Efremov v NSW Health Administration Corporation [2026] NSWCATAD 37;

GIPA 2324-3, received on 12 September 2023, seeking information relating to complaints made to the Health Care Complaints Commission regarding the Applicant's Lyme disease testing results;[2]

GIPA 2324-5, received on 4 April 2024, seeking information regarding a research article (Dickeson et al) written by a former NSWHP employee regarding evaluations of serological test kits for the detection of Lyme disease;[3]

GIPA 2324-6, received on 9 April 2024, seeking information relating to quality control and risk assessments for Lyme disease testing at the Institute of Clinical Pathology and Medical Research, Westmead laboratory (ICPMR Westmead);[4]

GIPA 2324-7, received on 23 April 2024, seeking information regarding complaints about Lyme disease testing at ICPMR Westmead;[5]

GIPA 2324-8, received on 23 April 2024, seeking patient Lyme disease test results in raw data form from 'Euroline' testing software;[6]

GIPA 2324-9, received on 13 May 2024, seeking Lyme disease testing statistics from the CERNER Laboratory Information System (LIMS) used by ICPMR Westmead;[7]

GIPA 2324-10, received on 15 May 2024, seeking information relating to Lyme disease testing statistics from the AUSLAB LIMS used by the Royal North Shore laboratory;[8]

GIPA 2425-3, received on 2 October 2024, seeking various information relating to the number of Lyme disease tests conducted at ICPMR Westmead as well as information regarding two particular test kits for the diagnosis of Lyme disease;[9]

GIPA 2425-7, received on 5 March 2025, seeking information relating to a complaint made by the Applicant in relation to the research article authored by Dickeson et al;[10]

GIPA 2425-8, received on 5 March 2025, seeking information about communications between NSWHP and ARRL Geelong regarding Lyme disease tests;[11]

GIPA 2425-6, received on 5 March 2025, seeking information regarding complaints made by the Applicant regarding a complaint he made to NSWHP regarding its conduct of Lyme disease testing. This is the Access Application that is the subject of these proceedings.[12]

1. The Applicant attached a copy of the complaint to the Access Application which pertained to alleged "false negative discordant results" produced in relation to testing conducted for Lyme disease.
2. Following receipt of the Access Application, the processing officer, Mr Matthew Ryan, made inquiries of various business units within the Respondent which included queries as to the time and resources that would be required to search for and extract the requested information.[13]
3. The Respondent estimated the time it would take to process the Access Application as a combined total of approximately 25 hours, and provided the Applicant with a breakdown of the total estimated processing time as follows:[14]
   • Initial processing: includes the preparation of acknowledgement to application associated with processing application and initial consideration of application: 2 hours
   • Examining documents: includes undertaking a review of the documents thought to fall under the application scope: 5 hours
   • Search, retrieve and copy documents: includes undertaking searches of various business information systems, locating and retrieving records including hard copy records and copying and redacting documents where there is personal information of other patients: 10 hours
   • Meetings and correspondence: includes attending meetings with key internal and external stakeholders and preparing both internal and external correspondence relating to the application: 2 hours
   • Consultation: includes undertaking any necessary third-party consultations and consideration of those third-party views: 1 hour
   • Decision: includes the deliberations of the decision and writing the notice of decision document and notifying the Applicant and any third parties: 5 hours
   • Total hours estimated: 25 hours
4. On 1 April 2025, the Respondent notified the Applicant in writing of its intention to refuse his request on the basis that the processing of the Access Application as framed would substantially and unreasonably divert the Respondent's resources and invited the Applicant to amend the Access Application to narrow the scope of the information he sought.[15]
5. On 6 April 2025, the Applicant sent an email to the Respondent in which he advised that he did not wish to amend the Access Applications to narrow the scope of the information sought.[16]
6. On 7 April 2025, the Respondent made the Decision to refuse to deal with the Access Application because the work involved in processing it would require an unreasonable and substantial diversion of the Respondent's resources.[17]
7. On 2 May 2025, the Applicant filed the Review Application with the Tribunal.

