Fisher v Queanbeyan Palerang Regional Council

NCAT Administrative and Equal Opportunity|2022-01-18

REASONS FOR DECISION

By an application dated 11 March 2021, the applicant sought a review of a decision of the Respondent (the Council) made on 24 May 2021 under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), to refuse to deal with his access application.
After its initial decision to refuse to provide access to the information sought by the Applicant in his access application of that date, and following a review by the Information and Privacy Commissioner NSW in a report dated 22 July 2021, and a case conference in the Tribunal, the Council carried out a new review and in a decision dated 16 August 2021, decided to disclose the information that was within its possession, custody or control to the applicant on an informal basis. This decision superseded the decision that is the subject of the current application for administrative review.

Reviewable decisions

The Tribunal's administrative review jurisdiction to review decisions of an agency made under the GIPA Act derives from s 100, read with ss. 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and ss 7 and 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
In respect of the reviewable decisions under the GIPA Act, Part 5 provides for a number of potential reviews of decisions of an agency in respect of an access application. Relevantly, s 80 sets out what are "reviewable decisions" for the purposes of the Part and includes in subsection 80(d) a decision to provide access or to refuse to provide access to information in response to an access application.

Background

The access application sought information in eight categories, namely: (1) A copy of the communication had with John Barilaro and/or his officer, and communication had with Wendy Tuckerman and/or her officer, with Queanbeyan Palerang Regional council, in relation to Taradale Road (also known as Road 103). (2) A copy of the communication and information, and documents relied upon, and cited within Bill Warnes' letter dated 5 February 2020 to me and titled Taradale Road Issues. (3) A copy of the information for the conditional use of Taradale Road to permit the movement of stock on an annual basis at any length of the approximately 5.5 kms of the publicly used route. (4) The affirmed length of Taradale Road, for which the public have a right to use (not the graded (illegible)). (5) Details of the forth public gate, permitted or not, along Taradale Road. (6) A copy of Council's letter to the owner/owners of the forth date along Taradale Road from the Currawang Road end. (7) Information on the maximum width of towed agricultural machinery, or machinery, or vehicles that Taradale Road is classed to accommodate during daylight hours. (8) Information and action, resulting from John Fisher's complaint of repeated damage to gates by 4x4 vehicles. It is understood QPRC engaged SC J Fitzgerald as the recognise Local Police Officer, an as such, represents a public agency with observations inconsistent with criminal investigative powers, unless evidence and reports of damage were provided to QPRC, being the Local Authority for Local Roads, as such, having authority to exercise authority within that Act.
On 5 May 2021, the Council issued a Notice of Decision (Letter 1) and advised the applicant that his access application was "deemed refused", as it had exceeded the 20-working-day legislative timeframe to make a decision and that the processing fee would be refunded in full. It also advised him of his review rights under Pt 5 of the GIPA Act.
On 5 May 2021, the Council issued a Notice of Late Decision (Letter 2), to the applicant, which stated, relevantly: 3. Decision The Council has decided to refuse to deal with your application and all of your requests completely for the following reasons: (a) Please find attached a copy of the correspondence and a bundle of documents supplied to Goulburn Court (by our public officer Andrew Knight) in response to a subpoena request you made. I can confirm that most of the information requested has been either provided in compliance with the subpoena or other order or explanation given to the Court if an item was not available. Pursuant to section 60 (d) of the GIPA Act, the Council has decided to refuse to deal with your application. (b) I have reviewed Council records and I am satisfied that dealing with your application would require an unreasonable and substantial diversion of Council resources, and I note you have submitted multiple formal access applications which have gone through the review process internal and external review. The Council can consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. Pursuant to section 60 (1) (a) and section 60 (3) of the GIPA Act, the Council has decided to refuse to deal with your access application. The Notice also advised the applicant of his review rights under the GIPA Act.
On 6 May 2021, the applicant applied for an internal review of that decision.

