Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 | Case summary

Judgment (7 paragraphs)

[1]

REASONS FOR DECISION

On the Federal Highway between Goulburn and Collector in New South Wales, there is a right hand turn onto Taradale Road, which runs between the Federal Highway and Currawang Road to the south east for close to 8km. The Applicant's property, Taradale, is located about half way down Taradale Road. The Applicant's family, the Fishers, have owned land there for more than a century.
Municipal responsibility for Taradale Road has shifted with recent council amalgamations. The 2004 amalgamation of Goulburn City Council and Mulwaree Shire Council and the 2016 amalgamation of Queanbeyan and Palerang Councils have created some confusion as to which local government entity was, throughout the years, responsible for record keeping, surveys, upkeep and maintenance of Taradale Road.
On 10 February 2017 John Fisher (Applicant) sought access to the following information from Goulburn Mulwaree Council (Respondent), pursuant to the Government Information (Public Access) Act 2009 (GIPA Act): All information regarding Taradale Road also numbered 103 when within Mulwaree Shire being before of control given to Palerang Council and so recorded in Council maps. Road 103 also known as Spring Valley - Collector Rd; (Galvin's) Spring Valley - Milbang Road; Spring Valley - Taradale Road. 1970 - up until ceding to Palerang. Details of any surveys done to said road. Council to & from Government or Local Government bodies communication about said road. Wishing to view or have copies of this road being on Council Road Network Mapping. Details of major expenditure. Details of any approved DAs accessing of the said road. Details of any requests or objections to any part of said road. P.S. Have access Library maps.
On 14 March 2017 the Respondent decided to release information under s 58(1)(a) of the GIPA Act, consisting of two records: an undated plan reconstruction on Taradale Road, and a Schedule of Roads from Mulwaree Shire dated 2 June 1999. The Respondent declined the Applicant's request for a discount on processing charges for the application. The Applicant requested an internal review of the decision on 20 March 2017 which was completed by the Respondent on 18 April 2017. On 18 May 2017 the Applicant sought external review of the Respondent's decision by the Information and Privacy Commissioner (IPC). On 27 July 2017 the IPC reported its findings that the Respondent's decision was not justified, and recommended it make a new decision by way of internal review.

Consideration

The Respondent submitted that the Applicant had not discharged his onus of demonstrating reasonable grounds for believing there was additional information within the scope of the access application which was not provided to him.
The Applicant submitted extensively on the reasons for his belief that the Respondent held more records than it had provided to him in response to his access application. These submissions included: 1. His personal and familial knowledge of the importance of Taradale Road throughout the 1900s as a significant access road in the region; 2. His personal and familial knowledge of published surveys, records regarding road expenditure and access issues relevant to Taradale Road in the period 1970 to 2004, including a major highway upgrade in 1980, and the payment of moneys to Mulwaree Shire Council to be held in trust for certain access points along the road; 3. On the basis that a staff member of the respondent, Dwenda Lewis, had stated that the oldest map of the relevant road network was dated 1965, there must also be more recent maps held by the Respondent. Despite Ms Lewis' statement, the oldest (and only) map produced by the Respondent was dated to 1999. This indicated that there are more maps held by the respondent which have not been provided; 4. The Respondent has obligations under the State Records Act 1998, Local Government Act 1993, NSW Public Sector Code of Conduct and the Ombudsman's Good Conduct and Administrative Practice Guidelines for Public Authorities to create and maintain records which would include those sought in his access application; 5. The Respondent has obligations under s 163 of the Roads Act 1993 as the local authority for roads, and whilst the Respondent had claimed to have dispensed with these obligations, its "physical activities indicate otherwise", with reference to the identification by NSW Spatial Services of "two places where the road crosses into GMC zoning"; 6. The Respondent had accepted the Applicant's access application with a request for a significant fee for production of documents, when only two documents were ultimately provided, which indicated that it had more records which it did not provide; 7. The Respondent had recently conducted roadworks along Taradale Road, indicating to the Applicant that they still retained some responsibility for the road and therefore would retain relevant records to those works; 8. The transfer of an asset, being Taradale Road, from one local government entity to another would generate documentation of that transfer, yet none was provided. Further, the Respondent had not provided any support for its claims that the information sought by the access application had been transferred by it to another local government entity, if those records were previously but now no longer held; 9. The Applicant's GIPA requests to the two other local government entities had each produced more and additional records than the Respondent, yet the Respondent had (on its own position) authority for the road from 1907 to 2004, the longest period of time.
