The Applicant seeks certain information from the Respondent concerning his children and himself. He applied for that information under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The Respondent refused his application. The Applicant seeks review of the decision refusing his application.
[2]
Background
In April 2018, the Respondent served on the Applicant an interim apprehended domestic violence order which had been sought and obtained by his former wife.
The Applicant made a number of access applications under the GIPA Act, seeking information from the Respondent concerning information they had about the Applicant and his children. They included access applications made on 9 October 2018 and 30 June 2019. Decisions determining these access applications were made by the Civil and Administrative Tribunal ("Tribunal") in various proceedings which are ongoing.
The Respondent on 7 February 2020 provided the Applicant with, among other things, a redacted bundle of reports. That bundle was provided to the Applicant again on two separate occasions on 16 January 2023 and 28 February 2024.
These proceedings arise out of a further access application made by the Applicant on 3 November 2023 ("Access Application"). The Respondent acknowledged that the Access Application was valid. Following correspondence between the Applicant and the Respondent, on 23 November 2023, the Applicant narrowed the scope of his access application. The scope of the Access Application, as narrowed, was an application for:
"All information held by the NSW Police Force between the Applicant's last GIPA access application on 8 May 2017 for COPS information that only concerned themselves until the present ("the Requested Time"), that covers the Applicant and the Applicant's children …. either each on their own, in combination or in aggregated, for the following:
(1) COPS Events during the Requested Time For each of the specified people;
(2) CAD logs related to the COPS Events during the Requested Time for each of the specified people; and
(3) Information contained, held or stored in the Records Management System during the Requested Time for each of these specified people, excluding previous GIPA application folders….."
On 5 December 2023, the Respondent refused to deal with the Access Application as amended on the basis that it would involve and require an unreasonable and substantial diversion of the Respondent's resources. Alternatively, the Respondent refused to deal with the Access Application in respect of certain "COPS Event Reports". These had already been provided to the Applicant on a redacted basis. Refusal was sought to be justified on the basis that the Respondent had already dealt with this information in a previous application and there were no reasonable grounds for believing that the Respondent would make a different decision on the Access Application of 3 November 2023.
The Respondent continued to deal with the Access Application following notice of refusal. Following further correspondence dealing with and narrowing the scope of the Access Application, on 22 December 2023, the Respondent issued a notice of decision refusing to deal with the Access Application, as it would involve an unreasonable and substantial diversion of the Respondent's resources ("Decision"). This is the decision which the Applicant seeks review of by the Tribunal. That review was sought by application filed on 15 January 2024.
The parties exchanged a number of emails after the date of the Decision. The correspondence dealt with further attempts to narrow the scope of the Access Application. By letter dated 23 February 2024 from the Respondent to the Applicant, the Respondent made a further proposal for narrowing the scope of the Access Application. That letter contained specific proposals for narrowing of the scope of the Access Application. The Applicant by email dated 25 February 2024, replied to the Respondent's letter. That email in reply contained variations to the Respondent's proposal. The differences do not, on the face of the correspondence, appear to be material. The Applicant in his email also indicated that his application for review in these proceedings should still proceed to hearing.
The hearing of the matter was set out down for 20 May 2024. The matter was part heard on that day and the hearing was adjourned until 3 July 2024 on account of the absence on medical grounds of a witness of the Respondent. The hearing resumed on 3 July 2024. The Applicant represented himself. The Respondent was represented by the Crown Solicitor.
Evidence on behalf of the Respondent was provided by Ms Erin Drummond. Ms Drummond is a Senior Advisory Officer, Advisory and Education for the "Infolink Unit" in the NSW police force. That unit is responsible for processing and responding to applications for information to the Respondent including access applications made under the GIPA Act. Ms Drummond had held that position since September 2023. She has been employed by the Respondent since April 2013 and has been attached to the Infolink Unit for the duration of her employment. Her evidence was set out in an affidavit sworn on 22 March 2024. She swore a further affidavit on 25 June 2024. Ms Drummond appeared at the hearing on 3 July 2024 by audio visual link, with leave granted by the Tribunal for her to do so. The Applicant had the opportunity to ask questions of Ms Drummond and did so.
