Covid Safe Schools Inc v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2024-01-31

Introduction

This is an application by Covid Safe Schools Inc (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of a 'new decision' of the delegate of the Secretary, Department of Education (the delegate, the agency) made on 5 May 2023 in response to an access application it originally made to the agency on 23 September 2022 (the access application, the reviewable decision).
By the reviewable decision the delegate decided to provide the applicant with some of the information sought by the access application, to refuse access other information on the ground that there was an overriding public interest against its disclosure, and that some of the information sought was already publicly available to the applicant. The delegate otherwise determined that the information sought by the applicant was not held by the agency.
This application was originally made to the Tribunal on 8 February 2023; however, this administrative review concerns the applicant's decision to proceed with the application insofar as it concerns two items (items 1 and 4(d)) of the new decision, which was communicated to the agency and the Registrar on 23 May 2023 (the application).
For the reasons explained following I have decided that the agency's reconsidered decisions in relation to items 1 and 4(d) of the applicant's further amended access application ought to be set aside and those items of the access application remitted to the agency for further consideration in accordance with these reasons. In short summary, I am not satisfied that the agency has discharged its onus of establishing that it has conducted reasonable searches for government information that is responsive to those items of the access application.

Procedural history

The application first came before the Tribunal, differently constituted, for a Case Conference on 27 February 2023. At that time the reviewable decision that was before the Tribunal was a deemed refusal of the agency to provide the applicant with information that was responsive to its access application which arose because the agency had failed determine the request with the required period: see ss 57 and 63 of the Act.
At that listing the applicant agreed to amend the application by deleting from it requests for information contained in paragraphs 2(a) and (b), and 8 of its amended access application (the further amended access application).
The access application was otherwise remitted to the agency for reconsideration. In this respect the Tribunal directed the agency to notify the applicant and the Tribunal of its new decision and reasons for decision in relation to the remitted application by 31 March 2023. The applicant was directed to notify the agency and the Tribunal by 21 April 2023 if it intended to withdraw or proceed with its application for administrative review in light of the new decision, and if the administrative review was to proceed, what aspects of the new decision were in contention. The application was otherwise listed for directions on 9 May 2023.
The agency did not comply with the Tribunal's direction requiring it to make a new decision by 31 March 2023. This resulted in the applicant making a complaint to the Registrar about this non-compliance. In response to that complaint, the application was listed before a Tribunal, differently constituted, for Directions on 26 April 2023. At that Directions hearing, an extension of time was granted to the agency to 1 May 2023 to make a new decision and to notify the applicant and the Tribunal of that decision and the reasons for that decision. The applicant was directed to notify the agency and the Tribunal if it withdrew or wished to proceed with its administrative review application by 22 May 2023. The Directions hearing scheduled for 9 May 2023 was vacated and the proceeding were adjourned to a Directions Hearing on 13 June 2023.
The agency provided its new decision in relation to the further amended access application to the applicant and to the Registrar on 5 May 2023.
By email to the Registrar, copied to the agency's representative, on 23 May 2023, the applicant's representative advised that the applicant wished to proceed with its' administrative review application. That notification attached a document which set out those elements of the new decision in relation to which administrative review was sought (being the agency's decision in relation to items 1, 3 and 4 of the further amended access application).
A Directions hearing was conducted by the Tribunal, differently constituted, on 13 June 2023. That Directions hearing was adjourned to 11 July 2023 by consent on the basis that the parties were involved in discussions that had the potential to resolve the dispute.
The dispute was not resolved. At the Directions hearing on 11 July 2023 the Tribunal made directions for the filing and exchange of the evidence and submissions the parties intended to rely upon at the final hearing. The application was listed for hearing on 11 October 2023.
On 27 September 2023 the agency's representative wrote to the Registrar, with the consent of the applicant's representative, proposing that the Tribunal make orders by consent vacating the hearing set down for 11 October 2023, and dispensing with a hearing of the application in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). In this respect it was jointly submitted that the issues in the proceeding had become 'extremely confined", and that the parties had addressed those issues in their written submissions. It was further submitted that no witnesses were required for cross-examination and that the parties' positions were adequately expressed in writing.
The parties' application for these orders was referred to me in Chambers. On 3 October 2023 I made orders by consent vacating the hearing listed for 11 October 2023 and dispensing with a hearing of the application. I otherwise reserved my decision in the application.