The Applicant's reasons and submissions were provided, for the most part, as assertions without probative evidence; however he did provide the Tribunal with the following documents to support his submissions: 1. An email to the Applicant from Spatial Services NSW dated 26 February 2017 identifying that three local councils, being Queanbeyan - Palerang, Upper Lachlan, and Goulburn Mulwaree, "could be involved with Taradale Road", further stating that "Spatial Services shows Taradale Road mostly within Queanbeyan-Palerang Council though it wanders in two small sections into Goulburn Mulwaree"; 2. A copy of a letter dated 2 March 1993 to his father from C R Wotton, Shire clerk/ General Manager on Mulwaree Shire Council letterhead, stating: Receipt is acknowledged of your letter seeking the upgrading of the Spring Valley Road at an early date. Your request has been considered by Council and I have to advise that two minor pipe culverts will be installed when plant and equipment are next in the area; 1. A copy of a letter dated 26 July 1993 from Louise Maroya, Councillor, on personal letterhead to his father, stating: re: Taradale Road I spoke to Robert Mowle, Shire Engineer, regarding the dangerous state of your access road. A number of points emerged from that interview: a) The culverts will be put in place at the time when Currawang Road is upgraded, before the end of the year. b) Concerning the 400 metres stretch - you should obtain a costing from the Shire and you will be charged a proportion of the total cost. c) Alternatively you can do the job yourself, provided it's done to Shire's standards, and if you take out public liability insurance for that 400m section. 1. Excerpts compiled by the Applicant from information received by him, including from NSW Online road naming system which held the name 'Taradale Road' in its database; from the digital topographic database showing a spelling change from Tarradale Road in 2010 to Taradale Road; a photo of the street sign identifying 'Taradale Road' claimed to have been taken during "the topographic field completion trip of the Goulburn Mulwaree LGA on 14/07/2010"; 2. A copy of a road map using numbers as road identifiers, marked with the Respondent's name and logo, including a road marked '103' branching off a road marked '90', and accompanying table dated February 2009 identifying road 103 as 'Taradale Road' at A6 of the map. Although provided following the conclusion of the hearing, I grant leave and accept this evidence as relevant to the Tribunal's determination;
In Stanley the Tribunal determined that the Applicant had raised valid queries about missing emails and attachments to emails, and set aside those parts of the respondent's decision that dealt with them. As discussed in Stanley at [57]: It is for the applicant to identify the reasonable grounds for such a conclusion. As was said in Camilleri, "It is not enough for the applicant to merely assert non-compliance on the basis of general distrust of the agency". The question is whether the agency's conclusion that it does not hold the information requested is sound. Describing its role in Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52, the tribunal said, "All that the tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches...." The present case is not unlike Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56, in which the President commented that "What I have before me is a deep-seated distrust of the respondent on the part of the applicant [and] instances of further documents being located after additional searches...."
To determine whether the Applicant's beliefs are "reasonable", the Tribunal has to assess the strength of evidence supporting the Applicant's suspicions. With reference to the beliefs expressed at 19(1) and 19(2) above, I accept that the Applicant has formed certain beliefs as a result of his personal and familial relationship with the land in and around Taradale Road due to his family's ownership and residence on that land. On the basis that the Applicant has supplied relevant correspondence between the Respondent's predecessors and his father which support those beliefs, I consider those beliefs to be reasonable, and I afford them reasonable weight.
With reference to the Applicant's belief expressed at 19(3) above, the Respondent has provided evidence from Dwenda Lewis, an employee who conducted some of the searches for the Applicant's access application, and who also responded to an email from a "Leo Muter" in January 2017. In that email, Leo Muter asked Ms Lewis: Would you indicate the age of the oldest map held by Goulburn Mulwaree Shire? Would you indicate the oldest map of the road network as held by Goulburn Mulwaree Engineering Department?
