Evans v Chief Commissioner of State Revenue

Issues

1. The issues in this review are: 1. whether the Chief Commissioner holds the relevant "government information" requested by Mr Evans - being a spreadsheet populated with all current unclaimed money data that Revenue NSW has received since 1 January 2021 or the raw data in a tab separated text file form; and 2. whether the information is already publicly available.

Jurisdiction

1. The decision under review is a reviewable decision in accordance with s 80(e) and (f) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act.
2. The Tribunal's function on a review under s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) is to make the correct and preferable decision having regard to the material before it, and any written or unwritten law as though it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. It is well established that in considering an application for review the Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Unclaimed money

1. "Unclaimed money" is defined in the Unclaimed Money Act 1995 (NSW) (UCM Act), ss 7 and 8: 7 Unclaimed money (1) For the purposes of this Act, money is unclaimed money if it is money of a kind referred to in section 8 that an enterprise holds in an account that has not been operated on for at least - (a) 6 years, or (b) such shorter period - (i) as may be prescribed by the regulations (being a period of not less than 2 years), or (ii) as may be approved, in relation to a particular enterprise, by the Chief Commissioner at the request of the enterprise (being a period of not less than 12 months). (2) The account may include - (a) money whose owner is not identifiable, and (b) money owned jointly or severally by 2 or more persons. 8 Money that may constitute unclaimed money Money may be unclaimed money only if it is one of the following kinds - (a) money (including principal and interest, dividends, bonuses and profits) the recovery of which has been or may be barred by operation of law, (b) money on deposit, (c) share capital subscribed for a share in a body from which the capital subscribed may be withdrawn by the subscriber.
2. The UCM Act, s 3 defines "enterprise" to mean a "person, partnership, association, society, institution, organisation or other body, whether or not incorporated, that … operates in any way (or, in the case of a natural person, has a residential address) in the State, and … holds money on account of another person or body, but does not include a bank (within the meaning of the Banking Act 1959 of the Commonwealth) or a building society, credit union or friendly society".
3. Information regarding the publication of unclaimed money is set out in the UCM Act. Section 12 requires the Chief Commissioner to cause to be published such information as appears to the Chief Commissioner to give reasonable notification of the existence of each sum of unclaimed money paid to the Chief Commissioner under the UCM Act that exceeds $100 and the identity of the owner (if known).
4. Section 12(2) UCM Act provides a discretion to the Chief Commissioner to determine the method by which such information is to be published.

GIPA Act

1. The GIPA Act is an Act to facilitate public access to government information. Section 3 provides: 3 Object of Act (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 - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (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 reasonable cost, access to government information
2. An access application is defined as "an application for access to government information under Part 4 that is a valid access application under that Part" (GIPA Act, s 4) and is an enforceable right under GIPA Act, s 9 unless there is an overriding public interest against disclosure.
3. "Government information" means "information contained in a record held by an agency" (GIPA Act, s 4). "Record" is defined in Sch 4, cl 10(1) as "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means".
4. Agencies have certain obligations regarding searches. Section 53 provides: 53 Searches for information held by 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 diversion of the agency's resources.
5. There are a number of ways in which agencies may decide an application for access which are set out in the GIPA Act, s 58: 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 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.
6. Section 59(1) of the GIPA Act 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.
7. Section 75 gives a discretion to an agency to provide access to information by creating a new record. Section 75 provides: 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following - (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.
8. On an application for review with respect to an access application under the GIPA Act, the Chief Commissioner has the burden of proving that government information was not held: GIPA Act, s 105(1).

Materials relied on

1. Mr Evans relied on: 1. Written submissions dated 8 April 2022 and attachments A - O; 2. His oral submissions during the hearing.
2. The Respondent relied on the following: 1. Documents filed under s 58 of the ADR Act on 28 March 2022; 2. Affidavit of Dan Papallo dated 25 March 2022; 3. Affidavit of Scott Nash dated 25 March 2022; 4. Submissions dated 28 March 2022; 5. Reply submissions dated 17 May 2022; 6. Oral submissions from Ms Mattes at the hearing.
3. The Information Commissioner also filed written submissions dated 6 May 2022 and made oral submissions at the hearing: s 104(1) GIPA Act.