Material considered

In reaching my determination I have considered the following material:

Applicant 1. Administrative review application dated 8 February 2023 and annexure, 2. Applicant's submissions in reply filed on 22 September 2023,

Agency 1. documents filed by the agency under cover of letter dated 27 February 2023. 2. Affidavit of Jenni Pendergast, Manager, Right to Access, dated 18 September 2023 and annexures, being: ● a copy of the applicant's access application dated 23 September 2022 (Annexure "A"), ● a Notice of Decision (the 'new decision') dated 5 May 2023 and annexures of the information disclosed and redacted in accordance with that decision (Annexure "B"), ● a copy of the applicant's objections to the new decision dated 23 May 2023 (Annexure "C"), ● a copy of correspondence from the agency's representative to the applicant's representative concerning the new decision dated 10 July 2023 (Annexure "D"), ● an email to the applicant's representative from Simone Walker, Group Deputy Secretary, School Improvement and Education Reform Group dated 29 September 2022 (Annexure "E"), ● a copy of a "CO2 Data Loggers Checklist" dated "14/12" and a NSW Education School Infrastructure, School Infrastructure NSW, Classroom Air Quality Monitoring document (Annexure "F"). 1. Submissions for the respondent dated 19 September 2023, 2. Submissions for the respondent in reply filed on 27 September 2023