1. The GIPA Act gives members of the public a right to access government information, subject to the provisions of the Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective": s 3(1)(b) GIPA Act.
2. A person who applies for access to government information has a "legally enforceable right to be provided with access to the information" in accordance with Part 4 of the GIPA Act unless there is an overriding public interest against disclosure: s 9(1) GIPA Act.
3. "Government information" is defined to mean "information contained in a record held by an agency": s 4(1) GIPA Act). The obligation of an agency to provide access to government information is limited to information held by the agency when the application is received, and the agency must undertake reasonable searches for the information: s 53(1) and (2) GIPA Act. If the information is not held by the agency, the agency may make a decision to that effect: s 58(1)(b) GIPA Act.
4. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5 GIPA Act. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 13 of the GIPA Act sets out the 'public interest test' for determining whether there is an overriding public interest against disclosure of information.
5. Within Part 4 of the GIPA Act, section 58 provides how an agency may decide an access application:

(1) An agency decides an access application for government information by -

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note: These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

1. Section 60 of the GIPA Act allows for an agency to refuse to deal with all or part of an access application in prescribed circumstances. Relevantly, s 60(1)(a) and (3) provide:

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -

(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,

(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989,

...

(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

1. Subsections 60(3A) and (3B) set out factors for consideration when assessing whether processing an access application would require an unreasonable and substantial diversion of an agency's resources:

(3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations -

(a) the estimated volume of information involved in the request,

(b) the agency's size and resources,

(c) the decision period under section 57.

(3B) Any consideration under subsection (3A) must, on balance, outweigh -

(a) the general public interest in favour of the disclosure of government information, and

(b) the demonstrable importance of the information to the applicant, including whether the information -

(i) is personal information that relates to the applicant, or

(ii) could assist the applicant in exercising any rights under any Act or law.

1. Section 60(4) of the GIPA Act requires an agency, before refusing to deal with an application in reliance on s 60(1)(a), to give an applicant a reasonable opportunity to amend the application.

1. Part 5, Division 4 of the GIPA Act concerns administrative review of decisions by the Tribunal.
2. The power of the Tribunal to review a decision arises where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of that decision: s 100(1) GIPA Act.
3. An "agency" is defined in s 4(1) of the GIPA Act to include a "public authority". A "public authority" is defined in clause 2, Schedule 4 of the GIPA Act to include a statutory body representing the Crown.
4. The "reviewable decisions" of an "agency" are set out in s 80 of the GIPA Act. A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act: s 80(c) GIPA Act.
5. Section 105(1) provides, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the GIPA Act concerning a decision made by an agency, the burden of establishing that the decision is justified rests with the agency, except as otherwise provided by the section.
6. Under s 63 of the ADR Act, the Tribunal is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must "decide what the correct and preferable is having regard to the material then before it."[18] It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.[19]

1. The Tribunal must identify and take into account any matters falling within the scope of s 60(3A) of the GIPA Act and then determine if, on balance, they outweigh the matters falling within s 60(3B) of the GIPA Act.

