Fire Brigades Employees Union v Fire and Rescue NSW

NCAT Administrative and Equal Opportunity|2023-08-07

on (Applicant) Fire and Rescue NSW (Respondent) Representation: Counsel: A Searle (Applicant) T Liu (Respondent) V Taylor (Information and Privacy Commissioner) File Number(s): 2023/00019479 Publication restriction: Not applicable

Background

By an application filed on 19 January 2023, the Fire Brigades Employees Union (the applicant) sought administrative review of a decision made by Fire and Rescue NSW (the respondent) on 17 November 2022, under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
On 6 October 2022, the respondent received an access application ("GIPA request") from the applicant, which sought disclosure of the following information: We kindly request a digital copy of the contract or contracts in full for the past engagement of Dr Marc Stigter by FRNSW. Dr Stigter was paid a total of $707,395.36 for this engagement. The period is outlined below we also kindly request all correspondence related to the planning and forming of the contract/s and request contractual relationship including which FRNSW representative selected Dr Stigter or which FRNSW representatives were involved in the selection process. For the period 25 May 2017 to 16 October 2021.
On 17 November 2022, the respondent made a decision under ss 58(1)(a) and (d) of the GIPA Act, which indicated the following matters: 1. Searches were conducted by the respondent's Executive Business Unit and the Strategic Procurement Contract Services Teams through their records management databases. These searches resulted in the location of two (2) documents that fell within the scope of the GIPA request and they were described in full in the Schedule of Documents attached to the decision; 2. The respondent decided to release the document listed at point 2 of the Schedule of Documents in part, subject to deletion (redaction) of information under s74 of the GIPA Act on the basis that there was an overriding public interest against disclosure under: 1. Clause 4(b) of the table to s 14(2) of the GIPA Act, on the basis that disclosure of the information could reasonably be expected to reveal commercial-in-confidence provisions of a government contract; 2. Clause 4(c) of the table to s 14(2) of the GIPA Act, on the basis that disclosure could reasonably be expected to diminish the competitive commercial value of any information to any person; and 3. Clause 4(d) of the table to s 14(2) of the GIPA Act, on the basis that disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.