The internal review decision dated 20 May 2021 On 20 May 2021, the Council issued a Notice of Decision to the applicant, which maintained its decision to refuse to deal with the access application pursuant to ss 60(1)(a) and (d) of the GIPA Act. In relation to s 60(1)(a), the Council stated that the applicant had previously lodged numerous formal access applications relating to the same matter, namely Taradale Road, dating back to 2017. These had been processed by the Council and some have been subject to internal and external review and dealing with repeated applications on the same matter would require an unreasonable and substantial diversion of Council resources. In relation to s.60(1)(d), it stated that many of the requested documents were produced in compliance with a subpoena served on it in September 2020. The Council also advised the applicant of his rights of external review and of the relevant timeframes.

Complaint to the Information and Privacy Commission and decision of the Information Commissioner dated 22 July 2021

On 22 July 2021, a delegate of the Information Commissioner wrote to the applicant, in response to his complaint (received on 10 June 2021). This indicates that the applicant complained about the Council redacting non-personal information included in the Agency's Disclosure Log in particular with reference to SF 170020/08 and that this breached s 25 of the GIPA Act. The delegate stated that in response to preliminary enquiries, the Council reviewed the particular entry on its disclosure log and had amended it to include the name of the Taradale Road. Its absence was a mistake and this has been corrected. The complaint was therefore finalised.

New decision dated 16 August 2021

Following a case conference in the Tribunal, the Council reviewed its previous decisions and on 16 August 2021, Mr Naghi sent an email to the applicant, which stated, relevantly: Thank you for your patience. Please kindly note I have had some success retrieving some of the documents and I also took the liberty of getting advice from the relevant Council Department Head and Service Manager in relation to the questions/issues you raised to I hope to your satisfaction. In relation to each of the outstanding requests, please see below and attached: 1. A copy of the communication had with John Barilaro and/or his office, and communication had with Wendy Tuckerman and/or her office, with Queanbeyan Palerang Regional Council, in relation to Taradale Road (also known as Road 103). Please find attached copies of the Council records as requested. 2. A copy of the communication and information and documents relied upon, and cited within Bill Warne's letter dated 5 Feb 20 to me and titled Taradale Road issues. Please find attached herewith a copy of the requested letter. 3. Details of the fourth public gate, permitted or not, along Taradale Road. The Council is not aware of any formal approvals for the existing gates along Taradale Road. An approval for the 4th gate is not required as it currently exists within a section of road reserve that doesn't have a formed road. Council does not inspect or maintain this section of unformed road reserve. Please kindly note that the responsibility to install, maintain and remove the gate falls to the applicant. Council will not fund public gates. Public gates are also not to be locked. 4. Details of the fourth public gate, permitted or not, along Taradale Road. The gate would be permitted by Council if it complied with the Roads Act requirements. The Council has very limited data and information in relation to this but is investigating this further. 5. A copy of the Council's letter to the owner/owners of the fourth gate along Taradale Road from Currawang Road end. Does not exist. Please see (4) above, 6. Information on the maximum width of the towed agricultural machinery, or machinery, or machinery or vehicle that Taradale Road is classed to accommodate during daylight hours. All general vehicles up to 2.5m wide are permitted to drive on public roads, including Taradale Road - including also on the section of public road that we don't maintain. Vehicles over 2.5m wide can apply for an exemption permit through NHVR, including Class 1 agricultural vehicles. 7. Information and action resulting from John Fisher's complaint of repeated damage to gates by 4x4 vehicles. It is understood QPRC engaged SC J Fitzgerald as the recognise Local Police Officer, as such, represents a public agency with observations inconsistent with criminal investigative powers, unless evidence and Page 1 of 4 reports of damage were provided to QPRC, being the Local Authority for the Local Roads, as such, having authority to exercise authority within that Act. Council searches were conducted. Please see attached. In terms of your question of the hierarchy, please note that Andrew us the Program General Manager in charge of Legal. I below him as the Legal Specialist (in-house counsel). Aiden is below me as the Legal Officer. On the basis this email, I wish to put forward a request in good faith for you to notify the Court that we have reached an agreement so this matter can be vacated.
On 16 August 2021, the applicant sent an email to Mr Naghi, stating relevantly: Sammy, Had a quick read of two files … Exactly what was the Council's communication with the two Ministers? I note Peter instructed so formal response to Ms Tuckerman. What exactly did Council write to them? Bill was in charge of Risk Management too, wasn't he, for sometime. Roads are a mix of asset & risk. A person wouldn't be entitled to plough up an 'unformed road reserve', because ambivalence about gates suggests an ok to bypass s.138 Roads Act 1993. Or an authority's ambivalence suggests an ok to moving wide machinery out of curfew times. You forgot to inform me, who filled the role held by Bill Warne? Or is he still engaged by Council?
On 17 August 2021, Mr Naghi responded to the applicant's email, advising that: (1) Mr Warne left the Council in July 2020 and that he has been replaced by Andrew Knight; and (2) He had saved the documents referred to under point (7) of his email dated 16 August 2021 as pdf's and asked the applicant "to outline which points below meet with your approval and which do not."

