These proceedings concern the question of whether the respondent has conducted reasonable searches for information sought by the applicant under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The information sought concerns the proposed location of the Northern Beaches Hospital.
[2]
BACKGROUND
The applicant applied for information held by the respondent on 3 October 2014. His application identified the information he sought as follows:
"Northern Beaches Hospital SSI application SSI 13-5982 submission report / preferred Infrastructure Report - Feb 2014.
Paragraph 2.4.2 - Hospital Location 'The decision was informed by a robust qualitative analysis in determining the Frenchs Forest site'.
The public is entitled to access that 2006 report on which the choice of location was based."
The general rule is that an agency must decide an access application and give the applicant notice of the agency's decision within 20 working days after the agency receives the application (GIPA Act, s 57(1)). However, the respondent consulted with a third party about the application, and extended the period for deciding the application by 10 working days, pursuant to s 57(2) of the GIPA Act. The date on which the decision was due then became 17 November 2014. The respondent then sought to extend the date for decision by a further 5 working days, which would have taken the due date to 24 November 2014. It is not necessary to decide whether the respondent was entitled to do this, because the respondent did not make a decision by 24 November 2014.
If an agency does not decide an access application within time, the agency is deemed to have decided to refuse to deal with the application and any application fee paid by the applicant is to be refunded (GIPA Act, s 63(1)).
On 25 November 2014, the applicant applied to this Tribunal for review of the respondent's deemed refusal decision.
On 2 December 2014, not yet being aware that the applicant had applied to the Tribunal for review, the respondent notified the applicant of its purported decision. The Notice of Decision stated that the NSW Ministry of Health had undertaken thorough searches to identify all government information falling within the scope of the applicant's application and had located one document entitled "Qualitative Assessment of Site Options for New Northern Beaches Hospital - Value Management Workshops of 19 May and 9 June 2005, Final Consolidated Summary Report" ("Qualitative Assessment Report"). It purported to decide, under s 58(1)(a) of the GIPA Act, to provide the applicant with partial access to that report and, under s 58(1)(d) of the GIPA Act, to refuse access to the community representatives' names in the document.
At a planning meeting held on 27 January 2015, the applicant submitted that the document he had received from the respondent was not the document he was seeking. He said he was seeking the final version of a 2005 document he had received from another agency as a result of another GIPA application, entitled "Northern Sydney Central Coast Health, Proposed Northern Beaches Hospital - Development Options Business Case" ("Business Case document").
By consent, I remitted the matter to the respondent, pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW), to conduct further searches and make a new determination by 17 February 2015.
On 17 February 2015, the respondent made a new decision in substitution for its earlier decision, determining under s 58(1)(b) of the GIPA Act that it did not hold the information sought.
The applicant decided to proceed with the application for review of the new decision (Administrative Decisions Review Act, s 65(3)(b)(i)).
[3]
RELEVANT LEGISLATIVE PROVISIONS
Under s 53(1) of the GIPA Act, the obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. By s 53(2), an agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
Pursuant to s 58(1)(b) of the GIPA Act, an agency may decide an access application for government information by deciding that the information is not held by the agency.
A decision that government information is not held by the agency is a reviewable decision (GIPA Act, s 80(e)).
In the circumstances of these proceedings, the burden of establishing that the decision is justified lies on the agency (GIPA Act, s 105(1)).
The Tribunal's role in reviewing the respondent's decision that it does not hold the information sought by the applicant is to decide what the correct and preferable decision is having regard to the material before it (Administrative Decisions Review Act, s 63(1)).
[4]
SCOPE OF APPLICATION
There is some ambiguity in the applicant's application as to the information he seeks. The description of the information sought, reproduced above, included a quotation from a 2014 report referring to a "robust qualitative analysis" used to determine the site of the Northern Beaches Hospital. It then stated that the public was "entitled to access that 2006 report on which the choice of location was based." It is thus not entirely clear whether he is seeking a robust qualitative analysis, a 2006 report or a 2006 report which meets the description of a robust qualitative analysis.
The respondent submitted that the 2006 version of the Business Case document (if it exists) is outside the scope of the applicant's application. It was the view of Dr Tim Jap, Senior External Relations Officer within the External Relations Unit at the Ministry of Health, that the application sought a document that supported a statement that the decision to locate the Northern Beaches Hospital at the Frenchs Forest site "was informed by a robust qualitative analysis." He was of the opinion that the Qualitative Assessment Report, provided to the applicant, met the description in his application.
The applicant filed a submission in which he stated that the Qualitative Assessment Report did not form the basis for the selection of the Frenchs Forest site and did not contain the information he sought in his GIPA application.
Reasonably construed, the applicant's application sought a 2006 report on which the choice of location for the Northern Beaches Hospital was based. In my view, the quotation from the 2014 report is relevant only as part of the context which helps to identify the nature of the 2006 report which is sought. This means that the 2006 version of the Business Case document (if it exists) may be within the scope of the applicant's application, if it is a report on which the choice of location for the hospital was based. I construe the applicant's comments in planning meetings to be narrowing the scope of his application to a search for information in that document.