1. On 16 June 2025, the Tribunal made timetabling orders in relation to filing of by both parties their evidence and submissions for the review application as follows:
   • Respondent to file and serve its evidence and submissions by 14 July 2025
   • Applicant to file and serve his evidence and submissions by 18 August 2025
   • Respondent to file and serve a witness notice by 25 August 2025
   • Respondent to file and serve its reply submissions by 1 September 2025.
2. The Applicant filed and served the following material in support of his application:
   • written submissions and affidavit of the Applicant dated 21 July 2025
   • additional submission dated 20 August 2025.
3. The Respondent did not comply with any of the Tribunal's timetabling directions made on 10 June 2025.
4. On 9 September 2025, the Respondent served on the Applicant by email the following:
   • Respondent's written submissions dated 9 September 2025 (RS)
   • Affidavit of Matthew Ryan, an officer of the Respondent, sworn on 9 September 2025 (Ryan Affidavit)
   • Exhibit MR1 to the Affidavit (Exhibit MR1)
5. The Respondent filed these documents with the Tribunal on 10 September 2025.
6. At the Tribunal hearing on 11 September 2025, the Respondent provided the Applicant with a hard copy of its evidence. The Applicant objected to the admission of the Respondent's evidence and submissions for reason that these were filed not in compliance with the Tribunal's orders dated 16 June 2025. Counsel for the Respondent informed the Tribunal that the late submission of the Respondent's evidence and submissions was due to an "oversight".
7. On 30 December 2025, the Tribunal made orders that by 16 January 2026 the Respondent serve the Applicant and file with the Tribunal its submissions in response to the Applicant's objection to the admission of its evidence and submissions filed in non-compliance with the Tribunal's orders dated 16 June 2025, and that the Applicant serve the Respondent and file with the Tribunal his submissions in reply to the Respondent's submissions by 27 January 2026.
8. I have reviewed the submissions of both parties and have decided for the following reasons that there is limited prejudice to the Applicant in the Tribunal considering the Respondent's written submissions dated 9 September 2025 and admitting into evidence the Ryan Affidavit and Exhibit MR-1.
9. The contents of the Ryan Affidavit and Exhibit MR-1 consist substantially of information that was known to the Applicant at the time he lodged the Review Application. The Ryan Affidavit largely duplicates the information contained in the Decision in relation to the Respondent's resources, the time estimated to necessary to process the Access Application, and the impact of the diversion of those resources on the Respondent's ordinary business. Exhibit MR-1 contains the Applicant's applications for access to information under the GIPA Act, email correspondence between him and officers of the Respondent, and the Decision which is the subject of administrative review. The Applicant was aware of the information in the Ryan Affidavit and the documents in Exhibit MR-1 at the time he lodged the Review Application as these originated from or were held by him. I am satisfied that the Applicant was on notice of the Respondent's position in respect to the issues raised in the Decision as he filed written submissions on 21 July 2025 and 20 August 2025 addressing these issues and outlining his position in relation to them, and he made oral submissions in support of his position and in relation to the Respondent's position at the hearing of the Review Application on 11 September 2025.
10. The Respondent's evidence is directly relevant to the Tribunal's task in determining the correct and preferable decision. The Ryan Affidavit addresses the factors under s 60(3A) of the GIPA Act which the Tribunal is required to take into account, including the volume of information estimated to be involved in the access request and the resources available to the Respondent to deal with the Access Application. As these are matters solely within the knowledge of the Respondent, if the information in the Ryan Affidavit and Exhibit MR-1 were to be excluded from the material before the Tribunal, there would be no evidence for me to consider in relation to the matters in s 60(3A) and I would be unable to conduct the balancing exercise required under s 60 of the GIPA Act. For these reasons, I have considered the Ryan Affidavit and Exhibit MR-1 in reaching the correct and preferable decision in this matter.

1. In his written submissions and his oral submissions at the hearing, the Applicant submitted that the correct and preferable decision is for the Respondent to deal with the Access Application. In summary, he contends:
   • the Respondent is a large agency that it is very well-resourced contrary to the Respondent's claims of limited resources, and that its "time estimates should be considered cautiously"; and
   • the balancing test in s 60 should result in a determination that s 60(3B) factors outweigh s 60(3A) factors in this matter, as there is a public safety imperative.

1. In its written submissions and oral submissions at the hearing, the Respondent submitted that it made the correct and preferable decision in the circumstances, and that the Decision should be affirmed by the Tribunal. In summary, the Respondent contends:
   • the estimated hours and resources required to complete the work required in relation to the access application, demonstrates it would require an unreasonable and substantial diversion of resources.
   • given the hours involved in processing the Applicant's request, it would be unable to meet its obligations under s 57(1) of the GIPA Act to process the application within the requisite 20 days, or any permissible extensions to that timeframe.
   • it provided the Applicant with a reasonable opportunity to amend the scope of his application, and it made every attempt to assist the Applicant to narrow his request, in accordance with principles outlined in Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [102].
   • the Applicant's access application entails a very high volume of information that would need to be reviewed in order to respond to the request, as well as an expansive range of searches which would need to be conducted to locate the information sought.

1. The Tribunal has jurisdiction to review an administratively reviewable decision pursuant to s 55 of the ADR Act. The decision to refuse to deal with an access application is a reviewable decision by an agency in accordance with s 80(c) of the GIPA Act. The Tribunal has jurisdiction to determine this Review Application pursuant to s 100 of the GIPA Act.
2. The Respondent is, for the purpose of any Act, a statutory body representing the Crown (s 9(2)(f) of the Health Administration Act 1982 (NSW)) and is therefore a "public authority" as recognised in clause 2 of Schedule 4 of the GIPA Act and meets the definition of an "agency" in s 4(1) of the GIPA Act.