Ms Lewis responded: The oldest map held by Council is a plan for the town of Goulburn, 18 July 1833. This is held in the Goulburn Mulwaree Library. Please refer your enquiries to the library. The oldest map of the road network as held by Goulburn Mulwaree Council Operations department (previously known as Engineering) is a road map of Mulwaree Shire from 1965. I am satisfied that I have answered your inquiries. Please forward and further enquiries/requests for information to the Council email address [Goulburn Mulwaree Council request email]. As you can appreciate Council received numerous enquiries/requests for information and these need to be assessed and allocated to the appropriate area of Council for action. Council has limited historical records of this nature and therefore I suggest as per previous correspondence that you utilise the service of other entities available online. Perhaps a visit to the local Land & Property Office and the Goulburn Mulwaree Library may be more conducive to the nature of your enquiry.
Ms Lewis stated that because Leo Muter's request was an "informal enquiry", not a GIPA request, she had approached an unnamed member of the Respondent's Operations department in person ask "what is the oldest map of the road network held by your department?", who told her "I think I recall one from 1965". She did not actually conduct any searches for road network maps held by the Operations department.
Ms Lewis was informed in April 2018 that Leo Muter was a pseudonym used by the Applicant. The Applicant's use of a pseudonym to request information from the Respondent in the context of his various inquiries indicates a "general distrust of the agency" of the type contemplated in Camilleri, however this does not preclude him from forming a reasonable belief where there is other evidence to support those beliefs. Although obtained in an unusual manner, the information provided by Dwenda Lewis provides supporting evidence for the Applicant reasonably holding the belief that there were maps as old as 1965 being held by the Respondent's Operations department. The Applicant was unaware, until Ms Lewis' affidavit was filed in late July 2018, that she had not actually conducted the inquiries to support the information she provided to him via his pseudonym.
The Applicant relied on the Respondent's various statutory obligations to keep and maintain records to support the reasonableness of his beliefs expressed above at 19(4). These statutory obligations are addressed, in part, in the affidavit of Maria Timothy, Business Manager of the Respondent's Governance unit, which addresses the council amalgamations, archiving and document storage practice, practices for responding to public access to information search queries, and the Respondent's dealing with the Applicant's access application, including the specific searches and investigations conducted. The Respondent's submissions also address its statutory obligations and their limitations.
The Respondent's evidence expressed that "sourcing historical records can be difficult due to differences in past record keeping practices", which I accept. Difficult does not equal impossible, however, and the GIPA Act makes specific allowance and reference to those difficulties, bearing in mind the history of archiving and record keeping by government entities in New South Wales over the decades. There were historical record keeping practices in place prior to the enactment of the State Records Act 1998, pursuant to the Archives Act 1960. Those obligations increased with amendments to the Local Government Act in 1985, the publication of The General Records Disposal Schedule for Local Government in NSW in 1988, and significant amendments to the Local Government Act and Freedom of Information Act in 1993: see C Hurley, "From dustbins to disk-drives: a survey of archives legislation in Australia". In S McKemmish & M Piggott, (Eds) "The Records Continuum: Ian Maclean and Australian Archives First Fifty Years" (1994), Australia: Ancora Press; S Mowbray and S McCausland, "Archives and Local Government-the ASA NSW Branch Local Government Archives project" (1992) presented at the ASA (Australian Society of Archivists) National Conference at Wagga Wagga.
It was reasonable for the Applicant to believe that the records he was seeking were and should have been held by the Respondent pursuant to those obligations.
The Respondent's evidence and submissions with respect to the Applicant's belief outlined at 19(5) above were to the effect that responsibility for Taradale Road had been ceded or transferred to the Queanbeyan-Palerang Regional Council at the time of the merger in 2004 between Mulwaree Shire Council and Goulburn City, which ultimately became the Respondent. It stated, therefore, that the Respondent was not the relevant roads authority pursuant to s 163 of the Roads Act 1993, and therefore did not have an obligation to keep records of that road. The respondent did not provide any objective evidence supporting the transfer of this specific road as part of the council amalgamation in 2004, such as the records of transfer required by s 150 of the Roads Act 1993.