The access application

On 23 September 2022 the applicant lodged an access application with the agency. In an attachment to that application the applicant set out in 8 numbered paragraphs (items 1 to 8) the government information to which access was sought.
By letter to the applicant dated 21 October 2022 the delegate of the agency notified it of receipt of the access application and the required application fee on 23 September 2022. The delegate also notified the applicant that the application had been deemed a valid access application, which therefore had to be decided within 20 working days of receipt on or before 24 October 2022, subject to the operation of extensions of time that may arise.
However, by the same letter, the delegate requested the applicant to "rescope" or amend, the access application, in particular by removing items 2 and 8, on the basis that in its present form processing of it would result in an unreasonable and substantial diversion of agency resources. In this respect the agency's preliminary estimate of the processing time required to deal with the application was over 2240 hours. The applicant was given until 18 November 2022 to respond to this request. The delegate notified the applicant that the decision period would be suspended until a response was received, noting that only 1 day remained within the decision period (this appears to be an error, but nothing now turns on this).
The applicant amended its application on 1 November 2022 by omitting items 2(b) and 8 as proposed by the agency. However, the applicant pressed item 2(a) and all other items of its original access application.
By letter to the applicant dated 18 January 2023 the agency issued a "notice of deemed" refusal in relation to the access application because it had been unable to decide the application by 2 November 2022. In this respect the delegate advised that records had not been received by the agency's Right of Access unit from operational units by that date. The delegate also stated that School Infrastructure NSW had advised that even after the amendment of the access application, processing of it would still have required an unreasonable and substantial diversion of resources due to the scope of item 2(a).
The applicant sought administrative review of the agency's deemed refusal decision by application to NCAT filed on 8 February 2023.
As set out above, at the Case Conference conducted in these proceedings on 27 February 2023, the applicant agreed to further amend its application. In this respect it agreed to omit item 2(a) as well as items 2(b) and 8. It was this further amended application that was remitted for reconsideration by the agency.
The access application thus became a request for the following government information which the applicant claimed was held by the agency: 1. The DoE says at https://education.nsw.gov.ay/covid-19/advice-for-families/ventilation "The department's ventilation and asset use recommendations are informed by: (a) NSW Health advice (b) expert advice from the Doherty Institute (c) expert advice from the World Health Organisation. Please provide copies of the aforementioned advice including any DoE briefing or scoping documents provided to the advisors. … 3. At a webinar hosted by the P&C on 21 Oct 2021, Anthony Manning, Chief Executive, School Infrastructure said the Department is collecting data on classroom C02 levels through the Cooler Classrooms Project and that "We're happy to make that data available". Please provide that data and all information about how and why that data was collected, any reports made or conclusions drawn from this trial, or actions taken as a result. 4. According to Suzie Matthews (P&C webinar 27/07/2022) the DoE has supplied 20,000 air purifiers to schools this year. Please provide information including a) Model(s) of purifiers supplied b) names of schools supplied and numbers supplied to each c) cost of purchase d) policy, advice or guidance documents used as a basis for determining allocation of air purifiers to each school e) training materials concerning correct placement and usage of the air purifiers f) proposed or implemented assessment of effect of air purifiers on health of students or teachers 5. Please provide information about efforts to gather data to study the effectiveness of HEPA filters in COVID mitigation in classrooms terms 1-3 2022, and such data collected and discussion of the significance of the data. 6. The document "SINSW - COOLER CLASSROOMS PROGRAM STANDARD PROJECT SPECIFICATION" Rev F par 9.3 requires that the outdoor air fan stops if the temperature is less than 18 deg C or more than 28 deg C. Please provide any documents concerning the inclusion of this requirement in the specification or discussing the effect of stopping ventilation when temperatures are outside 18-28 deg C. 7. On 20 April 2020 the Department published an announcement entitled "More natural air ventilation systems for schools" https://education.nsw.gov.au/news/latest-news/more-natural-air-ventilation-systems-for-schools. Please provide a) specifications of these systems including any associated control systems b) documents concerning the installation requirements for these systems c) list of schools where these have been installed d) any assessment of performance of these systems in situ.
In its decision in relation to the remitted further amended application dated 5 May 2023 the agency decided with respect to each item of the application as follows. I note that the decision summarised in the table at pages 5 and 6 of the agency's notice of decision refers throughout to s 59, rather than s 58, in error. I shall refer here to s 58: 1. Item 1: pursuant to s 58(1)(b) of the Act, that this information not held by the agency and/or pursuant to s 58(1)(c) of the Act that this is already available to the applicant, 2. Item 3: pursuant to s 58(1)(a) of the Act, to provide access to this information, 3. Item 4: pursuant to s 58(1)(a) of the Act, to provide access to the information sought by item 4(a), with respect to item 4(b) (referred to as "c" in the decision in error) to provide access to the information held (being the names of the schools supplied with purifiers), and otherwise, pursuant to s 58(1)(b) that this information was not held (being the number of purifiers supplied to each school), with respect to item 4(c), pursuant to s 58(1)(d) of the Act to refuse to provide access to the information sought on the basis that there was an overriding public interest against the disclosure of that information, with respect to item 4(d), pursuant to s 58(1)(b) of the Act that this information was not held by the agency, with respect to item 4(e), pursuant to s 58(1)(a) of the Act, to provide access to this information, with respect to item 4(f), pursuant to s 58(1)(b) of the Act that this information was not held by the agency, 1. Item 5. pursuant to s 58(1)(b) of the Act, that this information was not held by the agency, 2. Item 6. pursuant to s 58(1)(b) of the Act, that this information was not held by the agency, 3. Item 7. with respect to item 7(a) to (c), pursuant to s 58(1)(a) to provide access to this information, with respect to item 7(d), pursuant to s 58(1)(d), that this information was not held by the agency.
On 23 May 2023 the applicant notified the agency that it continued to dispute the agency's decision insofar as it concerned items 1, 3 and 4(c) and (d). It supplied the agency with a document which explained its objections. That document states, relevantly: … ITEM 1 … 3. DoE says "This information is publicly available because the advice referred to in those documents is that which is publicly available. Please direct the Applicant to the particular documents which include the advice which informed the DoE's recommendations. Otherwise we will have no option but to challenge your claim and require you to prove it. 4. DoE says that they do not hold any "briefing or scoping documents provided to the advisors". Does the DoE claim that their recommendations were developed without asking any of the three organisations cited any questions or making any requests for information, i.e. it was a completely passive, one way process? If not, the searches appear to be inadequate. The people who developed the policies must be able to locate the briefing or scoping documents, and if they have been lost the DoE can request them from the people to whom they were addressed. ITEM 3 … 6. The DoE has not provided any documents concerning "how and why the data was collected". It is not possible that this large data gathering project was undertaken without any discussion as to why it was conducted or how it would be conducted. Please remedy this. 7. Please confirm that not even one document was created after the data was gathered reporting on the process, or the outcome, or the reason why there has been no analysis or conclusion. ITEM 4 … 8. The DoE refused (c) because "I have accorded significant weight to the public interest considerations against disclosure that apply with respect to information relating to the pricing of air purifying units, due to the likely prejudice that would arise to both third party contractors and the Department from the disclosure of this information". However, the Applicant did not ask for "information relating to the pricing", just the cost of purchase (in total). This would not identify individual suppliers and would not prejudice anyone. Please provide that cost information to satisfy 4(c). 9. The DoE says in relation to 4(d): "Not held. There is no policy document that determines the allocation of ventilation systems as between schools". This is not plausible. There are 150,000 classrooms in NSW and unless 150,000 air purifiers were supplied, there must have been some policy as to how many each school received. 10. Furthermore, this Principal Information Pack: https://education.nsw.gov.au/content/dam/main-education/en/home/school-infrastructure-nsw/asset-management/Ventilation_in_schools_Principal_infromation_pack.pdf says "Some schools are being supplied with air purifiers for use in specific spaces. These spaces were identified during the recent inspection with a local Asset Services Officer, following review of the school's ventilation audit report". 11. Accordingly there must have been some documents setting out how "these spaces were identified". 12. Please provide documents answering Item 4(d).
This resulted in further searches being undertaken by the agency and in correspondence from the agency's representative to the applicant's representative on 10 July 2023.
The additional searches resulted in the identification of a further document which was responsive to item 3 of the further amended access application. The agency determined to partially provide access to that document pursuant to s 58(1)(a) and to otherwise delete irrelevant information from it in accordance with s 74 of the Act. By implication, this constituted an amendment to the agency's decision of 5 May 2023 in relation to the further amended access application. This amendment to the decision resolved the dispute insofar as it concerned item 3.
With respect to item 4(c) the further explanation provided to the applicant by the agency's representative was to the effect that the aggregate information sought was not contained in any document held by the agency at the time that the access application was made and could only be created in a new document which the agency declined to do on the basis that this information was commercial-in-confidence. The applicant does not further contest the agency's decision with respect to item 4(c).
With respect to items 1 and 4(d) the agency's representative states in his letter to the applicant of 10 July 2023: Item 1 I confirm that the Department has not retained any copies of the documents referred to in that item. Whilst it would be possible to independently research those documents from what is publicly available, that would not give you an accurate indication of the information that the Department holds for the purposes of the GIPA Act. As the documents were not commissioned, owned or published by the Department, that may be the reason that copies were not retained. I also confirm that the Department has not identified any briefing or scoping documents directed to the publicly available material. Those instructions are based on searches undertaken by both Schools Infrastructure and also the documentation and archival folders of the former COVID-19 Crisis Taskforce. … Item 4 … I confirm that there is no policy directed to the provision of air purifiers to school. … As to the reference "spaces were identified during the recent inspection with a local Asset Services Officer, following review of the school's ventilation audit report", I have confirmed that there are no policy documents directed to that process of allocation. Further, whilst spaces were identified during the audit as requiring air purifiers in specific places, that information was entered directly into the department's Routine Planned Maintenance system on each school site. The Department has confirmed that there was no policy document governing how those spaces were identified in the course of that audit.
The applicant does not accept the agency's decision with respect to items 1 and 4(d) of its further amended access application. It is the agency's decision with respect to those two items that is the subject of this administrative review.

