23 Mr Quinnell attended at the resumed hearing and gave evidence. He informed the Tribunal that he was a retired officer with a close familiarity with the agency's administrative systems and resource implications. He worked for the Premier's Department from 1975 to 2002, his last position being Assistant Director General, State Administrative Services, a position he held for about 8 years. He stated that he had not had any involvement in the lease or sale of Sydney Markets. At hearing he explained that he had experience in making FOI determinations on behalf of the agency. 24 He based his search on the applicant's revised application dated 16 March 2005. He explained that he approached the task of conducting a search of the agency's file systems afresh, and did not have any regard to pre-existing agency material relating to this case. He explained that he interrogated the RecFind system using various search routines. This search identified 24 'registered files'. He said many files contained more than one volume, so that in total the 24 files comprised 94 'parts'. Based on his previous experience he expected that files previously identified (by Mr Dermody) as relevant to the request would already have been set aside in a special location. This was the case, and there were 57 parts of files held in the repository cabinet of the OCG plus nine folders that did not appear to be agency files as they had no recognisable registration labels. He found that they appeared to contain documents of the Sydney Market Authority. All 57 parts fell within the 94 parts identified by the RecFind search. 25 He first estimated the number of file pages, treating the 57 parts already set aside as the most important. Based on a sample of the size of various files, he concluded that there would be 11,400 pages in the 57 parts (average 200 pages per file). He noted in his evidence that if it transpired, on a sample inspection, that any of the further 37 file parts or the nine folders were relevant to the request, increased time would be required. 26 He explained the methodology he used to form a view as to scale of the work that would be required to process the request in respect of the 57 files. He dealt first with the officer time required for reading the 11,400 documents: 'My perusal of the [sample] file showed that there was a good deal of repetition of documents and I decided that if someone was reading each of the 57 parts, then some of the pages would not need to be read, because they would be duplicates. In addition, it is likely that the reader would become more productive as familiarity increased. I therefore estimated that, overall, it would take only 30 seconds to read each page of the estimated 11,400 pages. This would take 5,700 minutes or 95 hours.' 27 He then dealt with the time needed to compile a schedule of documents, which he put at 95 hours. 28 He turned then to the time required for consultation with external bodies. Based on the pages he read on a sample basis, he formed the view that five bodies external to the agency that were affected by the contents of the sample, and consultation with them might be required. Moreover, he considered, having regard to the nature of the matters dealt with by the files, that there could be up to 30 bodies external to the agency with an interest in being consulted. He outlined the clerical and other steps involved in engaging in consultation, and using an estimate of one hour per consultee, concluded that 30 hours would be involved. 29 Finally, he estimated the time involved in removing, copying and returning affected documents to the files as part of the processing of the request, putting it at 9.5 hours. 30 Consequently his total estimate was 229.5 hours, as it happens a significantly higher estimate than that furnished by Mr Dermody in the first place, 106.75 hours. 31 The Tribunal notes that there is some debate in the Commonwealth and Australian Capital Territory authorities as to whether it is appropriate to take into account anything more than search and retrieval time when making an estimate as to the resource implications of a request; see further, Coe and Chief Minister's Department [2006] ACTAAT 8 at [12], [28]-[30]. 32 This is an important issue in this case, as no emphasis was given in any of the costs estimates to search and retrieval time. The costs estimates referred to subsequent steps, i.e. perusal of documents, preparation of schedule of documents (including presumably nomination of heads of exemption), consultation and clerical steps required to prepare a schedule of documents. These are all matters that can now be taken into account under the Commonwealth Act, which was amended in 1991 in line with Senate Committee recommendations to overcome the effect of the decision in Re Timmins and National Media Liaison Service (1986) 9 ALN 196; see now Freedom of Information Act 1982 (Commonwealth), s 24(2). 33 The ACT legislation has a provision of the original Commonwealth type which gives a general discretion but then goes on to refer, specifically, to the 'number and volume of documents' and 'any difficulty that would exist in identifying, locating or collating the documents within the filing system of the agency': see Freedom of Information Act 1989 (ACT), s 23. The ACT Tribunal accepted as applicable and persuasive the reasoning in Re Timmins, and accordingly excluded from consideration the preparation of a schedule of documents preparatory to decision-making, consulting with third parties and subsequent steps involved in the decision-making process. 34 The NSW provision is expressed in general terms and does not go on to refer to particular activities. In the Tribunal's view it is appropriate to interpret the provision as allowing consideration of the steps referred to by Mr Quinnell, which is in line with the amended Commonwealth provision. 