The Applicant has insisted throughout his correspondence with the Respondent and these proceedings that despite the Respondent's denial of responsibility for Taradale Road, the Respondent continued to be the relevant roads authority for parts of Taradale Road. His belief was supported by his personal viewing of roadworks being conducted along Taradale Road by the Respondent's employees or subcontractors (referred to at 19(7) above), and the provision of those documents referred to at 20(4) and 20(5) above.
Following the hearing, the Respondent provided to the Applicant and Tribunal an additional document it had located in its files, containing references to Tarradale Road. The Respondent stated "Council confirms that this document was discovered by accident, in a location that should not have held records of this nature". The Respondent made no concessions resulting from the location of this additional document that its prior evidence and submissions regarding its lack of authority for Taradale Road were incorrect, although it did withdraw its application for costs against the Applicant. The document provided to the Tribunal on 16 October 2018 from the Respondent consists of three typed pages, and I will refer to it as the "Amalgamation Document". The first two pages are a table titled "affected by amalgamation" with columns titled "Name (Origin) Map Ref", "Rd Length", "Length Lost", "Remaining GMC". At page 2 of that table, under the subheading "Eastern Capital City", there is a fifth column which is untitled. Contained within that table is the following information: Name (Origin) Map Ref Rd Length Length Lost Remaining GMC 103 Tarradale Rd (90) B12 3.63 3.00 0.63 unsealed

The third page of the document contains an alphabetical map reference table for "Mulwaree Shire Council", although it includes a date stamp at the bottom "Updated 12/10/2018". Included in the table is an entry for "103 Tarradale Road (90) B12".
According to the Applicant's evidence, which is unrefuted by the Respondent, Tarradale Road underwent a name change in 2010 to Taradale Road. The information contained in the document provided by the Respondent on 16 October 2018 would therefore be capable of the inference that, at least in respect of Taradale Road, it predates 2010. The Respondent stated in its correspondence to the Applicant that "it appears to be relevant of the amalgamation of Council with Queanbeyan Palerang Regional Council (QPRC) and Taradale Road. Council cannot state the date of the document with any certainty, however suspects that it was created on or around May 2004".
The amalgamation referred to as the title for the first two pages of the document is inferred to be the 2004 amalgamation and renaming of local councils in the area, on the basis that the local government entities in the document include "Upper Lachlan Council", "Eastern Capital City" and "GMC". Eastern Capital City Council was renamed to be Palerang Council in 2004. Upper Lachlan Council was formed in 2004 from parts of Mulwaree, Gunning and Yass Shire Councils. GMC is the abbreviation for Gouburn Mulwaree Council, the Respondent. I find as a result of my reading of the document and consideration of the evidence provided by the Applicant that it is probable that the Respondent did retain authority for a portion of Tarradale Road following the 2004 amalgamation, despite its evidence and submissions to the contrary. The Applicant's beliefs expressed at 19(5) and 19(7) are reasonable.
With reference to the belief expressed by the Applicant at 19(6) above, the initial estimate provided by the Respondent allowed for approximately four hours of searching. That only two documents were ultimately located and produced in response to the Applicant's access application does result in a conclusion that the Respondent had more records which it did not provide. I do not consider the Applicant's belief in this respect reasonable.
Regarding the transfer of the Respondent's assets expressed as a basis for the Applicant's belief at 19(8) above, the Respondent has not provided the Tribunal with evidence of its processes and procedures in transferring assets, so it is difficult for the Tribunal to determine which documents may or may not have been created, maintained and stored as a result. It has, however, provided the Amalgamation Document which provides support for the Applicant's belief that the transfer of assets would have created documentation which was not, at least initially, provided to him. Although the Respondent claims the Amalgamation Document does not fall within the scope of the Applicant's GIPA request, it is difficult to understand how this is correct when the terms of the access application request "all information regarding Taradale Road also numbered 103 when within Mulwaree Shire being before of control given to Palerang Council and so recorded in Council maps", and the Amalgamation Document is undated but clearly refers to Palerang Council's predecessor, Eastern Capital City. I find on that basis that the Applicant's belief expressed at 19(8) was reasonable.
