Fisher v Upper Lachlan Shire Council

28 February 2020 - Determination of Mr Johnson in regard to the applicant's 2018 access request

1. On 28 February 2020, the Council provided the Tribunal and the applicant with a copy of its decision in regard to the applicant's access request. Bruce Johnson (Mr Johnston), the then Manager of Finance & Administration of the Council, made the decision on behalf of the Council. In his decision, Mr Johnston noted that his determination related to the access application the applicant had made in November 2018, which listed eleven items of information, which included the abovementioned nine categories. That application also had a protracted history, as explained by Mr Johnston in his determination.
2. Attached to the decision of Mr Johnston is a Schedule of the documents held by the Council that contained the information for which the applicant sought access in his 2018 access request. There are 83 documents listed on the Schedule, in respect of which Mr Johnson found that: 1. sixty two (62) documents had already been released to the applicant; 2. five (5) documents were out of scope; and 3. sixteen (16) documents were withheld on the grounds of legal professional privilege: GIPA Act, s 14(1) Sch 1 cl 5(2) (i.e. information for which there is a conclusively presumed overriding public interest against disclosure).

10 March 2020 case conference - remittal of decision for reconsideration

1. The applicant's application came before the Tribunal, on 10 March 2020, at a case conference where the Tribunal made a number of consent orders including: 1. …[the] Notice of decision dated 28 February 2020, respondent's file ref: F10/1030, becomes the deemed decision in response to the GIPA Act application dated 23/12/2019 thus enlivening administrative review jurisdiction. … 4. … the decision by Upper Lachlan Shire Council to provide access to information made on 28 February 2020 is returned to Upper Lachlan Shire Council for reconsideration. By 14 April 2020 Upper Lachlan Shire Council is to tell the Tribunal and all other parties whether the decision has been affirmed, varies or set aside and if there is a new decision. By 21 April 2020 John Fisher is to tell the Tribunal and all other parties whether they are continuing or withdrawing the application.
2. I understand that in consenting to the orders made, the applicant agreed to abandon his 2018 access request and press his more recent 'streamlined' access request that was made on 19 November 2019 and then re-submitted on 23 December 2019.
3. On 20 April 2020, the Council provided the applicant with some additional information, but no further decision was made on re-consideration.

21 April 2020 case conference

1. On 21 April 2020, at a further case conference, the Tribunal made orders for the filing of evidence and submissions by the Council and the applicant as the applicant pressed his application for administrative review. The applicant and the Council provided affidavits and statements in accordance with those orders: see at [22] above.

29 June 2020 hearing - further remittal of decision for reconsideration

1. On 29 June 2020, the matter came before me for hearing. Both parties appeared by telephone. After hearing from the parties I also made an order remitting the 28 February 2020 decision of the Council for reconsideration and listed the matter for further directions on 2 September 2020.

3 August 2020 - Determination of Mr Croke on reconsideration

1. In accordance with the orders I made, on 5 August 2020, Mr Croke, on behalf of the Council, provided the applicant and the Tribunal with a copy of his decision, on reconsideration, that is dated 3 August 2020. Attached to that decision is a Schedule that lists 115 documents the Council had determined to contain information falling within the applicant's 2019 access request. Against each document listed in the Schedule the following information is provided: 1. a description and date of the document, 2. the subject matter of the document, 3. where the document was located within the Council's record keeping system, 4. whether the document was out of scope, withheld, or released (including previously released) to the applicant. Four (4) documents were found to be out of scope, no documents were withheld, seventy one (71) documents were identified as having previously been released to the applicant in earlier proceedings before the Tribunal and the courts and the remainder of the documents for which a decision had been made to grant the applicant access to the information in these documents. In regard to the documents that had been previously released to the applicant, Mr Croke determined not to provide the applicant with a further copy as he was not required to do so under the GIPA Act; and 5. the specific paragraph of the applicant's access request to which the information in the document related to.
2. In his decision Mr Croke set out what systems and places had been searched for the information sought by the applicant. Mr Croke also identified, for each item in the applicant's access request, the document number(s) that may contain the information relevant to that item.
3. In response to the decision of Mr Croke, on 10 August 2020, the applicant sent an email to the Tribunal and the Council expressing concern about not being provided with a copy of the information he had been given previously. The applicant also asserted that the following information was 'critically absent' from the decision of Mr Croke: a. No information of communication to/from Joseph Mooney, and his representatives, in particular to his efforts to 'lock out' and obstruct use of regard to his efforts 'to lock out' and obstruct use of [Taradale Road] b. No information from Phil Newman/ULSC that demonstrated Council's awareness of the route taken by Taradale Road c. No information of Mays Lane status and response to RTA d. No pre-2012 maps capturing this route of Taradale Road e. No information for Bruce Johnston's 2019 affirmation of the route & state of Taradale Road