Procedural history of the matter

On 7 July 2021, the Information Commission advised the Tribunal in writing that he did not intend to appear or file submissions in the matter. On 19 July 2021, Senior Member Higgins conducted a directions hearing. The applicant was self-represented, but there was no appearance by the Council. The Senior Member ordered the Council provide the Registry with its contact details and listed the matter for a case conference on 26 July 2021.
On 21 July 2021, the Tribunal advised the Council of the application and of the case conference. In response, on 22 July 2021, Mr Naghi sent an email to the Tribunal, which stated, that the Council had not seen the application and that it was not properly served by the applicant. The Tribunal referred that email to the Senior Member for discussion at the Case Conference. On 26 July 2021, Senior Member Higgins made orders and directions regarding the filing and service of evidence and submissions and listed the matter for a further case conference on 13 September 2021.
On 13 September 2021, Senior Member Montgomery made further orders regarding the filing and service of evidence and listed the matter for hearing on 13 October 2021. However, on 8 October 2021, Senior Member Ransome granted a request for adjournment and listed the matter for directions on 26 October 2021 to determine a new hearing date. On 26 October 2021, Senior Member Ransome refused the applicant's applications to issue a Summons to Produce Documents to SC Joseph Fitzgerald and Collen Worth (General Manager of Upper-Lachlan Shire Council) on the grounds that the applicant was attempting to obtain documents that he believes exist and should be provided in response to his GIPA application. In essence he was fishing for documents and was seeking to circumvent the GIPA application by way of each summons.
On 26 October 2021, Senior Member Montgomery listed the matter for hearing on 18 January 2022.

The hearing

At the hearing on 18 January 2022, the applicant was self-represented and Mr A Turland, Legal Officer, appeared for the Council.