I do not consider the Applicant's belief as expressed at 19(9) to be reasonable. The fact that other local government entities may have produced more documents in response to the Applicant's requests for information than the Respondent does not mean that the Respondent has additional documents which it has not produced to the Applicant.
Having found that, for the most part, the Applicant's belief that the Respondent held more records than it had provided to him in response to his access application was reasonably held, the Tribunal is tasked with determining whether the efforts made by the Respondent to locate the information have been reasonable in the circumstances of the case.
The Respondent provided evidence from Maria Timothy of its archiving and document storage practices, and evidence from both Maria Timothy and Dwenda Lewis of the searches it conducted. Miriani at [30] (as discussed above at 17) provides guidance for the relevant considerations: 1. the clarity of the request; 2. the way the agency's record keeping system is organised; and 3. the ability to retrieve any documents that are the subject of the request, by reference to: 1. the identifiers supplied by the applicant or 2. those that can be inferred reasonably by the agency from any other information supplied by the applicant
The Applicant sought to clarify his request via correspondence with the Respondent, which initially narrowed and then later attempted to broaden the parameters of the request. I accept the Respondent's submissions that the Applicant's request was broad and lacked clarity, and that his attempts at clarification traversed matters outside the scope of the access application and the scope of the Respondent's record keeping. However the request and subsequent correspondence from the Applicant was sufficient for the Respondent to understand the types of information or documents the Applicant was seeking, the timeframe of the request, and the topics or matters included in the request. Although the timeframe of the request, from 1970 until 2004, was lengthy, it was clear enough from the request and following correspondence, which explained why the information was sought for that period. Although inelegantly stated, the access request sought information with sufficient clarity for the Respondent to identify what it needed to look for in its records and archives.
According to Ms Timothy's evidence, the Respondent's record keeping system involves: 1. Electronic locations: Council's Electronic Data Records Management System; the Access Database; Parish Cards; 2. Hardcopy Mulwaree Shire Development files, including map cabinets and Council basement archives.
Ms Timothy's evidence addresses the Respondent's current record keeping systems, and does not deal with any systems in place prior to her employment by the Respondent in 2012.
Regarding the identifiers used in the searches, although Ms Timothy gives evidence of personally conducting searches, the only specific details of keyword searches, file reviews conducted and time spent are by her colleagues, Dwenda Lewis and Vivienne Flanagan. Ms Lewis records approximately 3.5 hours spent, identifying the following searches conducted: Access Data base & Parish Cards Looking for any approved Developments on Taradale Road • 5893 Federal Highway Collector (Palerang) Exempt development not applicable to GIPAA; • Lot 5 DP 598710 - Mooney - Subdivision - past property; • Lot 5 DP 113445 - Mooney - Subdivision - past property; • 6332 Federal Highway - Palerang; • 5796 Federal Highway - Palerang; • 2388 Currawang Rd - Palerang; • Ray Mooney - Subdivision - 24/1/976 - unable to locate; • Clarevale - 24/1/882 - Unable to locate Mulwaree Shire Development Files from 1974-2000 Magiq searches Mulwaree Shire Spring Valley & Collector Roads Milbang, Spring Valley & Taradale Roads Closure of Crown Roads Looking for any reference to Operations major expenditure Any approved DA's accessing Taradale Road IT - Michael Dillon Established location of properties along Taradale Road and any connection to Federal Highway. Used Mapping to establish location of road reserves and Crown Land. Historic mapping to indicate any realignment of Taradale Road. All properties with the exception of one are located in Queanbeyan Palerang Regional Council Operations Assisted Vivienne with Scanning of 2 road maps
Ms Flanagan's search list was annexed to Ms Timothy's affidavit. She recorded an initial 30 minutes spent to determine the scope of the search, and then a further search of 1.5 hours, identifying the following searches conducted: Identify Road with Land and Property Information Services mapping data Search Magiq files • Taradale • Spring Valley • Collector • Milbang • Road 103 • Fisher - John • Parish of Currawang + road • Parish of Tarago + road • File Transfer + Palerang Council • File Transfer + Taradale Search map cabinets and scan large format maps • Mulwaree Shire road network • Road 103 • Taradale • Spring Valley • Milbang • Collector • Parish of Currawang, and • Parish of Tarago Search Index of former Mulwaree Shire Files Search basement • General search for any unlisted files • Mulwaree Shire Miscellaneous boxes - nil relevant • Taradale Road (103) - empty file
Considering the breadth of keywords used, including "Collector", "parish of Currawang", "parish of Tarago" in the context of the Respondent's location, it is difficult to understand how no documents were identified as a result of the searches conducted by Ms Lewis and Ms Flanagan, save the two maps which were provided to the Applicant.