Applicant's submissions

1. Mr Evans acknowledged that this matter had come about because of the change of policy regarding access to unclaimed money data on Revenue NSW's website. Mr Evans took the Tribunal to the website and demonstrated the search functionality which required inputting the name of the individual for whom the search is being conducted.
2. Mr Evans argued that publication of unclaimed money under the UCM Act "requires publication by more than just a facility for a search on a specific name, but rather, full disclosure to all persons" not just those individuals who are required to input their name. The UCM Act has as its object the securing and safeguarding of unclaimed money funds for the protection of the owners and ensuring the return of those funds to owners and his request was consistent with that object.
3. Mr Evans submitted that the agency would not be required to create a new record because what he requests is the underlying data which already exists. The information as now presented through the search function on the website requires Mr Evans to know the name of every person whose property is included in the unclaimed money database for it to be available to him.
4. The structure query language (SQL) enquiry command utilised by the website, allows for individual records to be gathered in one action. The previous website would allow a user to input a starting date and selection of a period of time (for example 3 months) to which the data referred and would generally produce a list of all records in that period.
5. Mr Evans' contended that as the SQL format is already well known to Revenue NSW, it would not unreasonably interfere with the operation of the agency to use that format to provide the information in the format requested by him.
6. He says that putting the data in the format requested by him does not mean a new record needs to be created nor does it require deduction, inference or calculation by the agency to achieve. Rather, all that is required is the extraction of individual records from the database selected only by date into a "convenient carriage vehicle", similar to photocopying of paper documents and binding and stapling them into bundles which also does not require the creation of a new record.
7. Mr Evans took issue with what comprises "personal information" for the purposes of the Privacy and Personal Information Protection Act 1998 (NSW), s 4(1) (PPIP Act). He argued that a person's address is not "personal information" (PPIP Act, s 4(1)) and may fall within one of the exceptions in the PPIP Act which would mean that the Chief Commissioner is not prevented from releasing it. This argument appeared to be directed towards a challenge to the Chief Commissioner's decision to change the format of the search function on Revenue NSW's website.
8. Further, as a person's address was not "personal information" for the purposes of the GIPA Act, consequently it is not caught by GIPA Act, s 14 which stipulates there is a public interest against disclosure in respect of information which could reasonably reveal an individual's personal information.
9. Consequently, he argues, there were in fact no privacy concerns with the previous version of the website in the publication of data about unclaimed money and the process of changing the website to meet a privacy issue was essentially flawed and unnecessary.
10. Mr Evans acknowledged that the Revenue NSW "website content is publicly available on unclaimed money" but that being available is not the same as published and consequently, the website does not meet the Chief Commissioner's obligation to publish all of the UCM information as required.
11. Mr Evans also made numerous submissions about where the public interest lies and other reasons why the information sought should be released.

Respondent's evidence and submissions

1. The main thrust of the Chief Commissioner's submission was that it does not hold the information in the format requested by Mr Evans.
2. The Chief Commissioner contended that the GIPA Act provides for access to information contained in existing records, rather than acting as a vehicle for any query that a person might have about the agency, its activities or its records: Davison v NSW Department of Education and Training [2013] NSWADT 25 at [3], [24] cited with approval in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 at [26]. Therefore the question whether information is already contained in a record and is government information, directs attention both to the terms of the access application and the record keeping system of the agency.
3. It was submitted that the Chief Commissioner is not required under GIPA Act to create a new record nor exercise the discretion in s 75 to create the record. Mr Evan's application effectively requires the Chief Commissioner to interrogate other information held by it (that is, the UCM database) so as to produce or generate an answer or other record. The evidence of Mr Papallo and Mr Nash explained the steps that would be required to produce the record in the format requested by Mr Evans.
4. As the Chief Commissioner does not hold government information which is responsive to Mr Evan's application, it was correct to refuse his application. Further, the information sought is already publicly available to the applicant via the Revenue NSW website.
5. In response to Mr Evan's submissions about the public interest and other reasons for requiring the information to be released, the Chief Commissioner contended these are inapposite to the issues that the Tribunal must consider in deciding whether to affirm the decision that information is not held under s 58(1)(b) of the GIPA Act.

Information Commissioner's submissions

1. The Information Commissioner submitted: 1. the obligation 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: GIPA Act, s 53(1); Choi at [16]; Shvetsova v University of New England [2015] NSWCATAD 49 at [32-[33]. 2. in the context of digital government, this provision should be distinguished from the form of access to information: GIPA Act, s 72. 3. section 53 of the GIPA Act requires the agency to undertake such reasonable searches as may be necessary to find any of the government information but where this would require substantial and unreasonable diversion of resources this would not be reasonable or necessary; 4. there is a five-step approach to determining whether information is held under s 58(1)(b) as outlined in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [41]-[44]: 1. Identify on the basis of the agency's reasons and applicant's submissions any relevant factual issues; 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. 1. It is relevant that Mr Evans is aware of the scope of the information responsive to his application as he previously populated an Excel spreadsheet from the information published on the Revenue NSW website for an earlier time period and he is aware the underlying data is held by the Chief Commissioner.