The evidence

The applicant relied upon his affidavits dated 29 August 2021 and 27 September 2021.
In his Affidavit dated 29 August 2021, the applicant stated, relevantly: 8. My request was for relatively recent events and discrete information incidental to: a. gates, b. length, c. Ministerial communication d. Letter from Bill Warne 9. 12.Dec.2019, Dwight Cosgrove, QPRC employee, emailed me in relation to damage being done to a public gate over Taradale that had been a feature for considerable time (100+ years). 10. Dwight Cosgrove advised of further events up to Apr. 2020, and feedback requested 8.May.20. 11. 10.Jan.2020, the Respondent delegated the investigation to a third party, NSW Police… 13. 5.Feb.2020 the Respondent sent me a letter from Bill Warne, Service Manager - Legal and Risk (Respondent's Annex 12). 14. The Respondent failed to address the matter put before it (pt. 4 above), and has provided no information in that regard. 15. The Respondent's letter (pt.5 above) contradicted records held by Council (land ownership and interests), asserts an expense to be undertaken that contradicts the Respondent being without any formal or universal Public Gate Policy, fails to denote road use is conditional or what those conditions are eg. Permit to Move Livestock, curfew pertaining to wide machinery movement, etc. The author does not state any Council site inspection or its engagement with relevant parties. The author doesn't note any report from any Council road crews at any time. 16. There are four public gates on the portion of Taradale Road currently within the respondent's boundaries… 18. Annex 7, in the Respondent's Bundle, appears to demonstrate diligence and compliance to requirements outlined (above) and in accordance the onus on transparency and good governance. 19. 18.Jan.2021 I contacted the Respondent seeking information informally, and was advised to email a formal application by Janine Keirs, Record Officer. 20. A formal application was made. I was handled by Mr Naghi who requested an extension, failed to engage me for any clarification, failed to yield a timely response. 21. A request was made for a refund, and for an internal review. 22. Mr Naghi made a late decision. The internal review appeared consistent with the late decision, and during which no clarification was asked from me… 25. An example of Annex 7, in the Respondent's Bundle, was not yielded in either the initial or internal review yet falls within my request. 26. An example of Annex 7 information was not mirrored or yielded at any time with the Respondent's communication had with NSW Police or Upper Lachlan Shire Council or other party/ies. 27. Communication had with NSW Police about damage to property, was extrapolated to becoming a three-way communication with Upper Lachlan Shire Council:'John' 'jlevien@upperlachlan.nsw.gov.au' Annex 9 of the Respondent's bundle 13.Feb.2020. 28. Prominent cameras were erected to detect and deter damage to the gates by myself, following advice from the Southern Region Rural Crime Commander for NSW Police. 29. I contacted two Ministers (Annex 13, Annex 11 from the Respondent's bundle). 30. The Respondent has failed to yield all communication had with Minister Barilaro, who wrote on three occasions to the Respondent. 31. The Respondent has failed to yield all communication from Council to the Ministers, which staff were directed to do. 32. In relation to annex 15, Respondent's bundle, that matter came about during a stated 'ongoing investigation' and which the chain of evidence preservation was to be preserved by: on-going investigation (email from the Police OIC); until exhaustion of consequences for pending Police Criminal Proceedings; for judicial proceedings for frustrating access to GIPA prior to a subpoena. Given related proceedings occurred in open court and my witnessing NSW Police selective approach to information were consistent to tailoring evidence, suppression of evidence, destruction of evidence (stated by Crown Solicitor), perversion of justice given IOC was in charge of provision of information and his own testimony was contradicted by direct documentation (per own Body Worn Video). If relied upon by the Respondent, I am entitled to issue summons to provide context to concern with that particular example of the State's management of information was substandard. 33. In relation to annex 4, concerns ignored by the Respondent were addressed by IPC, that is, over turning the redaction of "Taradale Road" being the name for a public road. 34. In relation to invitation to meeting, I didn't travel 1 hour for a meeting said to discuss 'issues had with Council' given concerns were discrete and confined to the failure to yield information irrespective to an extension, the internal review mirroring the late decision. 35. Mr Naghi employment as In-House Counsel and the Right to Information Officer for the Queanbeyan-Palerang Regional Council, therefore a senior staffer, currently reviewing the internal review. 36. The Respondent put on record its diversion of time and resources to research CaseLaw. There was a failure to comply with Orders directing submission on 16.Aug.20. There was effort in preparing the QPRC Skeleton Submission (Respondent's Bundle). 37. I have been without 2 weeks' time for the consideration of the Respondent's evidence….