35 In reply to questions asked by the applicant, he rejected the suggestion that he had been given any instructions as to what evidence to give, and stated that he had a good awareness of the FOI Act's requirements having worked as a FOI determination officer. He explained again the methods he used to interrogate the agency's systems in order to obtain an understanding of the scope of the applicant's request. He also outlined the nature of the questions he asked officers in the OCG as to the possible location of papers not captured by his electronic searches. Submissions 36 In its submissions in support of its determination, the agency asserted that the FOI Act did not give an applicant the right to engage in a fishing expedition, by lodging broad and vaguely defined requests. The agency referred to the emphasis found in various provisions of the Act on co-operation between agencies and applicants, one point of which was to promote the making of manageable requests. 37 In the Tribunal's opinion, there are a number of provisions in the Act which support the general thrust of these submissions. For example, the time frame set by the Act for agencies to respond to applications is tight: as soon as practicable, and in any case within 21 days (s 18(3)). If the application does not contain sufficient information to enable the document or documents to which it relates to be identified, the agency shall not refuse to accept an application 'without first taking such steps as are reasonably practicable to assist the applicant to provide such information': s 19(1). The legislation introduces the concept of a request which will require more to process than the amount of the filing fee at s 21, providing the agency with the power to require the payment of an advance deposit before it proceeds any further. The 21 day period ceases running while the advance deposit payment is outstanding: s 21(6). 38 The filing fee is a modest sum ($30), and it is obvious that a request for a relatively small number of documents could give rise to costs in dealing with the application that outweigh that amount. These provisions tend to suggest that the Parliament had in mind as the typical request, for which no additional processing fee should be levied, a relatively modest request. It is also had in mind, it would seem, that most requests should be able to be resolved in under 20 hours, as processing time charges are only to be levied (at $30 per hour) after 20 hours (see Premier's Department Manual, p 29). 39 The applicant submits in reference to this point that all he is asking for is that a schedule of documents be generated, and that he is prepared to meet any reasonable advance deposit requirements or charges, as provided by the charges orders applicable to processing FOI requests. It is not fair, in his submission, that his access application not be actioned to that point. He is prepared to renegotiate his request at that stage once a schedule of documents is generated. 40 I understood the applicant at this point to be alluding to the possibility that he might not press for some of the documents, as he may have some of the items listed via previous applications to other agencies. The applicant saw this approach as manifesting co-operation and consistent with the support given to staged dealing with time-consuming requests, mentioned by the Commonwealth Administrative Appeals Tribunal in Re Eastman and Department of Territories and Local Government (1983) 5 ALD 192 and Re Carver and Department of Prime Minister and Cabinet (1987) 6 AAR 317. 41 The applicant submitted that his request was a 'narrow and focused' one. He noted that the agency had had no difficulty in locating the files and documents affected by his request, in contradistinction to many of the cases where findings of unreasonable diversion had been made. He submitted that his case did not involve anything like the scale of documents and the scale of agency effort dealt with in the cases that had led to adverse findings. He referred to the public interest in release of the documents, and noted that the Premier's Memorandum 2000-11 set out practices to be followed in relation to the disclosure of government contracts without the need for FOI applications. Assessment 42 The Tribunal's task is to appraise the evidence given by the agency on this matter, and then form its own view as to whether the agency has discharged the onus set by s 61 of the FOI Act of establishing that its determination was justified in the circumstances. Here there is a blanket refusal to deal with a request for documents dealing with a matter of public importance. It should not lightly be granted. 43 Provisions similar to s 25(1)(a1) are found in Commonwealth and interstate FOI laws. The words 'substantially and unreasonably' have been the subject of judicial and tribunal comment in those jurisdictions: see for example, Wright v SECV [1998] VCAT 162 per Megay SM, referring in turn to observations on the meaning accorded by Deane J to the word 'substantial' in another statutory context, trade practices - Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Ors (1979-80) 27 ALR 367 at 382. 44 What scale of request may be seen as 'substantially and unreasonably' diverting an agency's resources admits of no ready or precise measure. 45 The need for a balanced approach which takes heed of the impact on the agency, and the extent to which the applicant has sought to revise the request to make it manageable, was addressed by Branson J in Radicic v Australian Postal Commission (1999) 59 ALD 157; [1999] FCA 0574 at [28]: 'The FOI Act is concerned with the provision of access to documents and does not, by its provisions, require the handing over of large portions of the records of a government agency to allow an individual to search them for himself or herself.' 46 The need for a balanced approach is reflected by s 5(2) of the Act, setting out the various means given for implementing the objects of the Act: '(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government' . (emphasis added) 47 In Victoria, it has been affirmed frequently that broad 'fishing' requests in an ill-defined form will not be granted, and that the Act's provisions seeking to contain the impact have as their basis the competing public interest in the efficient administration of government: see, for example, Re Borthwick and University of Melbourne (1985) 1 VAR 33 at 35, decided at a time when a 'voluminous requests' provision did not form part of the Victorian Act; Re Mildenhall and Department of Education, unreptd, VCAT, Lyons SM, 9 April 1999; Coulston v Office of Public Prosecutions [2001] VCAT 10 at [18]; Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 at [46]-[48]. In this Tribunal, see Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [46]. 