Dolton v Eurobodalla Shire Council

NCAT Administrative and Equal Opportunity|2020-01-31

REASONS FOR DECISION

In November 2004 Eurobodalla Shire Council (the Council) adopted the Moruya Floodplain Management Plan. According to the Council, the Moruya Floodplain Management Plan was prepared in accordance with guidance set out in the 2001 edition of the NSW Floodplain Management Manual using information from a 1996 Moruya floodplain risk management study prepared by Patterson Britton & Partners and a 1992 Moruya River flood study undertaken by the NSW Department of Public Works.
Since the Moruya Floodplain Management Plan was adopted the applicant, Mr Noel Dolton, has written to Council on numerous occasions raising issues and concerns with the Moruya River Floodplain Plan and requesting information. It is clear from material Mr Dolton has provided to the Tribunal that he believes the Moruya River Floodplain Plan is flawed. Over the years Council has provided him with information.
On 4 September 2009 Mr Dolton wrote to the then General Manager of Council and, among other things, asked Council to "fix up" errors in the Moruya River flood study by recalibrating the flood model. On 25 September 2009 the General Manager wrote to Mr Dolton and stated that Council would not be recalibrating the flood model and went on to say: The flood study is not in major error as you claim and there is nothing to indicate that the level of flood waters will decrease as a result of a review. This is an unequivocal statement of Council's position on the Moruya River Flood Study.
Mr Dolton continued to correspond with the Council on this matter and on 5 December 2018 he made an application under the Government Information (Public Access) Act 2009 (GIPA Act) requesting access to the following information: From Council's letter dated 25 September 2009, (copy enclosed) evidence being genuine reports, investigations etc, that informed Council of the following: "THE FLOOD STUDY IS NOT IN MAJOR ERROR AS YOU CLAIM AND THERE IS NOTHING TO INDICATE THAT THE LEVEL OF FLOOD WATERS WILL DECREASE AS A RESULT OF A REVIEW. THIS IS AN UNEQUIVOCAL STATEMENT OF COUNCIL'S POSITION ON THE MORUYA RIVER FLOOD STUDY."

The relevant law

Under s 53 of the GIPA Act, 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.
Under s 58(1)(b) of the GIPA Act, an agency may decide an access application by deciding that the information is not held by the agency. That is a reviewable decision under s 80(e). The burden of establishing that the decision that an agency does not hold information is justified lies on the agency: GIPA Act s 105(1).
In reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches to locate relevant documents. The Tribunal has generally applied the approach of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. In that decision the Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances. (See Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; McClymont v Department of Family and Community Services [2017] NSWCATAD 202.)
The Appeal Panel addressed the application of s 105 of the GIPA Act concerning the burden on the agency to justify its decision that it does not hold information in Webb v Port Stephens Council [2018] NSWCATAP 224 at [37] where it agreed that the correct approach is explained in Amos v Central Coast Council [2018] NSWCATAD 101 at [39]: 39 The burden of establishing that the implicit decision that the Council does not hold information is justified lies on the Council: GIPA Act, s 105(1). The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O'Connor remarked that an applicant "must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material]." These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent's legal onus to justify its decision under s 105 of the GIPA Act.
The Appeal Panel noted at [36] that, where there is relevant and credible material presented to support the decision, in practical terms, a burden will fall on the applicant to try and overcome or undermine the case from the agency. It is not enough for an applicant to base the assertion on a deep-seated distrust of the agency: Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69].
What constitutes a reasonable search will vary with the circumstances, however, key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is the subject of the request: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. That there may be some weaknesses in an agency's searches or failures in recordkeeping within the agency, does not necessarily lead to the conclusion that the search has not been reasonable: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49].

Does the Council hold further information?

In support of his application Mr Dolton has provided copies of letters that he wrote to Council in March 2016 and in June and July 2019. He states that these letters highlight the absence of any procedural fairness being given to him by Council. In the letters he refers to systematic unethical conduct and wrongdoing by members of Council's staff. None of the material submitted by Mr Dolton provides any information to support a contention that the requested information exists. In those circumstances, it cannot be said that Mr Dolton has fulfilled the practical onus to establish the existence, or possible existence, of the requested information.
The Council has conceded, however, that it is reasonable to consider that the information sought by Mr Dolton is of a kind usually held by a Council. It is therefore appropriate to go on to consider whether in all the circumstances the search efforts made by the Council to locate the requested documents have been reasonable.
The information provided by Council is that it searched its records and consulted internally in order to identify what evidence had informed the response to Mr Dolton by the General Manager on 25 September 2009. It could find no paper or electronic documentary records. As the General Manager who wrote the letter was no longer employed by Council, he was unable to be consulted directly about what information, documents or records underpinned his statement in the letter to Mr Dolton. Council therefore consulted the relevant subject matter expert, Norm Lenehan, who holds the position of Coastal and Flood Management Planner.
Mr Lenehan advised that there is no document or report stating the flood study is not in error. He stated that the evidence that the study is valid was the process that it went through to achieve adoption. He said that flood studies in NSW are prepared under the guidance of a common manual and under the supervision of technical experts and the Moruya River flood study was prepared in accordance with the NSW Floodplain Development Manual 2001 which was the manual current at the relevant time. That manual was replaced in 2005 with a new edition. Council was unable to locate a copy of the 2001 version of the NSW Floodplain Development Manual in its records and no link to an online version could be found. As noted above, the 2001 Manual was replaced by a new version in 2005.
The Council advised that it also searched for any other information that might be of interest to Mr Dolton but a review of correspondence and advice from Mr Lenehan demonstrated that an extensive amount of information had already been provided to Mr Dolton over a number of years and was therefore already available to him under s 59 of the GIPA Act.
Given the terms of Mr Dolton's request, being documentary evidence in the form of reports or investigations that informed Council that the Moruya River Flood Study "is not in major error" and that "there is nothing to indicate that the level of flood waters will decrease as a result of the review", I am satisfied that the searches that were undertaken by the Council were reasonable. Undertaking additional searches would involve a substantial and unreasonable diversion of resources of the respondent, and accordingly need not be undertaken. I am therefore satisfied that the correct and preferable decision is to affirm the decision.

Orders 1. The decision under review is affirmed.

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 2020

At a glance

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Judgment (5 paragraphs)

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Cases Cited (4)