2 September 2020 directions hearing

1. On 2 September 2020, the matter came before me at a directions hearing. At this directions hearing, the applicant pressed his application in respect of the 'critically absent' information that he asserted the Council must hold. In light of this, I made orders for the applicant to provide written and detailed particulars of the information he asserted the Council held but had failed to locate. I also made an order that the Council provide a written response to the particulars and evidence provided by the applicant.
2. In accordance with the orders made on 2 September 2020, on 21 September 2020, the applicant provided the Tribunal and the Council with an affidavit, dated 14 September 2020, in which he set out the information he asserted to be missing and the background underlying information of this kind. I have dealt with this material in more detail below.
3. On 1 October 2020, Mr Croke, on behalf of the Council, provided the Tribunal and the applicant with a 'Notice of Decision' in response to the applicant's abovementioned 'critically absent' information. In that decision, Mr Croke again identified the systems on which further searches were conducted and noted that six (6) additional documents had been located falling within category (b) of the applicant's asserted 'critically absent' information. Mr Croke also determined to grant the applicant access to the information in these documents.
4. On 7 October 2020, Colleen Worthy (Ms Worthy) the General Manager of the Council provided the Tribunal and the applicant with a written response to the applicant's 14 September 2020 affidavit. In that response, Ms Worthy said that the Council held a strong belief that 'no benefit or additional information or evidence will result from a formal NCAT Hearing' and request that the matter be determined on the papers: NCAT Act s 50(2).

8 February 2021 directions

1. I listed the matter for further directions on 8 February 2021 to ascertain whether the applicant sought to press his application in regard to the Council's response to his asserted 'critically absent' information and whether he objected to the matter being determined on the papers.
2. The applicant did press his application and agreed that the matter was suitable for determination on the papers. In light of the position of the parties, I was also satisfied that the matter was suitable for determination on the papers and made an order dispensing with a hearing and noted: The parties agree that the only remaining issue is the information identified by John Fisher in his email of 30 August 2020 and the 1 October 2020 decision of the Upper Lachlan Shire Council that it does not hold the information identified in para (a), (c), (d) and (e) of John Fisher's email. In that decision, the Upper Lachlan Shire Council decided to grant John Fisher access to further information that had been found to fall within para (b) of John Fisher's email. However, John Fisher asserts that not all information has been provided.