Consideration

1. The starting point for this application for review is the actual terms of Mr Evans' GIPA access request.
2. In essence, Mr Evan's request is for access to information published on the Chief Commissioner's database in a different format from that in which it can presently be accessed.
3. However, while the scope of the access application was agreed (as referred to in [5] above), at the hearing and in his written submissions, it appeared Mr Evans suggested the provision of the raw data underlying the UCM could be provided in Excel as a means to conveying or delivering the information but what he really wanted was the underlying data in any form. This is a different request for access to information from the one which the Chief Commissioner refused on 23 September 2021. As not the subject of the decision of the Chief Commissioner, this much broader request for information is therefore not relevant to my review of the access application that was in fact made. In any event, for the reasons set out below and based upon the evidence of Mr Papallo, access to the raw data in the UCM database could not be provided to Mr Evans.
4. The Chief Commissioner maintains the position it took when the decision was made: that it does not hold information in the format requested by Mr Evans; and the raw data about unclaimed money is already published on the website, access to which is through the search function on the Revenue NSW website.

The evidence

1. Mr Dan Papallo, the Director of Digital Products - Taxes and Grants at Revenue NSW gave evidence and was cross-examined at the hearing. He described the process necessary to create an Excel spreadsheet populated with the information sought by Mr Evans or to provide Mr Evans with the raw data. He was also familiar with the process prior to March 2021.
2. Mr Papallo explained that the data extracted from the returns lodged by enterprises via the Revenue NSW website is stored in a back-end database ("the UCM database"). The data is stored in tables which are organised in various ways including by reference to owner's name, date of birth, last known address or enterprises. The information stored in each data table is not linked - they are stand-alone datasets. The information can only be linked by running a search query.
3. Mr Papallo said there is no existing record in which data has already been compiled from the UCM database in the format requested by Mr Evans, nor does Revenue NSW generate reports compiling data in that format. He also indicated that a record could be created in an Excel spreadsheet but that numerous steps by qualified persons (not limited to quality assurance engineers and software developers) would be required including: 1. reinstating the search functionality that existed prior to March 2021 by: 1. identifying and retrieving the pre-March 2021 code underlying the search functionality from the coding repository; 2. identifying subsequent updates made to the code managing the UCM database and where necessary, making adjustments to the pre-March 2021 code to accommodate those updates in order to make it capable of completing searches of the raw data; 1. isolating from this code a search query that could be used to generate a report in the format requested by the applicant; 2. running the search query to generate results; 3. undertaking a quality review process; 4. importing the results into an Excel spreadsheet; and 5. undertaking a further quality review process.
4. These steps may also need to be repeated depending on the circumstances.
5. The same steps would be required to produce raw data in a "tab separated text file form" other than importing into an Excel spreadsheet. The only other way to provide the raw data in the UCM without running a search query, would be to provide Mr Evans with access to the entire UCM database. However, as it is part of a broader network of databases maintained by Revenue NSW, it would not be possible to isolate and extract just those tables relating to the UCM database, nor would those tables be of any use on their own without linking through the website's search query.
6. During cross-examination Mr Evans directed Mr Papallo to perform various search functions on the Revenue NSW website to demonstrate it does not function in the way it did prior to March 2021, which was in any event accepted.
7. I accept Mr Papallo's evidence.
8. Mr Nash from the Chief Commissioner was also cross-examined at the hearing. He gave evidence about money finders, the Privacy Impact Assessment (PIA) and subsequent changes to Revenue NSW's website.
9. Mr Nash also accepted that the search function has changed and that it is not possible to retrieve the entirety of the underlying information in the database without using the specific search query. He said that the search query is the sole method of publication of the unclaimed money data; it was changed in response to concerns raised in the PIA; and that it still performs the same task even though there is a limit on the number of records which are displayed back.
10. I accept Mr Nash's evidence.

Does the Chief Commissioner hold the information requested?

1. In Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288, Senior Member Goodman (as his Honour then was) considered "government information" in circumstances where the applicant sought access to statistical information that did not exist in the record of the agency but which could be generated if certain steps were taken. The Tribunal concluded: "[53] The evidence establishes that at the time of the access application, the NSWPF did not have a record which contained the information sought by the applicant, although it was possible to bring such a record into existence, by the creation and application of a bespoke computer program. [54] It follows that the information sought by item 3 is not 'government information'."
2. Similarly in this case, on the evidence before me I am satisfied that at the time of the access application, the Chief Commissioner did not hold a record of the information in the format sought by Mr Evans.

Is the Chief Commissioner required to create a new record?