Material facts

The agency's new decision of 5 May 2023 provides very limited information in relation to the searches that it undertook to identify information responsive to items 1 and 4(d) of the further amended access request. In this respect, it is stated: 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. All relevant systems were searched by the area holding the information as outlined below. … Relevant information Records identified as relevant to your access application have been received from the following areas of the department: Schools infrastructure and the Cooler Classrooms Program. …
In her Affidavit filed on 19 September 2023 Mr Jenni Prendegast states that she is the Manager, Right to Access in the agency's Legal Services Directorate and that she has held this position since 2019. She gives evidence in relation to the searches undertaken by the agency for information that was responsive to the applicant's access request, relevantly, as follows: Searches 12. Dealing with the access application has involved searches of the following areas to the department: (a) Crisis Response and Recovery Unit (including in relation to the archives of the former COVID-19 and Crisis Taskforce) which I deal with below at paragraphs [13] - [15]. (b) Schools Infrastructure NSW, in relation to various items of the access application, which I deal with below and paragraphs [24] - [33]. Sitting within Schools Infrastructure is the Cooler Classrooms project, which conducted searches principally relating to the carbon dioxide project. I deal with that area below at [16] - [23]. Searches by Crisis Response and Recovery Unit 13. On 5 July 2023, a Principal Policy Officer, Crisis Response & Recovery Unit confirmed the following: (a) The COVID-19 and Crisis Taskforce was wound down at the end of 2022. The Crisis Response and Recovery was established in January this year [2023] as an entirely new unit within the Health, Safety and Staff Wellbeing directorate. There was a handover of documentation and archival material from the former Taskforce to the new Crisis Response and Recovery unit when it was set up. (b) The Officer has searched the documentation and archival folders from the former COVID-19 and Crisis Taskforce and was not able to locate any saved copies of the advice referred to in the access application - being advice from NSW Health, the Doherty Institute and the World Health Organisation. (c) The officer has the same understanding as that expressed by Schools Infrastructure (see below at [25]), being that the advice referred to is advice that is publicly available. (d) The officer added that, as the Department did not own, commission or publish the advice, and was referring to publicly available information on the internet, this may be the reason why copies were not retained by Schools Infrastructure NSW or the former Taskforce. 14. The Principal Policy Officer referred to documentation which might assist in dealing with the access application: (a) independent advice provided by Steensen Varming to Schools Infrastructure NSW on 7 October 2021 (which is publicly available). (b) Fact sheet prepared by Schools Infrastructure NSW (which has been released to Mr Vogel). (c) Principal information pack prepared by Schools Infrastructure NSW (which has been released to Mr Vogel). (d) correspondence from the Department to Mr Vogel dated 22 September 2022 which provides a link to the Steenson Varming advice referred to above at paragraph [(a)]. … Searches by Cooler Classrooms … Balance of items directed to Schools Infrastructure … Item 1 25. As to item 1 of the access application, I am advised by Brittany Kenaly and Vanessa Turner (who have conducted searches of the electronic and physical records of Schools Infrastructure, as well as consulted with the Group Director - Asset Management) that there are no retained advice documents from NSW Health, the WHO, and the Doherty Institute which are the documents referred to in item 1 of the access application. Their understanding is that the documents referred to are the publicly available documents published by those entities. Item 4 26. As to each sub-item of item 4 of the access application, Schools Infrastructure have advised as follows: … (d) Policy advice or guidance documents for allocation of air purifiers to each school - There is no policy advice or guidance for the allocation of air purifiers. This issue is dealt with in further detail below at [30] - [32]. [sic, [27] to [29]]. 27. In relation to item 4(d) … Schools Infrastructure have conducted searches for any such policy document. The practice that was adopted was to provide purifiers on request to schools, and that there are no rules prescribing the number that each school is to be allocated. Their understanding is that the practice was developed in that way to efficiently transmit as many purifiers as possible to schools that need them. 28. I note that, in Mr Vogel's response to the decision dated 23 May 2023, he says "Furthermore, this Principal Information Pack …". 29. In light of this comment, Schools Infrastructure were asked to conduct confirmatory searches as to whether any further information was held. Schools Infrastructure confirmed that, whilst spaces were identified during the audit, there is no policy document which governs how such spaces were to be identified. ..