One explanation available by inference is that the keyword searches used did produce documents, but whoever was conducting the search determined, for unknown reasons, that they were not relevant to the Applicant's request. In correspondence with the Applicant dated 16 April 2018, the Respondent states that "the information regarding Mooney K, Mooney R, O'Brien A subdivisions and communications with Mooney G, Mooney J regarding road and signage does not fall within the scope of your request" and "Documents evidencing communication in relation to the amalgamation of GMC, again, do not fall within the scope of your GIPA request". There is no evidence as to who made those determinations on relevance or the basis for those determinations. Where the access application specifically requests "Details of any approved DAs accessing of the said road. Details of any requests or objections to any part of said road", information regarding specific subdivisions and communications regarding road signage could reasonably be considered relevant. There is no evidence from the Respondent explaining any determinations of relevance with respect to the scope of the access application.
An alternative explanation is that the Respondent's record-keeping and storage practices do not categorise documents by keywords for the purpose of electronic searching, or other identifiers for the purpose of manual or hardcopy searching. Or, that the Respondent has simply not kept any of its records prior to 2004, and has not kept any record about what, in fact, it did with its records in 2004, other than assertion of "documents transferred to new Council entities". There is no evidence from the Respondent of which files were transferred to which entity on which date; which files were destroyed on which date; whether and to what extent documents stored in its electronic system are classified and categorised for searching, access and retrieval. The respondent's evidence does not assist the Tribunal in determining which possibility is correct.
The Respondent's Governance Unit receives and processes all requests for information, including GIPA requests. Neither Ms Timothy nor Ms Lewis were employed by the Respondent prior to the amalgamation in 2004, and it seems Ms Timothy's knowledge of the Respondent's record keeping practices and procedures is limited to her employment, from 2012. Whilst she has given evidence that Governance staff may consult with other business units within Council to assist in determining the nature and/or location of the information, only Ms Lewis seems to have engaged in any such consultation. Ms Lewis stated "I personally conducted searches that included the operations department, consultation with IT, the Access database and Parish cards" and "I understand the operations staff worked for Council in its previous iteration as "Mulwaree Shire Council" prior to amalgamation in 2004. They could not help me locate any earlier maps". Those searches are identified above at 43 and provide a limited scope for understanding what specific inquiries were made of any individual other than "Michael Dillon" in IT, how those inquiries were relevant to the access application, whether any documents were located and if so, why they were discounted as not being relevant to the access application.
The Respondent submits that, pursuant to s 53(2) of the GIPA Act, it has undertaken extensive searches in the most "efficient means reasonably available", including three employees utilising key words searches, searching electronic and physical databases, and inspecting physical archives stored in the basement. I accept that the searches conducted were undertaken in the "most efficient means reasonably available" but question whether the Respondent has, in fact, undertaken "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 Respondent's evidence and submissions focussed on the underlying fact that authority for Taradale Road was ceded or transferred to Palerang Council in 2004. Therefore, according to the Respondent, all information pertaining to Taradale Road would have been transferred to Palerang Council. However, the Amalgamation Document demonstrates that the Respondent retains authority for part of Taradale Road, and the Respondent has not provided any evidence supporting its statement that all information or documents pertaining to Taradale Road would have been or were transferred to Palerang. In the absence of supporting evidence from the Respondent, the Tribunal does not accept that all documents pertaining to Taradale Road were, in fact, transferred to Palerang Council in 2004.