Procedural matters

On 20 February 2023, Senior Member McAteer conducted a Case Conference at which Mr Searle appeared for the applicant in person, Mr J Perkins (Fire and Rescue NSW) appeared for the respondent in person and a representative from the Information and Privacy Commissioner's Office attempted to join the case conference by way of VMR. The Senior Member listed the matter for a further case conference on 6 March 2023 and he noted that the parties agreed that Dr Stigter had until 18 April 2023 to lodge a third party application under ss 54(6) and (7) of the GIPA Act. From that date, in the absence of any administrative review by Dr Stigter, the respondent would be at liberty to release the documents that it proposed to release to the applicant.
On 6 March 2023, Senior Member Perrignon conducted a further case conference, at which Mr Searle appeared for the applicant by telephone, Mr Perkins appeared for the respondent by telephone and Ms V Taylor appeared for the Information and Privacy Commissioner in person. The Senior Member listed the matter for mediation on 22 March 2023 and he listed the matter for directions by telephone on 4 April 2023. Inter alia, he noted: 1. The respondent advised that on 1 March 2023 it wrote to Dr Stigter and advised him of the existence of these proceedings, that it intended to release the information to which access is sought, and that he had a statutory right to seek review of any such decision. 2. Having regard to the date of its said letter, it considered that Dr Stigter's right to seek review would expire on or about 29 April 2023, and that until then it will be prevented from disclosing any further information by operation of ss 54(6) and (7) of the GIPA Act.
The Senior Member also ordered the respondent to provide Dr Stigter with a copy of his orders and the application and to invite him to attend the mediation. Further on or before 17 March 2023, the respondent was ordered to: 1. File and serve a copy of its letter to Dr Stigter dated 1 March 2023 and a copy of any further correspondence to him; and 2. Notify the Tribunal (with a copy to the applicant's solicitors) of Dr Stigter's response to the invitation to attend mediation.
On 22 March 2023, the mediation was adjourned part-heard until 17 May 2023.
On 4 May 2023, Senior Member Little conducted a directions hearing. However, none of the parties appeared and she listed the matter for directions on 23 May 2023.
The dispute failed to resolve at mediation and on 23 May 2023, Senior Member Montgomery conducted a directions hearing. Mr Searle appeared for the applicant and mentioned Mr Perkins' appearance for the respondent. There was no appearance by or on behalf of the Information and Privacy Commissioner. The Senior Member made the following orders: 1. The applicant is to advise the respondent of any remaining issues in dispute by 30 May 2023; 2. The respondent is to give to the Tribunal and all other parties its evidence including statements, documents and submissions by 20 June 2023; 3. The applicant is to give to the Tribunal and all other parties its evidence including statements, documents and submissions by 18 July 2023; 4. The respondent is to give to the Tribunal and all other parties alle evidence in reply, submissions and a summary of legal arguments by 1 August 2023; and 5. The matter is listed for hearing on 7 August 2023.
On 24 May 2023, Principal Member Simon made the following orders: 1. The applicant is to advise the respondent and the Information and Privacy Commissioner of the remaining issues in dispute by 30 May 2023; 2. The respondent is to give to the Tribunal the applicant and the Information and Privacy Commissioner the following material: evidence including statements, documents and submissions by 20 June 2023; 3. The applicant is to give to the Tribunal and all other parties its evidence including statements, documents and submissions by 18 July 2023; 4. The respondent is to give to the Tribunal and all other parties alle evidence in reply, submissions and a summary of legal arguments by 1 August 2023; and 5. Note: the Information and Privacy Commissioner has sought to be heard in the proceedings and the directions have been amended to take into account that she may seek to be heard.
On 26 June 2023, Principal Member Simon made the following further orders: 1. Orders (2) to (4) made 23 May 2023 are vacated; 2. The decision is remitted to the respondent pursuant to s 65(1) of the Administrative Decisions Review Act 1997 (ADR Act) for reconsideration; 3. The respondent is to affirm the decision, vary the decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the ADR Act, and to provide reasons, both the applicant and the Tribunal by 19 July 2023; 4. If the applicant wishes to proceed with any application for review: 1. The respondent is to file and serve any evidence and/or submissions that it wishes to rely on by 28 July 2023; 2. The applicant is to file and serve any evidence and/or submissions that it wishes to rely on by 4 August 2023; 3. The matter to proceed to hearing as currently listed on 7 August 2023; Note: The Tribunal notes that: (a) the grounds identified in the application dated 19 January 2023 have been resolved by agreement between the parties following a further disclosure of material made by the respondent on 14 June 2023; and (b) the outstanding dispute relates to a further issue raised by the applicant in correspondence dated 19 June 2023 concerning whether the respondent holds information responsive to the access application other than the documents identified in the notice of decision dated 17 November 2022 and the subsequent supplementary notice of decision dated 5 May 2023.
On 5 July 2023, Principal Member Simon made the following further orders: 1. Order (3) was amended to include that the respondent informs the IPC of the decision to vary, affirm or make a new decision; 2. Order (4) was amended to include that the applicant inform the IPC of their decision to proceed or withdraw; and 3. Order (5) was amended to read "The applicant and the Information Commissioner are to file and serve any evidence and/or submissions that they wish to rely on by 4 August 2023.
On 21 July 2023, Principal Member Simon further extended the time for compliance with order (4) to 24 July 2023.
On 31 July 2023, Principal Member Simon made the following further orders: 1. The application to direct the Registrar to issue the summonses on Ian Lister and Nick Alferis and the objections to the three further summons are adjourned to be dealt with at the outset of the hearing on 7 July 2023; 2. Parties are to provide to the Tribunal and each other, written submissions in relation to the summons request by 4pm on 4 August 2023. Note: Parties are on notice that the substantive proceedings remain listed for hearing on 7 July 2023. The three summonsed witnesses will be required to appear from 1pm onwards and will be advised immediately if the objections are upheld. One of the summonsed witnesses is no longer employed by the respondent. The parties will liaise in relation to how they will appear and the respondent will make any further application for appearance by AVL in due course.
On 1 August 2023, Principal Member Simon corrected the orders dated 31 July 2023, to reflect that the hearing date was 7 August 2023 and not 4 July 2023.

The Hearing

The matter came before me for hearing on 7 August 2023. Mr Searle of Counsel appeared for the applicant. Mr Liu of Counsel appeared for the respondent and Ms Taylor appeared for the Information and Privacy Commissioner. However, the only issue heard was that relating to the parties' applications to issue and set aside the summonses.
When the matter commenced, Mr Liu stated that on 27 July 2023, the Applicant applied to NCAT for the issue of five (5) Summonses to Give Evidence. The Tribunal issued three (3) of the summonses, but declined to issue the remaining two (2) summonses. The applicant sought a review of that decision and this was determined by Principal Member Simon.