Applicant

With respect to Item 1 of its further amended access application the applicant contends, in effect, that the agency has failed to discharge its onus of establishing that information that falls within the scope of the item is publicly available. That is because the agency has not identified the specific information encompassed by that item, and where 'in public' it is to be found, despite its specific request that the agency do so. The applicant submits that a generalised statement that unspecified information is publicly available to the applicant is not sufficient to discharge the agency's onus of establishing that government information is publicly available.
With respect to item 4(d) of its access application the applicant contends that the agency has failed to identify and provide access to government information that falls within the scope of that item, being information concerning an audit which identified spaces that required air purifiers and the schools that needed them. The applicant contends that such information is squarely within the scope of item 4(d) of its access application.
The applicant submits the agency's decision with respect to items 1 and 4(d) of the further amended access application should set aside and remitted to the agency for reconsideration with directions. With respect to item 1, it submits that the agency should be directed to identify the specific information that is responsive to item 1 that is publicly available and where it can be found. With respect to item 4(d), the applicant submits that the Tribunal should direct that any government information relating to the air purifier audit falls with the scope of that item and that access must be provided to it in accordance with Parts 1 to 4 of the GIPA Act.

Agency

In relation to item 1 of the access application, the agency now submits that the correct and preferable decision is that information that is responsive to this element of the further amended access application is not held by the agency (s 58(1)(b) of the Act). In this respect, the agency does not now argue that information within the scope of that item "is necessarily available to the applicant". It is submitted that the information referred to in item 1 was publicly available at the time and that this explains why copies were not retained or scoping or briefing documents prepared. Nevertheless, it is submitted that "in practical terms" the reviewable decision does facilitate the applicant identifying the documents that are referred to item 1 because: 5. … For example, NSW Health has published a page "Ventilation: a guide to reducing risk of COVID-19 transmission" [weblink provided in footnote]. The World Health Organisation has published a "Roadmap to improve and ensure good indoor ventilation in the context of COVID-19" [weblink provided in footnote]. Those may well be the documents referred to in the press release. However, it would be artificial for the Department to decide that those are the documents - because its searches did not identify them. The GIPA Act is only directed to information which is held by agencies. With respect to the s 58(1)(b), the agency contends that it has conducted reasonable searches for information that is responsive to item 1 of the further amended access request and nothing has been identified.
With respect to item 4(d), the agency submits that its' decision that it does not hold information that is responsive to this element of the access application is the correct and preferable decision which ought to be affirmed by the Tribunal. In this respect it submits that its repeated searches for information that falls within the scope of this item have been reasonable. With respect to the applicant's submission that documents related to the purifier audit fall within the scope of item 4(d), the agency submits: 7. … that is not the case. The item seeks "policy, advice or guidance documents", not documents implementing any particular requests for purifiers. Schools Infrastructure has advised that there is no policy document directed to the identification of spaces requiring purifiers in the context of the audit, and that when spaces were identified, the information was entered directly into the Routine Planned Maintenance System. The access application does not seek information relating to specific requests for purifiers which would have been entered into that maintenance system. Such requests are not policy, advice or guidance documents.