In his Affidavit dated 27 September 2021, the applicant complained about the manner in which the Tribunal determined a previous GIPA application that he made to NSW Police and its use of "evidence in secret". However, those complaints are not relevant to the matter before me. Otherwise, he stated: … 7. Alleged reliance on inordinate resource allocation is something the Respondent had full control over given the statutory failure to process an Initial Request and subsequent Internal Review, or articulate such fees or charges to facilitate access. 8. The Respondent has not revisited the initial claim of excessive GIPA requests. 9.The Respondent did not engage me for clarification prior to the release of the Initial and Internal Reviews, instead raised concerns of setting aside legislative responsibility in preference for physical engagement not adopted during Covid concerns. 10. 17.Sep.2021 the Respondent paradoxically was critical of self-encouraged engagement with the Respondent's Representative, now curtailing communication in relation to proceedings suggestive of an adversarial approach less consistent with being a model litigant and bound by legislation and promoted values of transparency (attached). 11. 13.Octo.2021 the Respondent affirmed the threat, as a threat, to enact measures given the exercise of a right to press production currently before a judicial proceeding. 12. Same day, the Respondent stated production of the requested communication by Council with the Minister for Monaro (twice, the second time stated such presented as an attachment) and with the Minister for Goulburn (once). 13. I affirmed non-production of that (above). I note the Respondent was requested to provide information in PDF format and had previously tendered some information as EML format. 14. When challenged for production by the Member cited in point 12, the Respondent replied 'no comment' in contradiction to attesting existence of communication and production. 15. The Respondent's representative is a senior entrusted legal expert. 16. 13.Sept.2021 the Respondent affirmed retention of Bill Warne's emails in office and capacity exercised in accessing them. 17. 9.Dec.2019 monaro@parliament.nsw.gov.au affirmed making representation to the General Manager of Queanbeyan Palerang Regional Council. 18. 3.Dec.2020 monaro@parliament.nsw.gov.au affirmed making further representation to the Respondent. 19. 25.Mar.2020 monaro@parliament.nsw.gov.au affirmed receipt of communication had with Peter Tegart in relation to concerns made by me (ref.52.5.2-02) befitting the onus upon the General Manager. 20. 20.Feb.2020 ElectorateOffice.Goulburn@parliament.nsw.gov.au affirmed making contact with the General Manager and on 24.Feb.2020 affirming communication indicating the General Manager is on leave until the week's end. 21. The Respondent release indicated the General Manager's directive on several levels to communicate with the Member for Goulburn. 22. With respect to 'communications relied upon, and cited within Bill Warne's letter'… that letter construct has: a. relied upon being incidental to, connected with that letter, while cited within extends to reference to information as evidence for or justification of an argument or statement b. cited an alleged requirement extending to three gateways, denoting appearance c. reliance on a history of interactions with the NSW Police d. no indication of reliance upon any complaint made by a ratepayer or otherwise e. no indication of redaction, or third-party engagement prior to disclosure f. consistencies with reliance on delegated third-party investigation integrated with in-house legalistic letter that failed to afford prerequisite engagement g. inconsistencies with records maintained by Council eg. Titles for rating h. inconsistencies with having no public gate policies i. consistent with promotion of alteration of already over standard gate-widths at the bequest of SC Fitzgerald given affirmed multiple measurements j. inconsistencies with three Agency engagement for a matter isolated to QPRC k. consistencies with third-party Public Agency reliance external to Council l. overall consistencies with multiple informal interactions with SC Fitzgerald on various planes m. consistencies with engagement and consensus building with Upper Lachlan Shire Council (who ceded a portion of Taradale Road in 2006 by the Respondent) n. no information at all about 'gate damage' which apparently triggered engagement and involvement of SC Fitzgerald 23. Communication had with NSW Police about damage to property was extrapolated to becoming a three-way communication with Upper Lachlan Shire Council: 'John' '' Annex 9 of the Respondent's Bundle 13.Feb.2020. 24. The Respondent has not tendered information (mentioned above) supplied to Council before, or during, or subsequent to Bill Warne's letter to me, yet the engagement of didn't occur in isolation to that letter or subsequent need to clarify entries relied upon in Bill Warne's letter. 25. The Respondent has failed to yield or identify information that transpired in relation to gate damage by me, via 26. The Respondent has failed to yield transitional information that took 'gate damage' to 'gate modification' and illogical articulation of general road user rights for which I am well aware of. 27. Overall, the Respondent, failing to identify credentials of internal review being superior to that of the internal reviewer, and retention of the Internal Review has divested energies into an adversarial defence consistent with a disinclination to transparency.
The applicant annexed a letter from Peter Tegart, CEO of the Council, dated 17 September 2021. This addressed issues regarding the applicant's frequent contact with a number of senior staff members regarding Taradale Road. Mr Tegart stated that the Council "has been forthcoming and transparent in relation to the disclosure of documents held via the formal Government Information (Public Access) Act 2009 process and in the most recent NSW Civil and Administrative Tribunal (NCAT) Hearing which remains ongoing." He also stated, relevantly: The disproportionate amount of time and resources Council has spent responding to emails of a similar nature in relation to Taradale Road is not productive, or equitable to other ratepayers in the Local Government Area. The nature and tone of your emails is inappropriate. If you continue to behave in this way or in any other way that staff consider to be unreasonable, in accord with policy we will impose restrictions on your contact with our office… This email is also to advise you that individual Council staff have been advised to no longer respond to any emails you send directly to them to ensure accurate reporting, document storage and transparency. Please therefore only direct emails to the general Council inbox, namely, council@qprc.nsw.gov.au with attention to Caitlin Flint.
The Council did not file any affidavit evidence in the proceedings, but instead relied upon the documents contained in its bundles (x 2).