48 It seems to me that some regard must be had to the degree of public significance of the matters the subject of the request, and anything that is known about the context to which the application belongs. The FOI Act is designed to open to public scrutiny the workings of government. There can, the Tribunal considers, be little doubt that the restructure and ultimate disposal of the Sydney and Flemington Markets by the government was a matter of public importance. The sheer scale of the documents found to be covered by the applicant's request bears this point out. 49 As to question of context, the relevant courts and tribunals have recognised in some of the cases where adverse findings were ultimately made, that the documents the subject of the request related to matters of public importance. Three of these cases stand out - Re SRB and SRC and Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171; Wright v SECV [1998] VCAT 162 and Kelly. SRB and Kelly had as their context class action style litigation relating to catastrophes (in SRB the risk of acquiring Creutzfeldt-Jakob disease; and in Kelly the damage caused to businesses and others by the shut down of gas supplies following an explosion and fire at a major gas plant). 50 While FOI procedures may allow for 'alternative discovery' of documents, the FOI Act expects the activity to be kept within reasonable, manageable bounds. In the Kelly case Federal Court proceedings were already on foot, but the Court had limited discovery. The plaintiffs' solicitor then proceeded to file 321 separate FOI requests of a like type for documents held by various State agencies. The principal agency affected chose to deal with them as a combined, 'global' request, and estimated that the 'global' request covered 2600 files and it would take one officer 14 years to review all 2600 files. The main issue in the case was whether the Victorian Act permitted an agency to treat the 321 separate requests as a single request for the purpose of applying the voluminous requests discretion to refuse to process. The Court of Appeal, reversing the Victorian Civil and Administrative Tribunal, held that this was permissible, utilising a purposive approach to the construction of the Act. Once that ruling was given, it was an easy step to find the request to involve a substantial and unreasonable diversion of resources. 51 The Tribunal acknowledges the applicant's submission as to the comparison between the present case and some of the other cases. This is a case that lies at the lower end of the spectrum of examples provided by reported cases known to the Tribunal where an adverse finding has been made: - a request 'breathtaking in its scope', estimates in the case put in different forms - in terms of lineal metres of filed and archived documents affected by the request (465.18 lineal metres mentioned as to one part of the request), document estimates varied between a million and twenty million ( Wright ) - 16,000 boxes, years of officer time for a team of people (Coulston) - 'tens of thousands of documents' (Allanson and Queensland Tourist & Travel Corporation [1997] QICmr 20; (1997) 4 QAR 219) - 600 policy files (as distinct from documents or pages) relating to Health Department role in the approval of use of pituitary growth hormone (SRB - 'probably the widest ranging series of FOI requests that has ever come before this Tribunal', at [40] ) - 22,000 documents, 18 months of officer time (Meretfield v Department of Human Services [1998] VCAT 299) - 22,000 documents, 24 months of officer time (Re A and Dept of Human Services, VCAT, unreptd, Davis PM, 4 November 1998) - 67,000 pages, 15-30 weeks of officer time (Re Chapman and Victoria Parks, VCAT, unreptd, Ball SM, 6 December 1999) 52 A case that fell clearly on the other side was Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35, where the officer processing time was given as nine hours in respect of a single document, plus unenumerated time for consultation with persons named in the document who might be affected by release. 53 The agency approached the calculation of the resource impact, in part by basing its assessment of its capacity to deal with the request on the resources provided by the FOI unit officer and the four OCG officers. It seems to me that there will be requests affecting agencies from time to time that may require some assistance to be provided so as to take the pressure off the line area affected. 54 The Tribunal is generally familiar, through the many cases that have reached the Tribunal involving the applicant's requests, with the scale of the work done by the government in relation to the disposal of the Sydney Markets. At different times, very many officers were involved and substantial resources were consumed by the exercise. The substantive task of identifying the documents affected by an FOI application, and making (at least the initial) assessments of what material is to be copied and released belongs to the line area of the agency. In this instance, despite the apparent breadth of its responsibilities, the OCG only has four officers. On Mr Dermody's original estimate his unit would have lost one of its officers for 3 weeks to deal with the request; on Mr Quinnell's estimate it is more like one officer for 6 weeks, or two officers each for 3 weeks. 55 It might be said that the express terms of s 25(1)(a1) require consideration to be given to the impact on the agency's resources. It might be said that the agency, viewed as a whole, has adequate resources to deal with a big request (last Annual Report p 53 shows 416 employees and a salaries and related budget of $61m). As to this point, I agree with the final part of comments made on this matter by the Commonwealth AAT in SRB at 179 that it is not intended that all the resources of a department of State be taken into account when assessing whether a demand would have an undue impact, but rather what is to be considered is 'the resources reasonably required to deal with an FOI application with attendance to other priorities'. 