Jurisdiction

Section 100 of the GIPA Act provides that a person who is aggrieved by a decision that is a reviewable decision under the GIPA Act may apply to the Tribunal for an administrative review of that decision under s 55 of the ADR Act. Section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act. They include, relevantly: 80. Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - … (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, …
Section 101(1) of the GIPA Act provides, relevantly, that an application for administrative review of a decision specified in s 100 of that Act must be made within 40 working days after notice of the decision to which the review relates is given to the applicant. The original application in this proceeding was filed on 8 February 2023 in response to a Notice of Deemed Refusal issued by the agency on 18 January 2023. The application was thus made within the time permitted.
The Tribunal's role in the conduct of an administrative review is prescribed in s 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) the applicable written or unwritten law (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
A "correct" decision is one that is rightly made, while preferable is apt to refer to a decision involving discretionary considerations: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 at [140] per Kiefel J

Applicable law

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states, relevantly: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: … (b) by giving members of the public an enforceable right to access government information, and …
This object is amplified with a statutory command, contained in section 3(2), which provides: (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information.
Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information: 5 Presumption in favour of disclosure of Government Information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1): 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. …
Part 4, Division 3 of the Act sets out the process according to which an agency is to deal with an access application. Section 53 in that Division sets out the scope of an agency's obligation to search for information that falls within the scope of an access application. It provides: 53 Searches for information held by the 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 division of the agency's resources.
Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides: 58. How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that information is not held by the agency, (c) deciding that the information is already available to the applicant (see section 59), or …
With respect to s 58(1)(c), s 59 provides: 59. Decision that information already available to applicant (1) An agency can decide that information is already available to an applicant only if the information is: (a) made publicly available by the agency or some other agency in accordance with a legislative instrument other than this Act, whether or not availability of the information is by inspection only and whether or not availability is subject to a charge, or (b) available to the applicant from, or for inspection at, the agency free of charge in accordance with this Act or the agency's policies and practices, or (c) contained in a document that is usually available for purchase, or (d) available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant's possession, or (e) publicly available on a website, or (f) available to the applicant by way of a standing rule or order of the Legislative Council or Legislative Assembly. (2) An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate why the agency believes the information is already available to the applicant and, if necessary, how the information can be accessed by the applicant.
Division 4 of Part 5 concerns administrative review of decisions by NCAT. Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.

Consideration

To determine the outcome of this application the Tribunal must pose and answer the following questions:

With respect to item 1 1. Has the agency discharged the onus imposed on it by s 105 of the Act of establishing that the information referred to is publicly available to the applicant? 2. If the answer to (a) is "no" should the agency's decision insofar as it relies on s 58(1)(c) of the Act be set aside? 3. If the answer to (b) is "yes" should the Tribunal: 1. substitute for that decision, a decision that information within the scope of item 1 is not held by the agency (s 58(1)(b) of the Act)? or 2. remit this item of the further amended access application to the agency for reconsideration? 1. If the answer is that set out at (c)(ii) what directions or recommendations, if any, should be given to the agency in relation to its reconsideration of this item of the further amended access application?

With respect to item 4(d) 1. What general character of government information reasonably falls within the description "policy, advice, or guidance documents used as a basis for determining allocation or air purifiers to each school"? 2. Was the agency's characterisation of government information that falls within the scope of that description, correct? 3. Having regard to the answer to (f), and generally, has the agency discharged the onus imposed by s 105 of the Act of establishing that it has conducted reasonable searches for information that falls within the scope of item 4(d) of the further amended access application? 4. If the answer to (g) is "no" should this aspect of the reviewable decision be set aside and item 4(d) of the further amended access application remitted to the agency for reconsideration? 5. If the answer to (h) is "yes" what directions or recommendations, if any, should be given to the agency in relation to its' reconsideration of this item of the further amended access application?