Submissions

In his oral submissions, the applicant complained that the Council "appears to have variable record-keeping with respect to its documentation and that it failed to produce documents regarding "the Ministerial" and he asserted that Mr Naghi during a case conference, told Senior Member Montgomery that he should have been provided with copies of the Ministerial documents."
The Council relied upon written submissions filed on 27 August 2021, which stated, relevantly: 14. It is noted that Mr Fisher's ground for this appeal are extremely confusing and are not in accordance with section 80 of the GIPA Act. It's still not clear to the Respondent what Mr Fisher's grounds for appeal are however we still have complied with all requests in good faith… 16. All the other points in Mr Fisher's formal access application have been dealt with informally. Please see attached. (Annex. 8 - 13). 17. The last point listed under the Applicant's grounds are about the disclosure log. This issue was dealt with by the PIC and no action was taken against QPRC (Annex 4). 18. Notwithstanding 11 above, the Council as soon as it received notification of these proceedings made arrangements for a cheque to be issued to Mr Fisher and this was delivered on Friday 23 July 2021 (Annex 5). 19. Mr Fisher is known to the PIC and the Council having lodged multiple GIPA applications, internal reviews, external reviews and even tried litigation with respect to a subpoena. All have resulted in lost time and crucial local government resources (Annex 6). 20. In the event this hearing is not vacated, and Mr Fisher's application is accepted as valid, please note I attempted twice to have a mediation with him and both times he refused or ignored my requests (Annex 16). 21. In the event that his grounds for appeal are valid, our contention is for the following reasons Mr Fisher be categorised as a vexatious litigant and it would take an unreasonable and substantial diversion of the agency's resources to deal with him (section 60(1)(a)). 22. As noted in the internal review, it was determined, under section 60(1)(a) of the GIPA Act to refuse to deal with the application for access to the information that is held by Council. 23. Section 60(a)(a) of the GIPA Act which states: "dealing with the application would require an unreasonable and substantial diversion of the agency's resources." 24. In relation to section 60(1)(a), I note that you have previously lodged numerous formal access applications relating to the same matter, namely Taradale Road, dating back to 2017. These have been processed by Council and some have been subject to internal and external review. Dealing with repeated applications on the same matter would require an unreasonable and substantial diversion of Council's resources. (Annex 7). 25. In any case, we now have informally during the course of these NCAT proceedings responded to Mr Fisher and all his requests in his formal access application and the grounds set out in his appeal. (Annex 8 - 13). 26. Please find attached a recent NCAT decision which I found today during my due diligence in preparation for this matter. Please note the name of the Applicant is Mr Fisher. This is a very long judgment and extraordinary to say the least as the grounds for appeal are almost identical and section 60 refusals to deal with him mirrors the current proceedings against the Council. I am bringing this to your attention (Member) in good faith. Mr Fisher has initiated with the Police (made a GIPA for almost the same documents they produced in a subpoena) and he was refused on the same grounds as QPRC's original decision and our internal review which affirmed this position. (Annex 15).
Mr Turland informed the Tribunal that Mr Warne did not leave "any accessible records" other than those which had already been informally produced to the applicant. He also stated that there are no hard copies of any "Ministerial" letters in Council's records, but that he requested copies of any such correspondence from Minister Barilaro's office on 12 January 2022. While no response has yet been received, he is prepared to facilitate informal access to the applicant if/when any response is received.
In reply, the applicant repeated that he rejects the Council's assertion that it does not hold any further documents of the type sought in the access application.