Respondent's outline of submissions on objections to summons

The respondent filed written submissions on 4 August 2023. It stated that the substantive issue in dispute was whether the respondent conducted reasonable searches in response to the GIPA request.
On 31 July 2023, the Tribunal listed the matter notionally to hear the applicant's application for review of the Registrar's decision to decline to issue summonses to give evidence to Nick Alferis and Ian Lister. The parties indicated a consent position that, given the common issues arising from the respondent's objection and the applicant's challenge to the Registrar's decision, the preferable course would be to turn the listing on 7 July 2023 from a final hearing to an interlocutory hearing on the procedural issues concerning the summonses and to then relist the matter for final hearing for up to 2 to 3 days depending on the Tribunal's decision on the summons issue.
The respondent stated that these submissions specifically addressed the principles applicable to resolving the objection to the summonses and it argued that the Tribunal should uphold its objection to the three (3) summonses that were issued and affirm the Registrar's decision to decline to issue the other two (2).
The issuing of summonses to give evidence to witnesses in proceedings under the GIPA Act is very rare and there is clear Appeal Panel authority against allowing summonses to issue in GIPA matters. In Lonsdale v University of Sydney [2015] NSWCATAP 277 (Lonsdale), the Appeal Panel stated (at [32]-[34]): 32. … to summons witnesses (whether to produce documents or to attend) who belong to the staff of the agency (or, in a case of the present type, third parties with whom the agency has business relationships) has the potential to subvert the agency's ability to present its case, and introduce into the process persons who it could have called, but has chosen not to call. There would, we think, need to be strong reasons for allowing a summons to proceed to issue in those circumstances. There must be clarity as to the forensic purpose served by such a step. It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review (including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise. 33. It would, we think, ordinarily not serve any legitimate forensic purpose to allow a review applicant to call witnesses who are bound by the agency's position (its officers) or who support that position (the third parties). Those persons would often have knowledge of the content of the documents for which protection is sought, and there is a real danger that proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information. There might be a need to deal with hostile witness submissions. This all has the potential to make the proceedings more prolix. 34. Decisions allowing the issuance of summonses should be mindful, we think, of the emphasis in the NCAT Act on the adoption by the Tribunal of practices that facilitate the just, quick and cheap resolution of the 'real issues' in proceedings (s 36(1), the guiding principle), and 'are proportionate to the complexity of the subject-matter of the proceedings' (s 36(4)). (Emphasis added)
The Tribunal applied the reasoning in Lonsdale in a comparable case to the present matter in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95 (Choi) at [56]ff. In that matter, the Tribunal emphasised (at [22]) that the Appeal Panel "has held that there are sound reasons why an applicant should not be able to choose which officers from an agency should give evidence". The Tribunal emphasised (at [59]) that the "GIPA Act concerns 'government information' which means 'information contained in a record held by an agency' (s 4). A 'record' means any document, but 'knowledge of a person is not a record'." The Tribunal observed (at [60]) that the applicant's "principal object in seeking to cross-examine operational police was to conduct a de-factor review of the investigation that Police conducted" and that her "aim is to gather evidence from the witnesses she wants to cross-examine that … points to the existence of a record not disclosed by the Commissioner. She is on a search to see what she can find: a fishing expedition."
In Choi, the Tribunal held, relevantly: 62. Proceedings under the GIPA Act are concerned with the provision of government records: not information held in people heads and not information that is not found in a record. To attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v The University of Sydney [2009] NSWADT 230. (Emphasis added)
In Choi, the Tribunal stated (at [63]) that the fact that the applicant wanted or needed access to information that she asserted existed in a record, without more, does not constitute a legitimate forensic purpose.