The applicant's case

1. In his affidavit of 14 September 2020, the applicant gave the following examples of what he asserts to be 'critically absent' information in Mr Croke's 3 August 2020 determination: 1. information about the 2006 status of Mays Lane - in this regard the applicant noted that in a document, dated 29 March 2011, which he received from the Council (document 88), there is a reference to 'RTA's question about the status of May's Lane' as to whether it is a 'public road or other classification of land'. The applicant asserts that the Council has failed to locate and provide him with a copy of its response to RTA's question, including any map or road registry relating thereto; 2. records of communications with or from Mr Mooney or any representative of Mr Mooney - in this regard the applicant noted that the Council had been called upon to intervene on a number of occasions when Mr Mooney had locked and obstructed access off the Federal Highway onto Taradale Road, yet no information was located; 3. no graphic information (e.g. map) of Taradale Road (or Mays Lane), or the route taken by Taradale Road (or Marys Lane) that predates the Road Network linked on the Council's website. The applicant noted that the Council website is based on 2010 data which denotes Taradale Road and Mays Lane as being an 'unsealed road'. Yet the 2014 Collector Topographical Map (an open source document) denotes it as a continuous through road from Currawang Road to the Federal Highway; and 4. no graphic information of the route for Taradale Road, before, or as a consequence of the 2006 Local Government Area Boundary adjustment. The applicant noted that: The public status of Taradale Rod, in particular the portion through Mooney's … has been confirmed by Goulburn Mulwaree Council, who held the length of the road for 97 years, in a legislative instrument and in record keeping in accordance to s 163 Roads Act 1993 which the respective road authority MUST keep. Further, the passing on the same portion to the Respondent in 2006 has been attested to by the Queanbeyan Palerang Regional Council to a Member of Parliament inquiring on my behalf. … [the] Respondent denies Taradale Road to the EPA. And the Respondent has failed to supply me with an Evidentiary Certificate for the same (there is no road), which is a notably discrepancy, notable that the Respondent has had had ample agitation and demonstrated a capacity to engage with other Agencies in order to make a determination. The Respondent's failure to issue an Evidentiary Certificate per Roads Act 1993 in denying Taradale Road underpins the Respondent holds information that affirms Taradale Road. The same information existed in 2006 …
2. The applicant also questioned the respondent's claim of privilege to the extent it includes a report of a Mr Woods who was given the task of investigating Taradale Road.
3. While the applicant asserts that the Council has failed, unlike its neighbouring Councils, to meet its obligations under the Roads Act 1993 (NSW), this is not an issue the Tribunal has any jurisdiction over. As I explained to the applicant a number of times, in this application, the main issue is whether the Council does hold the 'critically absent' information he has identified.

Council's case

1. In his decision of 3 August 2020, Mr Croke said that a 'thorough' search of Councils records had been undertaken to identify the information the applicant had asserted to be missing. In this regard he said that the following record keeping systems of the Council had been searched: - Council's Electronic Document Management System (EDMS); - Key Council staff e-mail account (current and former employees) (Emails); - Elected Councillors e-mail account (Emails); - Development Application Files (DA Files); - Corporate hard drive (Corporate Drive); - Council Meeting Business Papers (Council Meeting Business Paper); - Council hard copy records repository.
2. I note that, in his decision of 1 October 2020, Mr Croke said he made the same 'thorough' search on the same systems for the 'critically absent' information identified by the applicant. As I have already noted, during that search, six additional emails were located, five of which were those of Mr Newman (the applicant's category (b) information). In his decision, Mr Croke explained that these emails were on Mr Newman's corporate email account, which he should have registered onto the Council's Electronic Document Management System. Hence, due to the large volume of data on Mr Newman's corporate email account they had not been located initially.
3. As noted above, for each of the nine items listed in the applicant's access request, Mr Croke listed the documents (i.e. the document number on the Schedule) that 'may relate' to the item. With the exception of items 3, 7 and 8, Mr Croke did not include any further explanation of his findings in the body of his decision.
4. Under the item 3 heading (Road 103, Taradale Road, as identified by Mulwaree Shire …), Mr Croke said: … [Council] does not hold information pertaining to the former Mulwaree Shire Council. Upper Lachlan Shire Council was proclaimed on 11 February 2004 and the new Council contained only a small portion of the former Mulwaree Shire Council constituting equivalent to 24% of the former Shire in land area. However Documents 7, 21, 25, 41, 59, 68, 74-75, 80, 90, 108-112 and 114-115 may relate to this item.
5. Under the item 7 heading (information from Council to individuals, and representatives (including legal, and experts), and agencies regarding publicly used thoroughfare through 2541/1116965, including all information promoting it as private), Mr Croke said: The Schedule of Documents contains details of the information Council holds related to [item] 7. Information the Council holds in regard to the above information requested has been correspondence between yourself and Council via your previous access application(s), Court related cases or emails to Council requesting the same. Documents 1, 7, 21, 24, 28, 32-33, 35-36, 38, 59, 62, 70-72, 75, 80, 83-87, 92-93, 97-100, 104 and 108-115 may relate to this item.
6. Under the item 8 heading (Joseph Mooney, and his representative/s, and agents, as well as from others, in relation to all objection, and representations, and actions opposed to public awareness, and use for any road within or in the near vicinity of 2541/1116965 (be that for a public highway identified as LB.95.679, and Road 103 Mulwaree Shire, Spring Valley-Taradale Road etc), Mr Croke said: … [Where] Council holds documentation communicated with its lawyers in relation to seeking or obtaining legal advice, that information is the subject of legal professional privilege and is not being sought by you and is 'Out of Scope' for the purpose of this application. Council does not have any road names registered within its Local Government Area that can be identified as 'Road 103' or 'Spring Valley-Taradale Road'. Council does not hold information pertaining to the former Mulwaree Shire Council. However, documents 2-21, 59, 77-79, 108-112 and 114-115 may relate to this item.