Statutory discretion to refuse access to information: s 60 GIPA Act

1. In Samandi v NSW Department of Communities and Justice[20] the Tribunal made the following observations in relation to the discretion in s 60(1)(a) to refuse access at [15]:

The GIPA Act also provides a number of provisions which allow an agency to refuse to provide access, not on the basis of the content of the information, but on general administrative provisions ...

In addition, the provisions also refer to a ground for refusing access (by refusing to deal with the matter) on the basis that to provide access 'would require an unreasonable and substantial diversion of the agency's resources_.'_ (s 60(1) (a)).

1. In Commissioner of Police v Danis,[21] the Appeal Panel considered the purpose of s 60 of the GIPA Act at [43]:

Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of (sic) deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) ... Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1) ...

1. The Appeal Panel further observed at [49] that when reviewing a decision based on s 60(1) the Tribunal:

should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources.

1. In Zonnevylle v Department of Education and Communities (Zonnevylle),[22] the Tribunal observed at [74] that exercising the s 60(1)(a) discretion requires consideration of the concept of proportionality in balancing the applicant's right to access information with the agency's ability to procure it in a timely and cost-effective manner. The Tribunal stated at [81] that what will be an excessive or unreasonable amount of processing time will depend on the circumstances of each case and is a matter for the decision-maker or the Tribunal to determine with reference to the objects of the GIPA Act. In Hanna v NSW Ministry of Health (Hanna),[23] the Tribunal explained at [16] that the discretion in s 60(1)(a) is based on an assessment of the resources required and relates to the resources that are available to the agency and solely within the agency's control.

1. Subsections (3A) and (3B) of s 60 (see [19] above) were inserted in the GIPA Act by the Government Information (Public Access) Amendment Act 2018. They provide a structured framework for the exercise of an agency's discretion to refuse to deal with an access application under s 60(1)(a).
2. Prior to the amendment of s 60 of the GIPA Act, the Tribunal was guided by the factors identified by O'Connor DCJ in Cianfrano v Director General, Premier's Department (Cianfrano),[24] a matter concerning an application made under the former Freedom of Information Act 1989, when considering whether dealing with an application would require an unreasonable and substantial diversion of resources. O'Connor DCJ outlined at [62] the factors to be considered:

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'

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

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

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 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 timelines binding on the agency ...

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

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

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.

1. Sections 60(3A) and 60(3B) codified a number of the factors identified in Cianfrano and Colefax v Department of Education and Communities (No. 2) (Colefax)[25] under the statutory discretion in s 60(1)(a), which are also relevant to assessing whether an access application would involve an unreasonable and substantial diversion of resources.
2. In Colefax, the Tribunal held at [26] that the Cianfrano factors are relevant to an assessment under s 60(1)(a) of the GIPA Act, although the changed context of the GIPA Act requires that discretions must be exercised so as to enhance its objects (s 3(2)(b) GIPA Act) and this could result in "differing weight and importance being accorded to the Cianfrano factors".
3. In Ruyters v Commissioner of Police (Ruyters)[26] the Tribunal confirmed at [18] that ss 60(3A) and (3B) had the effect of codifying some of the factors identified in Cianfrano and applied in Colefax, and that the caselaw considering these factors remains a relevant and useful source of guidance when considering whether an access application would require an unreasonable and substantial diversion of an agency's resources. The Tribunal explained at [24] that the task of the Tribunal is to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an application on the basis that it would require an unreasonable and substantial diversion of its resources.

Consideration of two or more applications - s 60(3) GIPA Act

1. In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider two or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications: s 60(3) GIPA Act.
2. In Colefax, the Tribunal stated at [25] that the number of previous applications submitted by an applicant, or the resources previously allocated to them, are not relevant to whether dealing with an application would require an unreasonable and substantial diversion of resources, although the existence of previous applications relating to substantially the same information is relevant. Further, the fact that the related previous applications have been determined does not preclude their consideration under s 60(3) (at [37]). The Tribunal stated at [40] that whether two or more access applications are "related" is:

a question of degree, with the assessment to be made in the light of the circumstances of each case, having regard to the purpose of section 60(1)(a) and (3), namely, "to prevent a drain on department resources created by voluminous requests, and to prevent the splitting of access applications into two or more, whether at the same time or not, in an attempt to avoid them being categorised as voluminous requests.