Item 1 of the further amended access request

The agency's decision pursuant to s 58(1)(c) of the Act that the NSW Health, Doherty Institute, and World Health Organisation "advice" used to inform its ventilation and asset use recommendations are publicly available to the applicant is clearly not a correct or preferable decision. Such information would be publicly available to the applicant only if it was available by one of the means specified in s 59(1) of the Act. There is no arguable basis in the material before me that such information is available to the applicant by any of the means specified in s 59(1)(a),(b), (d) or (f). Nor could I conclude that it is available to the applicant by the means specified by s 59(1)(c) or (e). That is because the agency has not specifically identified this information by title or other unique descriptor and where it is available for purchase or on a website.
The agency's case is, in substance, that it does not now know precisely what advice is referred to in the agency statement excerpted by the applicant in item 1. If it does not know what this advice is, the applicant can hardly be expected to. In this respect the agency's submission to the effect that, in "practical terms" the reviewable decision does facilitate the applicant identifying these documents must be rejected. The excerpt references specific advice in a definitive, not general, sense. An access application cannot be determined by reference to s 58(1)(c) leaving the access applicant to guess or speculate as to what the publicly available material is, or by asserting that broadly similar information is publicly available.
Having regard to this, the real issue with respect to item 1 is whether the correct and preferrable decision is a decision pursuant to s 58(1)(b) of the Act that the "advice" and any related briefing and scoping documents are not held by the agency. That turns on a question of whether the agency has discharged its onus of establishing that the searches it has conducted for information that falls within the scope of item 1 have been reasonable.
In this respect, in Klaric v Commissioner for Police [2020] NSWCATAP 153 an Appeal Panel of the Tribunal considered the extent of the Tribunal's power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]: 33. The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search.
The Appeal Panel in Wojciechowski v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowski) concurred with that statement, but added at [41]: 41. … Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". … stating at [42] to [44]: 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies with the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 44. 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.
As I have said elsewhere on a number of occasions, s 53 imposes a "reasonableness" standard in relation to the searches required to be undertaken by an agency, rather than any absolute or strict standard. Such searches must therefore be "logical", "sensible", "appropriate" and "fair" but are not required to be "extreme" or "excessive" (to illustrate using synonyms and antonyms. The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency's obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative, or belligerent observer.
It thus falls to the agency to establish pursuant to s 105 of the Act that it has carried out searches for government information within the scope of the access application in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant's section 9(1) right to government information.
The notice of decision issued to the applicant on 5 May provides scant information about the searches conducted by the agency for information that falls within the scope of item 1. It merely states that the agency retains information electronically in shared drives and in an electronic document management system, in physical files, and in individuals' email accounts and that these were searched in the Schools Infrastructure and Cooler Classroom Program units of the agency. The decision does not indicate who conducted the searches, or anything about the methodology of the search, including the search terms utilised.
In her Affidavit filed on 19 September 2023 Ms Prendegast provides additional information about the searches conducted. She states that searches were also conducted in the Crisis Response Recovery unit, which included the records of the former COVID-19 and Crisis Taskforce which appears to have been the agency unit responsible for the creation of the agency document referred to in item 1 of the access application. Both those units are/were situated in the agency's Health, Safety and Staff Wellbeing Directorate.
Ms Prendegast states that a Principal Policy Officer searched the documentation and archival folders from the COVID-19 and Crisis Taskforce and was not able to locate any saved copies of the advice referred to in item 1 of the access application (and by implication, any related document). It is further stated that this officer advised Ms Prendegast of their "understanding" that the advice referred to is publicly available and created externally to the agency, which may be the reason it was not retained. That officer also supplied Ms Prendegast with a list of documents "might assist with dealing with the access application", being documents that are already available to the applicant's representative. That officer is not identified by name, and no information is provided about the methodology they used to structure their search. There is no specific information as to the foundation for that officer's belief that the advice is publicly available. In this respect, I note that the agency has not provided a statement from that officer.
Ms Prendegast also states that two named officers assigned to the Schools Infrastructure unit conducted searches of the electronic and physical records of that unit, as well as consulted with the Group-Director, Asset Management, but were not able to identify any records within the scope of item 1. She states that those two officers were also of the "understanding" that the advice referred to in the agency communication in item 1 were publicly available documents published by NSW Health, the Doherty Institute, and the World Health Organisation. However, again, no information is provided about the methodology of the searches conducted or the specific foundation for those officers' beliefs about the character and availability of the 'advice' documents referred to in item 1 of the access application. The agency has not provided any statement from either officer going to these issues.
The agency's case in relation to this item relies to a significant extent on the assertion that the advice documents referred to in item 1 were "not commissioned, owned or published" by the agency, which it contends assists in explaining why that advice has not been retained in the agency's records. That proposition is not sufficiently explained in the material before me. Ms Prendegast gives no evidence as to how this conclusion is reached.
In my view it would be open to reasonable person reading the agency communication in which this 'advice' is referred to assume that the agency obtained specific advice from the organisations mentioned in the development of the agency's ventilation and asset use recommendations. The applicant's access request appears to be substantially founded on such an assumption because it seeks access to the agency 'briefing or scoping documents' provided to NSW Health, the Doherty Institute, and World Health Organisation in order to obtain the advice referred to. In my view, if that assumption is incorrect, the grounds upon which this is a misconception must be laid bare by the agency.
It is also put to me in the agency's submissions that the context of the COVID-19 Pandemic helps to explain why the advice documents referred to in item 1 are not retained by the agency and cannot now be identified with any specificity. I accept at a general level that the COVID-19 Pandemic was very disruptive of governmental functions. However, in my view it does not follow from this that I should accept that there would now be few traces of the agency's policy and strategy formulation in relation to the implementation of public health measures directed at securing as far as possible the safety of hundreds of thousands of children. It appears to me that those circumstances involved, or at least called for, robust evidence-based policy and strategy formulation and that this would create an information record.
It thus appears to me that the agency may be in one of the following predicaments: 1. it has failed to conduct adequate searches to identify the 'advice' and any related document referred to in item 1 of the access application, or 2. the agency did not rely on any specific advice from any of the organisations referred to in item 1 in developing its ventilation and asset use recommendations. The reference to 'advice' is to be understood as general advice issued by those agencies to the world at large, not to the agency. The agency has no greater connection to that advice than any other person, and the agency's statement about its relationship to that advice is overstated and has the potential to mislead, 3. no record was created, or in any event has been retained, which indicates how the 'advice' referred to in item 1 came to 'inform' the agency ventilation and asset use recommendations. That is, in context, a surprising circumstance, given the agency's purported reliance upon the advice to inform its recommendations, I note that if such information did exist there may be an argument that it constitutes a deliberative process and that there may be an overriding public interest consideration against its disclosure on that basis. However, such information would still need to be identified by the agency as responsive to the access application and a decision made in respect of it. I also note that there may be an argument that such information is not within the scope of item 1 of the access request. However, I understand from what is said in the letter from the agency's representative to the applicant's representative dated 10 July 2023 that the term 'briefing' has been given a wide interpretation which would capture such information.
Having regard to these conclusions I am not satisfied that the correct or preferable decision in relation to item 1 is to determine that this information is not held by the agency, at least at this stage and on the material before me. The agency's evidence about the searches it has conducted is not sufficiently robust to discharge its onus of establishing that such a decision would be correct or preferable. The agency has also failed to make transparent the foundation for its assumptions as to the externality of this information to the agency, and its public availability. A question is also left begging on the material before me as to how this 'advice' came to 'inform' the agency's ventilation and asset use recommendations if there is no government information that is intermediate between the 'advice' and the recommendations.
There are thus facts and issues in the evidence which call into serious question the adequacy of the agency's searches for information that is responsive to item 1 of the further amended access application. This element of the application ought therefore to be remitted to the agency for reconsideration in accordance with the observations I have made.