Consideration

1. While I am not critical of the applicant, in my opinion, his access request covers a wide range of information and is not easily understood. Having carefully examined the material before the Tribunal, I understand more fully the nature of the information sought, which in my view the applicant has not been able to articulate with sufficient specificity, which is understandable given its complexity. I am also aware that the applicant has had ongoing concerns about the conduct, or lack thereof, of the Council in recognising the status of that portion of Taradale Road that runs through the Mooney's land and in its dealings with the actions of Mr Mooney in excluding public access through that portion of the Road that adjoins onto the Federal Highway. However, as I have already explained, these concerns are not a matter relevant to this application, other than providing an explanation as to why the information is being sought.
2. While the Council has at no time indicated that the applicant's access request covers a wide range of information, or that it is difficult to understand. At the same time the Council, in particular Mr Johnston and Mr Croke, appear to be well aware of the applicant's ongoing concerns. This however, should not influence how an access request is to be dealt with. As I have noted on many occasions an access application is to be dealt with in an abstract manner and where the information provided by an access applicant is cumbersome and not easily understood as to the specific information sought, it is incumbent on the public sector agency who is in receipt of the access application to explain this to the access applicant and assist him or her in clarifying the nature of the information sought: GIPA Act, ss 41(1)(e) and 52. Where the public sector agency fails to do so, it will be difficult for it reject a subsequent access application that is very specific in its terms of the information sought: see GIPA Act, ss 58 (1)(e) and 60 (1)(b1).
3. In this case, the Council does not contend that the 'critically absent' information to which the applicant refers is information falling outside the scope of his access request. As I have already noted, the Council has located and provided the applicant with the information to which he referred at para (b) of his email of 10 August 2020: see at [47] above. This leaves the information in para (a), (c), (d) and (e) of that email.
4. For abundant caution, I reiterate, that while the information in issue is the information that the applicant asserts to be missing, it is the 3 August 2020 decision of the Council that remains the decision the subject of review, namely that it does not hold any further information.
5. As the respondent has not contended that this information falls outside the applicant's access request, on the material before the Tribunal, I find that the Council has made a decision that it does not hold the information as identified by the applicant in para (a), (c), (d) and (e) of his 10 August email. As I have explained, it is this decision that is the subject of review in this application.
6. It is has long been accepted that when reviewing a decision of an agency that it does not hold the information sought, a relevant factor to be considered is whether the agency has complied with the obligation imposed on it under s 53 of the GIPA Act.
7. Until recently, the Tribunal accepted a two-step approach to determining this issue: see Cianfrano v Director General Department of Commerce [2006] NSWADT 195, at [69]. Step one in that approach required the access applicant to place some credible material or submissions before the Tribunal to establish that there was an arguable case that further documents existed. It was only when the applicant had put such material before the Tribunal that the second step was engaged (i.e. whether the search efforts made by the agency to locate the information was reasonable).
8. This was the approach initially followed in these proceedings.
9. However, in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (published on 21 August 2020), at [39], the Appeal Panel (Principal Member A Britton) found that this approach was inconsistent with s 105 of the GIPA Act. As I have noted, on administrative review by the Tribunal, that section places the onus on the agency to establish that its decision is justified.
10. In Wojciechowska, at [34] to [39], the Appeal Panel noted that the two-step approach had arisen in the context of the now repealed Freedom of Information Act 1989 (NSW) (the repealed Act). The Appeal Panel noted that the repealed Act did not make provision for determining an access application on the grounds that the agency did not hold the information sought. Nor did the repealed Act contain a provision equivalent to s 53 of the GIPA Act.
11. At [44], the Appeal Panel summarised the Tribunal's approach (i.e. task) in reviewing a decision of an agency, that it did not hold the information sought (i.e. s 58(1)(b) of the GIPA Act), as follows: (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.