56 However, I disagree with an earlier comment from the same part of its reasons where the AAT states that the resources to be considered are merely 'the resources which the respondent had at the time the request was lodged or had as at the date of hearing', and the further comment that 'It cannot mean resources which the respondent might be able to obtain or even resources constituted by the filling of establishment resources'. 57 I share the concern expressed by Megay SM in Meretfield: 'Although I am not entirely in agreement with the learned members' proposition that the resources of an agency do not mean the resources that the agency might be able to obtain, I disagree only insofar as their reasoning, viewed in isolation, might provide agencies with a readymade excuse for non-compliance with large requests based solely on the absence of sufficient staff numbers, rather than on a balanced consideration of the reasonableness of the application. Each application must be considered in its particular factual context balanced against the objects of the legislation.' 58 The same point was made, pithily, many years before by Rowlands P in Re Borthwick at 36: 'This is not to say that the legislature's clear resolve may be easily thwarted by easily made staff shortage pleas.' 59 The agency arrangements may be threadbare or token, yet the agency might be quite a large one or one with pre-eminent responsibilities in the functioning of government, as here. An agency could seek to avoid the Act by managing its resources in a way that leaves no effective capacity to deal with anything more than requests of a very narrow compass. This would defeat, as I see it, the very real purpose of the Act in providing the community with a mechanism that enables to be exposed to public view complex areas of decision-making. 60 Given its role in the affairs of the State, this agency - the Premier's Department - can be expected to have substantial bodies of documents that involve important areas of government activity. An agency of this kind should not be given, as I see it, the degree of liberality in relying on s 25(1)(a1) that might be appropriate to a very small statutory body with a small staff complement, and consequently a very limited capacity to deal with FOI requests of scale (an example of the latter perhaps being provided by the case of Allanson). 61 According to the Annual Report, the unit received 59 requests of which two were refused on the diversion of resources ground (p 24); 14 requiring more than 40 hours work. I do not accept the assumption made by the agency's evidence that the size of the line area unit provides a basis against which the ability of the agency to meet the request should necessarily be measured. 62 As I see it, the factors that are relevant to an assessment of the kind required by this case, include: (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. 63 This is, of course, not intended, in any way, to be an exhaustive list of possible considerations. 64 I will refer to them separately: (a) the terms of the request, especially whether it is of a global kind or generally expressed request · It is a wide request of global kind, not containing any time boundaries nor category boundaries, and essentially asking for access to all internal documents bearing on a particularised subject-matter. It is a broad request, but I would not go so far as to describe it as 'perverse' or 'fishing'. (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, the evidence is that it did · The subject matter is one of public importance, involving, in essence, the circumstances leading to the withdrawal of government from a field of activity for which it had ultimate responsibility for generations, because of its ownership of the land and the conduct of the markets through a statutory authority. (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 · There is a real issue raised here as to the capacity of the agency to deal with a request of the present scale. As my earlier comments suggest, I have some doubt as to whether the agency has adequate arrangements in place to meet the request relating to a matter of public importance, given its central place in the making of government decisions and the taking of government action of importance, and the likelihood that from time to time it will receive complex, multi-document requests. (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 · The evidence is accepted that on a best estimate at this stage the number of documents affected is 11,400 and the officer time 229 hours. In this instance, the Tribunal accepts Mr Quinnell's higher estimate. There is also the Tribunal thinks a real possibility that the estimate (even though it is double Mr Dermody's estimate) may be exceeded because of what may be found in the additional 57 files. (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 · The applicant did not, in my view, take a co-operative approach. The second request was not, I think, in any significant way different from the first request. (f) the time lines binding on the agency · It would not have been possible, as I see it, for the agency to comply with this request in 21 days or any period approximating to 21 days. (g) whether beyond 40 hours' processing time, and to what degree · The time allocation, 229 hours for the first stage of the ultimate task, is well in excess of 40 hours. (h) degree of certainty that can be attached to estimate · I think there is a real possibility in this case that the estimate and number of documents would be exceeded (57 file parts remained to be assessed). (i) repeat applications · This point was not raised in this case. 65 Weighing factors (a) to (h), and the other matters mentioned, I am satisfied in the context of this case that the diversion of resources would have been 'substantial' and 'unreasonable'. While this case is not at the worse end of the spectrum of examples of voluminous requests found in some of the case, it is not necessary that the extent of the 'unreasonableness' be overwhelming: see Prasad v Minister for Immigration 65 ALR 549 at 561 per Wilcox J). 66 In my view, mindful of the need for caution, the agency's objection is made out. The applicant will have to make any further request(s) in a more precise and focused form. Order 1. Application dismissed. 2. Determination under review affirmed.

Cianfrano v Director General, Premier's Department

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