Item 4(d) of the further amended access request

Item 4(d) of the further amended access request sought access to information described as "policy, advice or guidance documents used as a basis for determining the allocation of air purifiers to each school". It is clear on the material before me that the agency interpreted that description of the information to refer to 'systemic' rather than school level information. I do not understand the applicant to cavil with that characterisation of the information sought and in my view it was correct for the agency to characterise the information in this way.
In her Affidavit filed on 19 September 2023 Ms Prendegast gives evidence that the Schools Infrastructure unit of the agency conducted the initial search for information that fell within the scope of item 4(d). She gives evidence that a further "confirmatory" search was conducted for such information following receipt of the applicant's objections to the new decision on 23 May 2023. Ms Prendegast does not identify who it was who conducted these searches. Nor does she outline the search methodology used. Ms Prendegast refers to the "understanding" of the officer(s) who conducted these searches as to the allocation practice for air purifiers. The nature of that understanding is set out (efficient transmission of as many air purifiers as possible), but not the foundation for it (where or how that decision was made). The agency has not provided any statement from any officer of Schools Infrastructure who dealt with the access application that sets out this evidence in direct form.
I give some weight to the fact that an initial and confirmatory search was conducted by the agency for information that falls within the scope of item 4(d), but in the absence of any information about the methodology used I am not satisfied that this is sufficient to discharge the agency's onus of establishing that these searches were reasonable.
In particular, there may be an issue that the agency has conflated the three descriptors used in item 4(d) ("policy", "advice" or "guidance" documents) to the single descriptor "policy" document and conducted searches and decided item 4(d) of the access application on that basis.
In this respect, at paragraphs 27 and 29 of her Affidavit of 19 September 2023 Ms Prendegast refers only to "no policy document" being identified. Only "policy" documents are referred to in the letter of the agency 's representative to the applicant dated 10 July 2023. However, in paragraph 29 of her Affidavit, Ms Prendegast refers to an "audit". An audit is also referred to in the letter of 10 July 2023. It is not clear on the material before me if this is a systemic or school level audit or both. If it is a school level audit a reasonable inference may the drawn that such audits were carried out in accordance with some systemic level guidance. If that is the case I cannot see how information of that character would not fall within the scope of "advice" or "guidance" as those terms are used in item 4(d) of the applicant's further amended access application.
For the foregoing reasons, I am also satisfied that there are facts and issues on the material before me that call into question the adequacy of the searches that have been conducted by the agency for information that falls within the scope of item 4(d) of the further amended access application. This item of the application should therefore also be remitted to the agency for reconsideration in accordance with these reasons.

Orders

For the foregoing reasons I make the following orders: 1. The agency's decisions with respect to items 1 and 4(d) of the applicant's further amended access application are set aside. 2. Items 1 and (4d) of the applicant's further amended access application are remitted to the agency for reconsideration in accordance with these reasons. 3. The agency must give the applicant and the Tribunal its' new decision by 1 March 2024. 4. The applicant must notify the agency and the Tribunal if it intends to proceed with this administrative review by 8 March 2024 or if the application is withdrawn. 5. If the applicant wishes to proceed with this administrative review it must also apply to the Registrar to have the application listed for directions. 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: 31 January 2024

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (3)

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