12. It is accepted that this is the correct approach.
13. In this case, the information sought by the applicant is historical. The only 'evidence' of what searches were conduct by the Council is that which is contained in the 28 February 2020 decision of Mr Johnston and the 3 August 2020 and 1 October 2020 decisions of Mr Croke. Mr Croke also made a brief mention of 'extensive searches of Council's Electronic Document Management System, including staff e-mails, Development Applications and corporate hard drive' in his affidavit of 9 June 2020.
14. Mr Johnson and Mr Croke both identified the electronic systems of the Council that were accessed to search for the information requested by the applicant. Mr Croke also noted that Council Meeting Business Papers and hard copy records repository were searched. Based on the information contained in the Schedule of documents attached to the decisions of Mr Croke, no relevant information was found in the hard copy records repository of Council. The majority of the information relevant to the applicant's access request was located in documents on the Council's Electronic Document Management System (EDMS). Twenty six documents (26) (including the six emails subsequently located by Mr Croke) were located on the e-mail account of current and former employees of the Council, four documents (4) were located on the Council's Corporate Drive, six documents (6) were located on the Council's Development Application files and one document was located on the Council's Meeting Business Paper file.
15. However, the question remains whether the Council has taken sufficient searches, in accordance with s 53 of the GIPA Act to locate the 'critically absent' information as asserted by the applicant.
16. The fact that the Council only received a portion of the local government area of the former Mulwaree Shire local government area does not, in my opinion, impact on the Council's obligation to undertake reasonable searches as required by s 53(2) of the GIPA Act. However, as I explained to the applicant, while there might be an expectation or obligation that a public sector agency holds the specified information for which access is sought, and the public sector agency fails to locate that information in dealing with the access request, this does not automatically mean that the public sector agency has failed to comply with the requirements of s 53(2). On the contrary, it can also mean that the public sector agency does not hold the information, which is a decision that is open to the public sector agency to make under s 58(1)(b) of the GIPA Act regardless of whether there is an expectation or obligation on that agency to have and hold such information.
17. Nevertheless, as I have already stated, the principal matter for determination in this application is whether the Council has undertaken reasonable searches, using the most efficient means available to the agency for the information that the applicant asserts to be the 'critically absent' information in paragraphs (a), (c), (d) and (e) in his 10 August 2020 email.
18. Paragraph (a) concerns the information that is a communication to/from Mr Mooney, and his representatives to 'lock out and obstruct the use of'' Taradale Road that runs through his property.
19. In this regard, as noted above, in the information released to the applicant as a result of Mr Croke's 3 August 2020 decision, is a letter, dated February 2012, from Mrs Mooney's solicitor, the then owner of the land through which Taradale Road ran, to the then Roads and Traffic Authority (RTA) opposing the use of Taradale Road, a Crown Road, as the access road for the proposed subdivision and development of the land lots that adjoined her land lots. In the same document bundle (i.e. document 70) provided to the applicant is a further letter from Mrs Mooney's solicitor, dated 5 April 2012, addressed to the Council, indicating that the Transport, Road and Maritime Services (formally the RTA) supported the use of Taradale Road as the access road and seeking the Council's advice about Mrs Mooney's prospect of subdividing a section of her land. The applicant has not identified a response to this letter as falling within the 'critically absent' information. Nor would the response appear to be relevant as there is no reference to the Road being gated to refuse public access.
20. The applicant has not explained when he first raised an objection to Council about the Mooney's closure of the portion of Taradale Road that runs through their land. However, document number 71 (also released to the applicant in August 2020) is a letter, dated 9 February 2017, from the Council's solicitor to the applicant concerning his 'enquiries concerning a gate' constructed on the Road at the northern end and adjacent to the Federal Highway. In that letter, the Council said it was unaware of that gate, or that it had received an application to construct a gate or close the road. The Council went on to say that it did not propose to take any further action in regard to the gate.