1. As noted above, the Chief Commissioner's obligation to provide access to government information does not require an agency to make a new record of information held or create new information: GIPA Act, s 75(2)(a) and (c).
2. In Commissioner of Police v DYD [2020] NSWCATAP 224 at [19] ("DYD"), the Appeal Panel considered the application of GIPA Act, s 75. The Panel held that while s 75 "allows an agency to provide access … 'by making and providing a new record'", the agency is not required to do so. Further, s 75(2) "does not provide a 'general administrative reason' for refusing to provide information": see DYD at [38].
3. The Appeal Panel stated at [39]: " Section 75 does not relieve an agency of its obligation to provide access to information - it simply clarifies that it does not have to do so by way of the creation of a new record. In context, a 'new record' must mean, in effect, 'another record'."
4. I am satisfied on the balance of probabilities that the steps, set out by Mr Papallo, would be required to create a record of the information stored on the UCM database in the format requested by Mr Evans. In the absence of those steps being taken, the information requested by Mr Evans does not exist.
5. The submissions made by Mr Evans are not dissimilar to that in Kitson v Manly Council [2015] NSWCATAD 102. In that case at [17], in response to the contention that a simple compilation of existing records (in that case raw data) should not be considered to amount to the creation of a new record, the Tribunal held that such a contention "…is inconsistent with the definition of record which includes 'any record or other source of information compiled': (Schedule 4, cl 10(1)) i.e. the record is already compiled, and not a record that needs to be compiled."
6. The same applies in the present case. The only way in which the information could be provided to Mr Evans in the format requested is by the compilation of the information and/or the raw data in a new and different format than currently in existence.
7. While on the evidence it is possible to create a new record, the decision to do so is a discretionary decision and there is no requirement for the Chief Commissioner to create a new record. I am also satisfied on the evidence that to create a new record would require a substantial and unreasonable diversion of resources. I would, in any event, exercise the discretion in s 75 in the same way as has been exercised by the Chief Commissioner and would decline to create a new record of the government information as sought by Mr Evans.

Is the information already publicly available?

1. Mr Evans submitted that the information he seeks is not publicly available (as it is required to be under the UCM Act) but also accepted during the hearing that the information was publicly available, it just did not meet the criteria of being "published" (which the Chief Commissioner is required to do).
2. As the words "publicly available" are not defined in the GIPA Act, the starting point for their construction is their natural and ordinary meaning. While dictionary definitions are no substitute for engaging in the process of construction it is permissible to take them into account: Joske v Dental Cash Order Co Pty Ltd (1916) 21 CLR 172 at 178; Will v Brighton (2020) 104 NSWLR 170 at 183.
3. As noted by the Chief Commissioner, the Macquarie Dictionary defines the relevant words as follows: 1. "publicly" means "in a public or open manner" and 2. "available" means "suitable or ready for use; at hand; of use or service".
4. In Danis v Commissioner of Police [2017] NSWCATAD 144 the Tribunal considered the word "available" in the context of ss 59 and 60 where the applicant had contended the material was not available to him because he could not uplift documents that were available only for inspection.
5. The Tribunal in Danis at [22] held as follows: "As a principle of statutory interpretation, it is assumed that by using the different terms 'access to' and 'available to' in the GIPA Act, the Legislature intended to refer to different things (Bell v Day (1886) 2 QLJ 180). There is nothing in the GIPA Act, in my view, which contradicts this presumption. On my reading of the Act I conclude that an applicant who has 'access to' information within the meaning of the GIPA Act has been provided with a means of viewing, obtaining or otherwise accessing the information under that Act. Information which is described as 'available to' an applicant is information which the applicant may access by some means outside the Act (see for example ss 59, 80(f)). In my view the DVD was available to the applicant, as he could inspect it at the Family Court. The fact that he could not copy it does not mean that it was not available."
6. Noting that a consistent meaning should be given to a word in an Act each time it appears (Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618) and where nothing in the Act contradicts that meaning, in my view the word "available" should be given the same meaning when construing ss 58(1)(c) and 59 as given in Danis.
7. I am satisfied on the evidence of Mr Nash, Mr Papallo and the demonstration during the hearing of the use of the Revenue NSW search function for unclaimed money, that the unclaimed money information is available to the public on the Revenue NSW website. Even though a member of the public is required to conduct a search using the search function on the website to locate relevant unclaimed money information and the whole of the unclaimed money information is not presented at one time, this does not detract from the fact that the information is publicly available.
8. Further, and for completeness, I reject Mr Evans' submissions so far as they purport to attack the decision of the Chief Commissioner to change the website in response to the PIA and to the extent they challenge what is "personal information" under the PPIP Act or whether the Chief Commissioner has not "published" information for the purposes of the UCM Act. As noted in Raven v The University of Sydney [2015] NSWCATAD 104 at [45] (citing Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24]), "proceedings under the GIPA Act, like those under the former Freedom of Information Act 1989 (NSW), should not be used 'as a vehicle for the collateral review of the merits or validity of official action'". In any event, these are irrelevant to the issues I am to determine and are not reviewable decisions the subject of these proceedings.
9. The correct and preferrable decision is to affirm the decision of the Chief Commissioner.

Order

1. The order of the Tribunal is: 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: 19 September 2022