The Appeal Panel refused the applicant leave to appeal (Choi v Commissioner of Police, NSW Police Force) [2020] NSWCATAP 211 and it stated, relevantly: 48. …As the Tribunal said, the GIPA Act does not give Ms Choi the right to request access to information that is in people's heads. The Tribunal went on at [62], to say that: To attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose.
These principles are consistent with the respondent's primary written submissions on the summons issue. In particular, the authorities concerning "collateral purpose" support the proposition that a person's "knowledge" is an irrelevant consideration in the GIPA context and that the focus of the Act, and proceedings under it, is on "records" as defined. In performing its obligation to undertake reasonable searches of records under s 53 of the Act, the agency's searches must be conducted using the most efficient means reasonably available to the agency: s 53(2). This is consistent with and supports the reference in the authorities to s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), and the "guiding principle" as powerful reasons tending against "allowing the issuance of summonses" in GIPA Matters: See Lonsdale at [43] and Danis v Commissioner of Police [2021] NSWCATAP 57 (at [66]).
Similar principles inform the determination of an objection to a summons. In CPJ v The University of Newcastle [2017] NSWCATAD 350 (CPJ), Deputy President Hennessy stated (ay [8]) that the guiding principle in s 36(1) of the NCAT Act applies when exercising the power to set aside a summons and that "a summons must only be issued for a legitimate forensic purpose" whereby, "the onus us on the party attempting to procure the material to demonstrate a legitimate forensic purpose" (at [9]). Hennessy DP affirmed the principle that "fishing" is impermissible, which in this context, means "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge" (emphasis added).
The respondent argued that the starting point is that directly applicable Appeal Panel authority stands against the applicant's requests for issue of the summonses in this matter. It argued that the applicant's course discloses a collateral purpose unrelated to the real issue in the proceedings.
In relation to three of the proposed witnesses, the applicant provided the following reasons for issue of the summonses: It is expected [the summonsed person] would be able to provide evidence about the first two engagements of Mr Stigter, the process that was undertaken and what documents were created to support these engagements. This would materially assist in identifying what documents may have been produced and where they may be located. (Emphasis added)
The applicant also asserted that two of the proposed witnesses have knowledge of the entirety of the engagement of Mr Stigter. In the case of another proposed witness, the applicant asserted that he "would have the requisite knowledge to provide evidence as to the correct process for the engagement of a consultant such as Mr Stigter at FRNSW, what documents should be created to support such an engagement and where they should be located. (Name provided) would likely have had oversight of this process when Mr Stigter was engaged" (emphasis added).
The respondent sated that Mr Hickey (one of the witnesses to whom a summons was issued) is an Information Liaison Officer and the delegate who made the decision dated 18 July 2023 (the subject of the current administrative review). Even though he provided a detailed statement as to the searches that he undertook, the applicant asserted that he "would have the requisite knowledge to provide evidence as to the searches that were undertaken". In a complaint letter to the respondent dated 21 July 2023, the applicant asserted that in undertaking searches, "it does not appear…have consulted these staff as part of their further searches. Given their involvement in this matter the [Union" state that this should have been done".
The respondent stated that the Tribunal should find that the applicant's reasons for issuing the summonses does not disclose a legitimate forensic purpose, but rather a collateral purpose that it inconsistent with the Tribunal's guiding principle and the requirements of the Act. Seeking to compel witnesses to give evidence as to the correct process for engagement of a consultant is not relevant to the administrative review of the GIPA decision. Further, the summonses fall within the definition of "fishing".
In any event, the summonsing of three to five witnesses is not proportionate to the subject matter (s 36(4) in GIPA proceedings concerning searches of records under s 53. The practical reality is that the matter could reasonably and proportionately be determined on the papers because the relevant issue is about the actual searches of record-keeping systems and files, and whether note searches should be done to comply with s 53.