21. I note from the Schedule of documents attached to Mr Croke's decision of 3 August 2020, document number 70 and 71 were located on the Council's Electronic Document Management System as were a number of other documents which appear to relate to the same concerns raised by the applicant around the same time.
22. On the material before the Tribunal, the requested communications to/from Mr Mooney, and his representatives in regard to the 'lock out and obstruct the use of'' that portion of Taradale Road running through his property would have been made in recent years as the dispute over this portion of the Road did not arise until after 2012. Such communications I accept would be recorded in the electronic systems identified by Mr Johnston and Mr Croke. Hence, in the absence of the applicant having provided a specific time when these communications are alleged to have occurred, I am satisfied that the Council has conducted its searches for the for the 'critically absent' information identified by the applicant in paragraph (a) of his 10 August email by using the most efficient means reasonably available to it, and on being so satisfied I find that the Council does not hold any further information in regard to communications to/from Mr Mooney, and his representatives to 'lock out and obstruct the use of'' Taradale Road.
23. I make a similar finding in regard to the information concerning the status of Mays Lane and pre-2012 maps capturing the route of Taradale Road through Mr Mooney's property. As I have pointed out above, the Council has provided the applicant with access a number of documents containing information about Mays Lane and the relevant section of Taradale Road. That information I note primarily relates to the 2011 Development Application for the subdivision and development of land lots that surround the land lots owned by Mr Mooney.
24. I appreciate that the applicant's access request sought information about the status of Taradale Road and Mays Lane that dated back to 2002 and 2006. However, he has not identified what information is missing, other than that surrounding the 2011 Development Application, which I note from the information released to the applicant was initially lodged in 2002. Whether that also involved Taradale Road and Mays Lane has not been made clear. However, in the absence of the applicant specifying otherwise, I am satisfied that the Council has conducted its searches for the 'critically absent' information identified by the applicant in paragraph (c) and (d) of his 10 August email by using the most efficient means reasonably available to it, and on being so satisfied I find that the Council does not hold any further in regard to Taradale Road and Mays Lane.
25. Finally, I do not understand what information the applicant asserts to be mission in paragraph (e) of his 10 August 2020 email. I assume it is information that supports an affirmation made by Bruce Johnston in 2019.
26. I note that the Schedule attached to the 28 February 2020 decision of Mr Johnston lists 16 documents that is identified as correspondence between the Council and its solicitors, Pikes Verekers Lawyers, dated in September and October 2018 and again in August to 12 September 2019, for which there is a claim of legal professional privilege. That is, in his decision, Mr Johnston, determined to withhold the information in these documents on the grounds of there being a conclusively presumed overriding public interest against disclosure: GIPA Act, s 14(1) and Sch 1 cl 5.
27. I assume that the information in these documents came into existence during the time the applicant's proceedings against the Mooney's and the Council before the Supreme Court. In any event, Mr Croke expressly made his determination on the basis that the applicant did not press access to this information. Again, whether the applicant does now press access to that information in part, for example information relating to a report of Mr Woods concerning Taradale Road is not clear.
28. In any event, for the purpose of determining this application, which excludes consideration of the information for which privilege was claimed by the Council, I am satisfied that the Council has conducted its searches for the 'critically absent' information identified by the applicant in paragraph (e) of his 10 August email by using the most efficient means reasonably available to it, and on being so satisfied I find that the Council does not hold any information 'for Bruce Johnston's 2019 affirmation of the route & state of Taradale Road.'

Conclusion and Orders

1. For the reasons set out above and based on the findings I have made, I am satisfied, on the material before the Tribunal and the applicable law, that the 3 August 2020 decision of Mr Croke, on behalf of the Council, is the correct and preferable decision and should be affirmed.
2. Hence I make the following order: 1. The decision of the Council, made on 3 August 2020 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 18 March 2024 - date in para 12 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: 18 March 2024