1. The Tribunal emphasised that a "wide and broad-brush approach" should not be taken when determining whether applications are related as this has the potential to frustrate the objects of the GIPA Act (at [42]). Further, the Tribunal held at [43]-[44] that applications were not _'_related' merely because they could be characterised as relating to the one subject-matter. However, applications that sought information relating to the same subject matter in a specified period directed to different offices within the agency are related (at [45]).
2. The Respondent contends that 'there is a clear commonality in subject-matter' between the Access Application and the other 10 access applications made by the Applicant since September 2023 (see [5(a)-(j)] above) 'such that they are inter-related.'[27] It is evident that the 11 access applications made by the Applicant relate to the Respondent's internal processes and protocols, statistical data and other information relating to Lyme disease testing in general, and to the Applicant's complaints in relation to the results of the Lyme disease testing of him that were administered by the Respondent. The access applications also have commonalities in relation to the specific test methodologies. The Access Application and access applications GIPA 2324-3, GIPA 2324-6, GIPA 2324-7, GIPA 2324-8 all relate to the "Trinity Biotech" and "Novatec Novelise" tests,[28] and GIPA 2324-6, GIPA 2324-7, GIPA 2324-8, GIPA 2324-10 and the Access Application all relate to the "Euroimmun Euroline" test.[29] Furthermore, access applications GIPA 2324-5, GIPA 2324-6, GIPA 2324-7, GIPA 2324-8, GIPA 2324-9 and GIPA 2324-10 were made in the course of a five week period between 4 April 2024 and 15 May 2024. The Access Application is one of three access applications that were made on 5 March 2025 all of which relate to the Applicant's complaints about the Respondent's Lyme disease testing functions.
3. On the basis of the evidence before me, I find that the Access Application is 'related' to the other 10 access applications made by the Applicant between September 2023 and March 2025 as they all relate to substantially the same information being the Lyme disease testing conducted by the Respondent during the specified period. I have given this factor considerable weight in assessing whether dealing with the Access Application would require an unreasonable and substantial diversion of the Respondent's resources.

Opportunity to amend application - s 60(4) GIPA Act

1. Section 60(4) of the GIPA Act requires that before refusing to deal with an access application for reason that it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. In Singh v Legal Aid Commission (No 2) (Singh)[30] at [102], Hickey v Secretary, Department of Education[31] at [93] and Hanna at [9], the Tribunal stated that the power of an agency to refuse to deal with an access application should be used only as a last resort after "making every attempt to assist an applicant to narrow their request". In Taylor v Destination NSW[32] at [31] the Tribunal held that "compliance with s 60(4) of the GIPA Act must be demonstrable prior to a decision being made under s 60(1) of the GIPA Act" and that the onus is on the Respondent to prove its compliance.
2. On 1 April 2025, the Respondent wrote to the Applicant notifying him that it intended to refuse to deal with the Access Application on the basis that it would require an unreasonable and substantial diversion of its resources. In the same letter, the Respondent invited the Applicant to amend the Access Application, provided specific suggestions as to how the scope of the Access Application could be narrowed, and encouraged the Applicant to speak with Mr Ryan to obtain assistance to amend the Access Application.[33] In his response to the Respondent on 6 April 2025, the Applicant declined the invitation to amend the Access Application. He indicated that the time frames estimated by the Respondent to deal with the application were "significantly inflated" and stated that he did not believe there was a reasonable way to narrow the scope of the Access Application.[34]
3. On the basis of the evidence before the Tribunal, I find that the Respondent provided the Applicant with an opportunity to amend the Access Application and gave him advice about how its scope could be narrowed. I am satisfied that the Respondent complied with s 60(4) of the GIPA Act prior to a decision being made under s 60(1) to refuse to deal with the Access Application.