Applicant's outline of submissions

In relation to the summons issue, the applicant filed written submissions on 4 August 2023. It stated, relevantly: 7. Accompanying each of the applications to the Registry for a Summons to be issued required the five named persons to give evidence in the substantive hearing of this matter is a short outline of the grounds for doing so (FB 143-138). The applicant relies upon these and also on paragraphs 9-17, 36-28 below. Three of the five persons (names provided) have direct knowledge of the engagement by FRNSW of Dr Stigter and/or his company, Critical Management, and/or had some role in the process of engaging or managing the engagement. (Name provided) and (Name provided) have signed documents which indicate clearly the existence of a contract document between FRNSW and Dr Stigter/Critical Management Group in the period prior to the one signed that has been disclosed., dated 18 October 2018. A fourth person, (name provided) is the head of the Finance function of the agency which was responsible for administering the engagement and effecting payment to Dr Stigter/Critical Management Group and would have had to have knowledge of the contract/s between FRNSW and Critical Management. The final potential witness is (name provided), who is the decision maker and who conducted the further searches pursuant to the s 65 order made by the Tribunal. His decision outlines what steps he took in conducting those further searches. His evidence will disclose in detail what searches he did or did not conduct.
The applicant also argued that the evidence of the proposed witnesses will bear directly on the issue before the Tribunal, namely whether the finding that the disputed information is not held is the correct and preferable decision based on all of the evidence before it.
In relation to applicable authorities, the applicant referred to the decision of Senior Member French in Ugur v Commissioner of Police [2022] NSWCATAD 396, as follows: 38. In Klaric v Commissioner for Police [2020] NSWCATAP 153 an Appeal Panel of the Tribunal considered the extent of the Tribunal's power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]: 33. The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. 39.The Appeal Panel in Wojceichowska v Commissioner of Police [2020] NSWCATAP 173 concurred with that statement, but added at [41]: 41. ... Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". … stating at [42] to [44]: 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies with the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act. 40. Section 105(1) of the GIPA Act provides that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.
The Tribunal adopted this approach in EHW (cited by the respondent) and also in Ooi v NSW Ministry of Health [2023] NSWCATAD 107 per Senior Member Bishop at [16], [22] Vogel v Secretary, Department of Education [2023] NSWCATAD 104, Senior Member Riordan at [29], [33], [34], [81]; Bolejko v Commissioner of Police [2020] NSWCATAD 173, Senior Member Ransome at [29], [39]; and Ugur v NSW Trustee and Guardian [2022] NSWCATAD 373, Senior Member Riordan at [82]; among other authorities. These principles should be applied in this matter.
The applicant argued that the Tribunal should not accept the proposition advanced by the respondent that the obligation under s 53 if the Act is an obligation only to search records as this places a gloss on the statute and obscures the true effect of the provision. While in most cases a search of records held will be necessary to find any of the information applied for that was held when the GIPA request was received, and it will be the most efficient means reasonably available to the agency, this may not be sufficient to constitute the totality of what are "reasonable searches" in a given matter. Section 53(3) of the Act states that the agency's obligation to undertake reasonable searches extends to searches using any resources reasonably available to the agency (emphasis added). The Act does not limit this to resources that facilitate the retrieval of information stored electronically.
The applicant argued that the respondent has not put forward any evidence to indicate that the disputed information has been lost to it and the disclosed information appears to indicate that there are places within the agency or persons employed within it, who are able to assist in the search. It stated, relevantly: 35. Contrary to the respondent's outline of submissions at 34, the Applicant does not seek to introduce irrelevant considerations, but seeks a further order pursuant to s 65 for the agency to fulfil its obligation to conduct reasonable searches by speaking with persons in its employ who have direct information of the contract which is sought in the application and, further, to speak with a key person formerly in its employ - all of whom are "resources reasonably available" to it…