The Respondent submits that "it has searched all reasonably available databases, both electronic and physical, to which it has access. GMC confirms it retains and eventually destroys documents in accordance with the State Records Act 1998". I accept that submission and infer that documents relevant to the access application may have been destroyed by the Respondent. It may also be inferred that the Respondent doesn't actually know what happened to the relevant documents, as records regarding their transfer or destruction were not kept, are missing, or were destroyed, as submitted by the Respondent that "GMC cannot attest to the record keeping practices maintained by councils before the introduction of modern records keeping guidelines, such as those provided by the State Records Act 1998. In these circumstances, it is not unreasonable to imagine the requested documents may have been transferred without record or cannot be accounted for today". Whilst I agree with the conclusion, I disagree with the premise. As discussed above, the State Records Act 1998 was not the first introduction of record keeping obligations for local government authorities, and the Respondent should be able to attest to the record keeping practices in place at the time of the amalgamation in 2004.
Section 53(4) of the GIPA Act states that "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." Whether or not those documents were destroyed in accordance with the State Records Act 1998 and the Respondent's established record management procedures is difficult to ascertain as there is no evidence provided by the Respondent on the specific destruction or transfer of specific records. Nor is there any evidence provided as to whether and to what extent any electronic backup systems or additional archives are held or maintained by the Respondent.
The Respondent cannot produce information or documents requested under the access application which it does not hold, regardless of the reason why it does not hold them. However, I do not agree with the Respondent's submission that the "only possible measures GMC could go to would be to consult other councils, make applications on its own behalf to other entities, or to manually review decades of archived documents in boxes in the hope that documents relevant to Mr Fisher's request had been mislabelled". Ms Lewis provided evidence of consultations with the operations department and IT, but those consultations were extremely limited and the evidence provided of their results (or lack thereof) was minimal. Section 53(3) of the GIPA Act specifies that the Respondent's obligation to undertake reasonable searches extends to searches using "any resources reasonably available to the agency". In circumstances where the internal consultations were limited and the Respondent's Operations Department staff "worked for Council in its previous iteration as "Mulwaree Shire Council" prior to amalgamation in 2004", it would be reasonable for the Respondent to engage with both its IT and Operations Department staff more comprehensively to ascertain how and where to locate the information sought, or records evidencing when it was transferred or destroyed. I do not agree that those additional searches would constitute an "unreasonable and substantial diversion" of the respondent's resources. As a general rule, requests involving more than 40 hours of work by an agency are likely to involve "an unreasonable and substantial diversion of resources", as O'Connor P pointed out in Cianfranco v Premier's Department [2006] NSWADT 137. The Respondent's evidence indicates less than six hours have been spent conducting searches pursuant to the applicant's request.
Describing its role in Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52, the tribunal said, "All that the tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches....". The question is whether the agency's conclusion that it does not hold the information requested is sound. On my consideration of the evidence, I do not agree that the Respondent's conclusion that it does not hold any further information requested under the access application is sound. It may not ultimately hold any further information, but there are other reasonable searches and inquiries it should undertake before that conclusion is made.
The following additional inquiries and searches should be conducted by the Respondent prior to it concluding that it does not hold any further information requested under the access application: 1. Consultation with its IT department to assist the Governance department in identifying and conducting the relevant searches in response to the access application, via keyword or otherwise, in the Respondent's electronic record keeping systems (past and present); 2. Consultation with its Operations department to assist the Governance department in identifying and conducting relevant searches for maps and surveys including Taradale Road / Road 103 in the period 1970 - 2004.
The Respondent should also clearly identify whether and to what extent any documents are located from its searches, and if it determines those documents do not fall within the scope of the access application, the reasons for that determination.

Fisher v Goulburn Mulwaree Council

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Judgment (7 paragraphs)

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