The legal principles

Section 3 of the GIPA Act sets out its objects, which are to open government information to the public, by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
Section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act: (s 80(c)).
The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and it may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
The Council bears the onus of proving that its decisions are justified.
In accordance with s 60 of the GIPA Act, an agency may decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(a) is relevant to this application and provides that an agency may refuse to deal with an access application where dealing with it would require an unreasonable and substantial diversion of its resources. In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the parties regarding the period within which it is required to be decide an application: (s 60(2)). Ordinarily, an agency must decide an application within 20 working days after it receives it: (s 57(1)).
In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel said at [43]: Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of (sic) deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) … Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1) …
The Appeal Panel went on to say that when reviewing a decision based on s 60(1) the Tribunal "should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources" (at [49]).
As to whether dealing with the application would require an unreasonable and substantial diversion of an agency's resources, ss 60(3A) and 60(3B) provide: (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law.
The matters which may be considered under s 60(3A) and (3B) are non-exhaustive and are drawn from previous decisions which determined the factors to be considered in assessing whether an application would require an unreasonable and substantial diversion of an agency's resources.
In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] (Cianfrano), which was a matter brought under the former NSW freedom of information legislation, O'Connor DCJ held that the relevant matters include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; … (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort … (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency's estimate as [to] the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency … (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
In Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 (Colefax), the Tribunal held that the Cianfrano factors are relevant to an assessment under s 60(1)(a) of the GIPA Act, although the changed context of the GIPA Act requires that discretions must be exercised so as to enhance its objects (s 3(2)(b)) and this could result in "differing weight and importance being accorded to the Cianfrano factors" (at [26]). Colefax also identified that the fact that an applicant is seeking their personal information is a relevant factor in the determination (at [27]).
The principles set out in Cianfrano and Colefax remain relevant in considering whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources: Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [18] (Ruyters). In that matter, the Tribunal held that the tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency's resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an application on the basis that it would require an unreasonable and substantial diversion of its resources (at [24]).

Consideration

The Council initially refused to deal with the access application on grounds that dealing with it would require an unreasonable and substantial diversion of its resources, because: 1. The applicant had made multiple formal access applications, which have gone through the review process internal and external review, and that it can consider 2 or more applications (including any previous application) as the one application if it determines that the applications are related and are made by the same person: ss 60(1)(a) and 60(3) GIPA Act; and 2. Most of the information requested was provided in compliance with the subpoena issued to it by Goulburn Local Court in proceedings 2020/00166806 and 2019/00400882, under cover of its letter to the Court dated 8 September 2020: s 60(1)(d) GIPA Act.
However, on 16 August 2021, following a case conference and before the hearing, Mr Naghi responded to the application by email and disclosed information and documents to the applicant on an informal basis. This was a new decision, which superseded the decision that is the subject of the application for administrative review. The nature of the new decision suggested that the Council no longer relied upon s 60 of the GIPA Act, but the parties' submissions were essentially focussed on s 60.
Given the nature of the Council's decision dated 16 August 2021, I am satisfied that the correct and preferable decision is to set aside the decision under review and to remit the matter to the Council for reconsideration under s 65 of the ADR Act. It will then be a matter for the Council to make a decision in relation to the access application in accordance with the relevant principles set out in the GIPA Act.

Orders

I make the following orders: 1. The decision under review is set aside. 2. The access application is remitted to the Council under s 65 of the ADR Act for reconsideration. 3. Within 4 weeks of the date of these orders, the Council is to inform the Applicant of the outcome of the reconsideration. 4. Within 2 weeks after that date the Applicant is to advise the Council and the Tribunal whether he 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 8 April 2022 at 9:30am. 2. I grant all parties leave to appear by telephone on the next occasion.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2022

Administrative Decisions Review Act 1977(NSW)

Freedom of Information Act 1989(NSW)

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (3)

Cited By (1)