Submissions of the Information and Privacy Commissioner

The Information and Privacy Commissioner filed written submissions on 3 August 2023. The Commissioner referred to the applicant's application to issue the summonses, and the respondent's objection to all summonses, as follows: The register of government contracts 23. Government contracts with the private sector are governed by Part 3, Division 5 of the GIPA Act. Mandatory disclosure of contracts valued at $150,000 or more is required under the GIPA Act. This division also requires an agency to maintain a register of government contracts differentiated into 3 classes of contracts. Classes of contract are distinguished by the total monetary value of the contract. 24. Accordingly, the value of the contract must be established to ensure the proper application of the legislative requirements which vary for each class of contract. Section 35 of the GIPA Act requires the publication of the contract register on the Government tenders website and prescribes a URL. 25. The respondent's bundle July 2023 at [81] refers to a quantum which may assist the Tribunal in ascertaining the class of contract in question and the applicable publication requirements under s 30 of the GIPA Act. 26. A notice of decision to refuse access to information issued under the GIPA Act must meet the requirements of s 61. In refusing to release information which is prescribed as mandatory open access as is the case with government contracts a notice may fail to meet the statutory requirements if the material facts and findings are not adequately traversed. 27. Further, the evidence provided by the applicant indicates that there were only two tenders following the respondent's request for quotes. This indicates a very limited market, and that fact would be material to the application of the public interest test under the GIPA Act. 28. In such a limited market, we would expect careful justification of the application of the public interest considerations against disclosure specified in clauses 4(c) and 4(d) of the Table to s 14 of the GIPA Act. The adequacy of searches 29. The respondent was required to undertake a reasonable search for information requested by an access application - s 53 of the GIPA Act. 30. It is reasonably clear from the applicant's correspondence that it believes that the contract between Dr Stigter and the respondent for the period 2016-2017 must exist and is held by the respondent. This does not appear to have assisted the respondent in finding the information. we note that there is no requirement that an applicant should actively satisfy the agency that they reasonably believe the information exists and is held by the agency - Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [38]. 31. The task for the Tribunal when reviewing a decision that the requested information is not held is helpfully set out at Wojciechowska at [44]. The five summons 32. On 27 July 2023, the applicant served summons for five witnesses. The applicant's reasons for requesting these summons are provided (respondent's bundle July 2023 at [134]). 33. The Information Commissioner does not oppose the service of the five summons and makes the following general comments. 34. Firstly, the Information Commissioner has a responsibility to champion and promote information access rights in NSW (above, [5]-[9]). In matters before the Tribunal which relate directly to such information access rights, we consider that the Information Commissioner is not constrained from providing argument on the merits of the application before the Tribunal. 35. Secondly, the valid issuance of a summons in information access matters is a matter of general import, both for the Information Commissioner and for the general administration of the Tribunal. 36. Thirdly, we note that the decision of the Administrative Decisions Tribunal in Roads and Maritime Services v AF; AF v Roads and Maritime Services (GD) [2011] NSWADTAP 63 (AF); and the more recent decision in icare v Webb [2023] NSWCATAP 192. These both concerned the valid issuance of summons in privacy matters. 37. The comments of the appeal panel in AF are relevant to the valid issuance of summons in information access matters, and provide at [42] that there must be some specified missing information: "There would need, as we see it, to be some anomaly apparent to the Tribunal on the face of those records before it would interest itself in the question of whether there are other records missing (and to which summonses may seek to go) from the material identified by the agency". We consider that in these circumstances, there is an anomaly and the applicant has clearly and repeatedly identified the records which it considers are missing. 38. Fourthly, we note the comments in AF about 'legitimate forensic purpose'. The onus is on the issuing party to identify a legitimate forensic purpose - Re Don [2006] NSWSC 1125 at [26]; Secretary of the Department of Planning, Industry & Environment v Blacktown City Council [2021] NSWCA 145 at 26. It appears to us that the applicant has done so, by the provision of detailed reasons (respondent's bundle July 2023 starting at [134]. Conclusion 39. The Tribunal has broad powers to refer any matter to the Information Commissioner where it considers that the determination of an access application by a particular agency might indicate systemic issues. 40. On its face, this matter raises issues regarding mandatory open access obligations and the disclosure of information as required by or under the GIPA Act. 41. For the reasons set out above, the Tribunal should remit the varied decision made on 18 July 2023, in order that the respondent can address the matters in paragraphs 23-28 above. As to the future case management of this proceeding, resolving the dispute about the five summon is likely to take up some time on 7 August 2023. The Tribunal may wish to re-list the matter for hearing…

Parties' openings

Mr Liu, Mr Searle and Ms Taylor made opening arguments that were consistent with their written submissions regarding the summons issue and for this reason, I have not set out their oral submissions in any detail in this decision.
Mr Searle also argued that the respondent had not filed any affidavit evidence in support of its case and that comments from the Bar table are not evidence.
In reply, Mr Liu observed that if the delegate had spoken to the persons to whom the summons were either issued, or sought to be issued, this dispute would not be before the Tribunal.
Mr Liu then stated that Mr Glenn Hickey, who is one of the recipients of a summons to give evidence, was in attendance and he sought to call him to give oral evidence in relation to the issue of "legitimate forensic purpose".

Oral evidence of Glenn Hickey

Mr Hickey was called and sword, He stated that he is an Information liaison Officer, Legal and Regulatory Services in the Office of the Commissioner and that he has held that position since October 2017. He said that he made the reviewable decision that is before the Tribunal and that he is well-experienced in responding to GIPA requests.