[5]
EVIDENCE OF SEARCHES
Dr Jap gave evidence that he managed the search for the 2006 version of the Business Case document. This included conducting a search of TRIM using the term "Northern Sydney Central Coast Health, Proposed Northern Beaches Hospital - Development Options Business Case," having discussions with other staff members within his unit and having discussions with staff members within other units which may have been involved in the site selection process. He also requested Mr Bryson Wilson, Manager, Asset Services within the Business and Asset Services Branch of the Ministry of Health, to conduct a search.
Mr Wilson gave evidence that, at Dr Jap's request, he conducted a search for a 2006 version of the Business Case document. He conducted an electronic search of "TRIM" based on key words, including the search terms "Northern Sydney Central Coast Health, Proposed Northern Beaches Hospital - Development Options Business Case," "Northern Beaches Hospital," "Northern Beaches Hospital site selection" and related terms. He also held discussions within his Branch with staff members who he believed may have knowledge of the matter and conducted a physical search within the Branch.
The electronic search Mr Wilson conducted in TRIM identified a file with multiple parts held in archives which related to the site selection process. He retrieved the file and reviewed the parts. The 2005 version of the Business Case document was there, but Mr Wilson did not find a 2006 version of that document.
[6]
WERE THE AGENCY'S SEARCHES REASONABLE?
The respondent has the onus of satisfying me that it conducted reasonable searches to locate the information sought by the applicant.
When determining what constitutes an adequate or reasonable search, this Tribunal and the former Administrative Decisions Tribunal have been guided by the decision of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) QAR 464 (see, for example, Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18]; Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [11] and Stanley v Roads and Maritime Services [2014] NSWCATAD 123 at [16] and [17]). In the Shepherd case, the Queensland Information Commissioner outlined a two-stage test to resolve the question of what constitutes an adequate search for the purposes of the Queensland freedom of information legislation as it then stood, being:
(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
The test in Shepherd's case must be adapted to the different legislative context of the GIPA Act, in which it is government information which is the subject of a request. It must also be understood in light of the respondent's onus under the GIPA Act. Thus, it is important to note that the applicant does not have the burden of demonstrating that there are reasonable grounds to believe that information within a document exists and that it is information held by the agency.
The applicant submitted that he had not sought a 2006 version of the Business Case document. He said that the copy of the Business Case document provided to him was marked "Version 1.4, DRAFT" and that he sought the final version of that report. He said that it might have been finalised in 2005.
The applicant also submitted that it was inconceivable that the respondent did not hold a copy of such an important document, particularly as it was a very relevant component in the formal planning process for the hospital, which has been in progress since October 2012.
The applicant provided some information relevant to the question of whether there are reasonable grounds to believe that the requested documents exist. He attached to his application to the Tribunal statements about the project to build the Northern Beaches Hospital. According to a media release, which he provided, the project will cost about $1 billion. The rationale for the choice of location is contained in a 2014 report which says the decision as to location "was informed by a robust qualitative analysis".
The respondent also provided some information about the choice of site for the Northern Beaches Hospital. It provided evidence that a "value management workshop" was held in May and June 2005 involving representatives from government, local councils, community and local health services and that the Qualitative Assessment Report was an outcome of that workshop.
The applicant said that evidence that the final version of the report may be the ultimate statement of the rationale for the choice of site is contained in "Legislative Council General Purpose Standing Committee No 2 - Government Response to the Inquiry into the Operation of Mona Vale Hospital - 1 Dec 2005." This document states, according to the applicant, that:
"In May/June 2005 a qualitative review of short-listed sites for the Northern Beaches Hospital narrowed the list of preferred sites to Frenchs Forest, Dee Why … and Warringah Golf Course. This was on the basis of the qualitative review principles, economic appraisal and risk analysis of site implementation and imposed risks of each site. A draft Development Options Business case has been finalised and is to be considered by the Department with a view to a recommendation being made to the Minister and Government in relation to the preferred site for the new Northern Beaches [sic]."
This suggests that, if a final version of the report was produced, that happened in 2005. As I have found, the applicant's application seeks information in a report from 2006.
The reference in the 2014 report to a "robust qualitative analysis" does not, in my view, provide reasonable grounds for believing the final version of the Business Case document exists or that if it exists it was dated 2006. The reference is more likely to be to the Qualitative Assessment Report provided to the applicant. The applicant submitted that the Qualitative Assessment Report "clearly did NOT form the basis of the selection of the Frenchs Forest site, as it merely reduced the options from six to four, explicitly avoided trying to reach a consensus, and Frenchs Forest was by no means favoured in the report." Notwithstanding this, I have reviewed the Qualitative Assessment Report and, having regard to its contents and its title, I find that it is probably the document referred to in the 2014 report.
Notwithstanding that I am of the view that there are no reasonable grounds to believe the 2006 report sought by the applicant exists, I have considered whether the respondent conducted reasonable searches for information in that document.
The evidence establishes that the respondent has conducted reasonable searches to locate a 2006 version of the Business Case document. The electronic searches, searches of archives and discussions with staff members were reasonable steps to take to locate a 2006 version of the Business Case document. These searches are also likely to have located any other final version of that document, even though it was not within the scope of the applicant's application.
For these reasons, I affirm the respondent's decision that it does not hold the information sought by the applicant.
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: 19 June 2015
Parties
Applicant/Plaintiff:
Cunningham
Respondent/Defendant:
NSW Ministry of Health
Legislation Cited (3)
)the Government Information (Public Access) Act 2009(NSW)