Estimated volume of information involved in the request: s60(3A)(a)

1. In his affidavit, Mr Ryan explains that NSWHP does not have a central record-keeping system and given the scope of the Access Application, responsive material would likely be stored in a number of locations across various business units of NSWHP. He states that in order to retrieve this material, searches would need to be conducted by a number of NSWHP staff, including technical laboratory staff who were consulted in the preparation of the response to the complaint the subject of the Access Application.[35] Mr Ryan further states that because the Applicant made two other access applications in addition to the Access Application on the same day (5 March 2025), the Respondent was required to process three access applications within the statutory timeframe of 20 days. The time taken to process the other two access applications is estimated to be 21 hours,[36] and the estimated time to process the Access Application is 25 hours.[37] Accordingly, it would require an estimated 46 hours to process the three related access applications which is more than one week of full-time work.[38]
2. The Tribunal has held that it is a matter for the agency to determine what resources it makes available to process an application under the GIPA Act: Loussikian v University of Sydney (Loussikian)[39] at [50]. In Cianfrano, O'Connor DCJ referred to requests involving more than 40 hours' work being regarded by government administrators as "lying at the upper end of the range" (at [62(g)]). In Loussikian, the Tribunal emphasised at [51] that O'Connor DCJ's reference in Cianfrano to 40 hours' work "should not be regarded as establishing a 40-hour rule" for the purposes of s 60(1)(a). Each access request should be considered on its own facts and an assessment made as to whether the resources available to the agency are such that the time required to process the access application would constitute an unreasonable and substantial diversion of its resources: Loussikian at [51]; Zonneyville at [78].
3. The Respondent allocated 73 hours to processing the first eight access applications made by the Applicant,[40] and 21 hours were allocated to processing the two access applications made by the Applicant on the same day he made the Access Application (5 March 2025).[41] If the time taken to process the Access Application is 25 hours, the Respondent will have allocated approximately 119 hours processing related access applications made by the Applicant. I have given this significant weight in considering whether the time required to process the Access Application would constitute an unreasonable and substantial diversion of the Respondent's resources.

1. In his affidavit, Mr Ryan explains that whereas there are approximately 5,500 Equivalent Full Time (EFT) staff across NSWHP, only a subset of those staff has the requisite knowledge and ability to access the information sought in the Access Application.[42] Mr Ryan is the Right to Information Officer and processing GIPA Act access applications constitutes 0.2 of his full-time duties which equates to seven hours per week.[43] NSWHP does not have a centralised record-keeping system, and therefore Mr Ryan does not have access to all the information sought by the Applicant. Searches related to the Access Application would need to be undertaken by the technical staff who operate the Arbovirus Emerging Diseases and Serology Unit (AEDSU) at ICPMR, Westmead. The AEDSU provides pathology services to public and private pathology providers in NSW and in all States and Territories and neighbouring countries.[44] The required searches would involve diverting at least one scientist from their normal testing, reporting and reagent production duties to undertake searches, review information to identify responsive records, and to then compile responsive records for further review by Mr Ryan. In his affidavit, Mr Ryan states that he has been told that this diversion would have a negative impact on the normal service provision of the laboratory, and that as a consequence, patients would be negatively impacted.[45]
2. Based upon the evidence before the Tribunal, I find that the Respondent is a large agency with substantial resources. I accept that the Respondent has limited staff who have access to the information sought by the Applicant and that in order for the necessary searches to be undertaken, AEDSU laboratory staff would need to be diverted from their usual duties which may negatively impact the pathology services provided by the AEDSU. I find that the staff available to undertake the required searches and the impact on public health services provided by the Respondent tempers the weight that would be otherwise be given to this factor in assessing whether dealing with the Access Application would require an unreasonable and substantial diversion of the Respondent's resources.

Decision period under s 57 GIPA Act: s 60(3A)(c)

1. In his affidavit, Mr Ryan states that because processing GIPA Act access applications constitutes only 0.2 of his full-time duties which equates to seven hours per week, and he estimates he would need to allocate 38 hours to the processing of the Access Application and the two related access applications lodged by the Applicant on 5 March 2025, he would be unable to do so within the statutory timeframe of 20 days.[46]
2. I accept the Respondent's evidence that based on its estimate of the hours required to deal with the Access Application and the two related access applications made by the Applicant on 5 March 2025, it would be unable to the meet the statutory timeframe prescribed by s 57. However, I find that this factor is not determinative and that it should be given only moderate weight in assessing whether dealing with the Access Application would require an unreasonable and substantial diversion of the Respondent's resources.