Cross-examination of Mr Hickey

Mr Searle referred the witness to his reviewable decision and particularly to bullet point 1 on page 74 of the respondent's bundle of documents (which set out the request for contracts relating to Dr Stigter) and to the final paragraph on page 74, where he stated: In addition to searches of the of the digital databases I have made inquiries of individuals within the organisation. I made enquiries through Human Resources and Organisational Development (HR&OD), the Information and Records Management Services Team (I&RMS) and the Strategic Procurement and Contract Services. Senior Members of each of those teams were provided with a copy of the application and asked to provide any documents that fell within the scope of the application.
Mr Searle asked the names of the individuals of whom he made enquiries. The witness replied that he consulted Dereck Oliver (HR&OD) and David Pallot (Contract Services) as David is responsible for managing records. He also consulted with Nick Alferis (Strategic Procurement).
Mr Searle referred the witness to the email from Mr Alferis dated 24 October 2022 (found at page 43 of the respondent's bundle of documents), in which he stated (in part): For the information relating to the engagement prior to the one undertaken by procurement you may wish to reach out to the old "PMO" section which is now part of the office of the Commissioner, I know the main person involved Michael Tyler is no longer working for us but Michelle Smith is still there she may be able to shed some light around if any contracts were signed before the procurement process we ran… All the information I will be providing is around the procurement process undertaken in mid-2018.
Mr Searle asked the witness if he reached out to the "old PMO" Section? He replied that this is "defunct" and that some parts of it went to the Executive Business Unit. However, he did not deal with Ms Smith.
Mr Searle referred the witness to pages 59 and 60 of the respondent's bundle of documents, which were the last 2 pages of the 2018 contract between the respondent and Dr Stigter, to which Michael Taylor was a signatory. I note that he also asserted that Mr Alferis was a signatory, but I note that this is not apparent from the document at page 59 of the bundle. He put to the witness that it would be reasonable to assume that they (he) had knowledge of the contract? The witness replied "yes", but he added that he did not have a great deal of knowledge of the contract process. He also said that he was aware that Michael Taylor had left the respondent's employ and that he did not know if he was still employed in the Public Sector. He stated that he did not take up the lead from Mr Alferis in October, but that his initial searches were conducted with the Executive Business Unit, although he could not recall why he did not reach out to Ms Smith.
Mr Hickey said that he sent out a generic email to all relevant teams to request information and that most of his initial searches were conducted by way of email communications and that he sends out a table for completion.
Mr Searle referred the witness to Appendix 1 of the applicant's application for issue of a Summons to Ms Michelle Smith and noted that page 2 of that document indicates that Ms Smith and Mr Alferis signed off on a briefing to the Commissioner to expand the Strategic Plan and Culture Program. He asked the witness whether he thought that Ms Smith and Mr Alferis would have known where the contract could be found? He said "no". He then asked whether the witness thought that he should maybe contact the signatories? He replied "No" and then stated that he did not have access to their databases.
Mr Searle asked the witness if he sent a request for information to Mr Lister. He replied to the effect that he would have done so, but that he did not recall receiving any response.
The witness was then excused from the proceedings, but he was subsequently recalled by consent to provide clarification on an issue that had arisen. The Tribunal informed him that he was under his prior oath.
Mr Searle asked the witness whether he agreed that it would have been reasonable to communicate with Mr Taylor and Ms Smith? He replied "yes".
The witness was again excused from the proceedings.

Applicant renewed the application for the issue of all summonses

Mr Searle renewed his application for the issue of all summonses to the proposed witnesses.

Application to issue summonses refused

The Tribunal formed the view that there was no legitimate forensic purpose in issuing the proposed summonses and stated that it would provide reasons in due course.

Parties' final submissions

Mr Liu stated that the Tribunal should focus on objective factual considerations and that the evidence indicates that the respondent conducted searches, located some of the contracts and that its searches were reasonable.
Mr Searle argued that there is no evidence before the Tribunal that reaching out to Mr Taylor, Mr Alferis or Ms Smith would have been difficult and that while Mr Taylor had left the respondent, Mr Alferis and Ms Smith were still employed by the respondent. He argued that the respondent should be required to take all reasonable steps that are available to it in order to locate the information that is the subject of the GIPA request.
Mr Searle concluded that the correct and preferable decision for the Tribunal to make is to remit the matter to the respondent under s 65 of the ADR Act, with a direction that it consults with Ms Smith, Mr Taylor, Mr Lister and Mr Alferis regarding the whereabouts of the missing contract and that it makes a further decision once those enquiries are completed.

Administrative Decisions Review Act 1997 (NSW) (the ADR Act)

The ADR Act 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
A "correct" decision is one that is rightly made, while preferable is apt to refer to a decision involving discretionary considerations: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 at [140] per Kiefel J.

The GIPA Act

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states: (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 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.
This object is amplified with a statutory command, contained in section 3(2), which provides: (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information: 5 Presumption in favour of disclosure of Government Information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1): 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. …
Part 2, Division 2, of the GIPA Act concerns the public interest considerations that are associated with access to government information. Section 12 in that Division provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.… (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. …
Section 13 contains the "public interest test" for determining if there is an overriding public interest against disclosure. It provides: 13 Public interest test There is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 14 contains public interest considerations against disclosure. It provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The Table 14(2) considerations that are in issue in these proceedings are: 3 Individual rights, judicial processes and natural justice: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information,.. 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests,
Section 15 sets out the principles that apply to the determination of the public interest. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [24]-[25], the Appeal Panel explained the approach to determining whether there is an overriding public interest against disclosure as a two-step process. The agency case for refusal must rely on one or more of the s 14 considerations. In so far as the considerations in the Table to s 14 are engaged, the Tribunal's task is then to weigh that case against the factors favouring disclosure mindful of the injunctions that appear in both ss 12 and 15.
Part 4, Division 3 of the Act sets out the process according to which an agency is to deal with an access application. Section 53 in that Division sets out the scope of an agency's obligation to search for information that falls within the scope of an access application. It provides: 53 Searches for information held by the agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial division of the agency's resources.
Section 54 sets out an agency's obligation to consult with relevant others in relation to an access application. It provides, relevantly: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that - (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information - (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or … (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. …
Section 55 in that Division provides that in determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take personal factors related to the application into account. It provides:
Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (b) deciding that information is not held by the agency, (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information,

Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)

Section 36 of the NCAT Act provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
Section 38 of the NCAT Act provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2) - (a) the Tribunal must observe the rules of evidence in - (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note - Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal - (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
In this matter the only issue in dispute is whether, in making the reviewable decision dated 18 July 2023, the respondent conducted reasonable searches as required by s 53 of the GIPA Act, in deciding that it did not hold "a contract or contracts in full for the past engagement of Dr Marc Stigter".
The respondent argued that it conducted reasonable searches for this information, but the applicant disputes this and much of the correspondence and submissions in this matter relate to this issue.
However, I note that the respondent simply sought to rely upon the reviewable decision, but it did not file any evidence from the decision-maker, or any other officer, regarding the searches that were conducted prior to making that decision.
The applicant applied to issue a total of five summonses to give evidence to officers (or former officers) of the respondent, including Mr Hickey (who made the reviewable decision). Its reasons for doing so were, effectively, that the proposed witnesses could reasonably be expected to have knowledge of the disputed contract and that the respondent had not made enquiries of them.
The Registrar issued summonses addressed to Mr Hickey, Mr Michael Taylor, Ms Michelle Smith, but refused to issue summonses to Mr Alferis and Mr Lister on the basis that there was no apparent relevant to the issues in dispute before the Tribunal.
While I note that the respondent called Mr Hickey to give oral evidence at the hearing, in cross-examination he conceded, and in my view rightly so, that it would have been reasonable for him to communicate with Mr Taylor and Ms Smith in relation to the searches that were being conducted. That evidence does not assist the respondent's case.
While I ultimately decided that there was no utility in issuing the remaining four summonses to give evidence, I did not do so on the basis that their issue offended the principles discussed in Lonsdale and Choi.
The respondent relied on Choi and argued that proceedings under the GIPA Act are concerned with the provision of government records and not information in people[s] heads and not information that is found in a record. However, in my view, the applicant's application to issue the summonses to officers (or former officers) of the respondent who might reasonably be expected to have knowledge of the disputed contract and/or potential knowledge as to its whereabouts, does not constitute an attempt to obtain information that is their heads.
I am satisfied that in this matter, in which the respondent did not file any evidence in support of its argument that it conducted reasonable searches to locate the disputed contract and noting the concession made by Mr Hickey that it would have been reasonable for him to consult with at least some of the potential witnesses to obtain further information that may assist in locating it, the correct and preferable decision would be for the Tribunal to remit the matter to the respondent for reconsideration under s 65 of the ADR Act.
I am also of the view that in completing the reconsideration, the respondent should make specific enquiries with all of the proposed witnesses with a view to obtaining information to assist it in searching for and locating the disputed contract.
In my view, to issue the remaining summonses would unduly complicate and prolong these and would be contrary to the Tribunal's guiding principle in s 36 of the NCAT Act.

Conclusion and orders

I make the following orders: 1. The decision under review is set aside. 2. The access application is remitted to the respondent under s 65(1) of the ADR Act for reconsideration. 3. The Respondent is ordered to make specific enquiries with Ms Smith, Mr Alferis, Mr Taylor and Mr Lister regarding their knowledge of the disputed contract and their knowledge of its possible location. 4. Upon completion of those enquiries, the respondent is ordered to conduct further searches for the disputed contract. 5. Within 4 weeks of the date of these orders, the respondent is to inform the applicant of the outcome of the reconsideration. 6. Within 2 weeks after that date the applicant is to advise the respondent and the Tribunal whether it wishes to: 1. Continue with the review of the varied or new decision; or 2. Withdraw the application for review. 1. The matter is listed for directions or dismissal on 13 November 2023 at 9:30am. 2. I grant all parties leave to appear by AVL at the directions hearing.

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

Amendments 26 September 2023 - Date of listing for directions or dismissal amended to 13 November 2023 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: 26 September 2023

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (17)