General public interest in favour of disclosure: s 60(3B)(a)

1. In Ruyters, the Tribunal stated at [47] that the "general public interest in favour of the disclosure of government information" in s 60(3B) refers to the inherent public interest in the disclosure of government information as set out in s 12(1) of the GIPA Act, and not to the specific public interest considerations in favour of the disclosure of the particular information sought as set out in the note to s 12(2). It is to be considered in a "systemic sense that is consistent with the object of the GIPA Act" and it "does not involve any assessment of the public interest in the disclosure of the particular government information that falls within the scope of the access request": Wojciechowska v Commissioner of Police, NSW Police Force[47] at [96].

Demonstrable importance of information to the Applicant: s 60(3B)(b)

1. I accept that the information requested in the Access Application is personal information that relates to the Applicant (s 60(3B)(b)(i)) and I find that this factor should be given some weight.
2. The Applicant has an interest in the Respondent's conduct of Lyme disease testing, having himself received results of Lyme disease testing performed by the Respondent, and he has an interest in the resolution of his complaints. The Applicant claims that defects in the testing process produced serology results which were inaccurate. He believes that the medical devices which were previously used for testing were faulty,[48] and provided many patients, including him, with false negatives, which in turn meant they were unable to access treatment. He considers that the information sought by the Access Application will provide evidence in support of a possible class action claim for medical negligence based on the Respondent's claimed misconduct and its failure to properly diagnose Lyme disease.
3. In Ruyters, the Tribunal observed at [54] that "it is necessary for an applicant to put forward some material to indicate the importance of the information sought rather than engaging in mere speculation or conjecture". The term "demonstrable" requires the provision of sufficient cogent material to establish the importance of the information to the applicant: Dibbs v Transport for NSW[49] at [65]. Based on the material before the Tribunal, I am not satisfied that the Applicant's assertion that the information sought may assist him to pursue legal action meets the evidentiary threshold for establishing the "demonstrable importance" of the information to him under s 60(3B)(b)(ii): Ruyters at [56]. The Applicant has not identified any rights under any Act or law which the requested information would assist him in exercising.

1. Considered together, I am satisfied that the s 60(3A) matters identified by the Respondent, including the volume of information involved, the time needed to adequately deal with the request, and the number of staff required to be diverted from their usual clinical and other duties to process the Access Application outweigh the s 60(3B) matters identified by the Applicant. Whereas I am satisfied there is a general public interest in favour of the disclosure of government information and that the information is personal to the Applicant, he has not established the demonstrable importance of the information to assisting him in exercising any rights under any Act or law.
2. I am therefore satisfied that dealing with the Access Application would require an unreasonable and substantial diversion of the Respondent's resources, and that the correct and preferable decision is to refuse to deal with the Access Application pursuant to s 60(1)(a) of the GIPA Act.

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.

[1] Notice of Decision: GIPA 2425-6 dated 7 April 2025 (Decision).

[2] Exhibit MR-1, pp1-9. This was the subject of NCAT proceedings 2024/00031389 (see Efremov v Health Administration Corporation [2024] NSWCATAD 250) and Appeal Panel proceedings 2024/00356893 (see Efremov v Health Administration Corporation [2025] NSWCATAP 8).

[9] Exhibit MR-1, pp 76-80. This was the subject of NCAT Proceedings 2024/473953 (see Efremov v NSW Health Administration Corporation [2025] NSWCATAD 122).

[20] [2020] NSWCATAD 286.

[21] [2017] NSWCATAP 7.

[22] [2016] NSWCATAD 49.

[23] [2019] NSWCATAD 21.

[24] [2006] NSWADT 137.

[25] [2013] NSWADT 130.

[26] [2020] NSWCATAD 223.

[30] [2015] NSWCATAD 5.

[31] [2021] NSWCATAD 306.

[32] [2017] NSWCATAD 272.

[39] [2018] NSWCATAD 140.

[47] [2024] NSWCATAD 46.

[48] Applicant's statement dated 21 July 2025, [22], [40].

[49] [2022] NSWCATAD 398.