Ms Drummond's evidence was that total time, being the actual and projected time estimated to be required to deal with the revised application was 100 hours (Affidavit of Erin Drummond sworn on 22 March 2024, para 84). She considered the estimate to be conservative. She also gave evidence that the Respondent had already spent a total of 15 hours dealing with the Access Application.
[3]
Applicant's right to information
The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1). It may also refuse to deal with an application under s 60 of the GIPA Act. Section 60(1) relevantly provides that:
"An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -
(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,
(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,… "
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act). It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act). The considerations listed in the Table under s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure (s 14(2) of the GIPA Act).
The power of the Tribunal to review a decision arises where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("Administration Act") of that decision (s 100 of the GIPA Act).
What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act. They include a decision to refuse to deal with an access application (including such a decision that is deemed to have been made) (s 80(c) of the GIPA Act).
An "agency" is defined in s 4(1) of the GIPA Act to include a "public authority". A "public authority" in turn is defined in Schedule 4 of the GIPA Act to include "the NSW Police Force".
An agency has, therefore, made a "reviewable decision" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being a decision to refuse to deal with the Access Application.
The Tribunal under s 63 of the Administration Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.
The provisions of the GIPA Act referred to above apply where the Applicant has made a valid "access application" seeking "government information". It is not in issue that the Applicant made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information" (see definition of these terms in s 4 of the GIPA Act).
The Respondent has the onus of establishing that the decision is justified (s 105(1) of the GIPA Act).
[4]
Consideration
The main question for determination in this matter is whether the Respondent's reliance on s 60(1) to refuse to deal with the Applicant's Access Application of 3 November 2023 is justified. The purpose of s 60, that gives the Respondent the relevant power of refusal, was described in the following terms by the Tribunal in Commissioner of Police v Danis [2017] NSWCATAP 7, at [45]:
"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 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)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. 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), and, arguably (d)".
[5]
Reasonable opportunity to amend application
A preliminary question for determination is whether the Respondent has satisfied her obligations under section 60(4) of the GIPA Act. Section 60(4) sets out an obligation on the part of the Respondent to give the Applicant a reasonable opportunity to amend his application, once the application has been made. The Respondent must do so before refusing to deal with an access application under s 60. Section 60(4) provides follows:
"Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application".
The Respondent submits that she has complied with her obligations under section 60(4). She refers to email correspondence in late 2023 that deals with efforts to reduce the scope of the Access Application. By email dated 17 November 2023, the Respondent invited the Applicant to narrow the scope of the Access Application. The Applicant replied by email on the same day. That email in reply set out certain variations to the scope of his Access Application. He sent a further email on 18 November 2023. By email correspondence on 22 and 23 November 2023, the parties proposed further variations to the scope of the Access Application. However, no agreement was reached.
Regardless of no agreement having been reached, the correspondence, in my opinion, demonstrates that a reasonable opportunity was afforded to the Applicant to amend his application so as to reduce its scope. On this basis, I am satisfied that the Respondent has discharged her obligations under section 60(4).
The Respondent further submits that s 60(4) contemplates amendments to the scope of an access application only before the agency decides the application. I agree with this submission. Accordingly, the Respondent could not and did not rely on the correspondence referred to at [8] above, occurring after the date of the Decision.
[6]
Unreasonable diversion
Section 60(1) allows certain bases for a refusal to deal with an access application. The first of these bases relied on by the Respondent is that the Applicant's application would require an unreasonable and substantial diversion of the agency's resources (s 60(1)(a)).
There are two matters relevant to refusal to deal with an application under s 60(1)(a). The first is that the application would require an "unreasonable" diversion of the agency's resources. Secondly, that diversion must be "substantial" (Colefax v Department of Education and Communities No 2 [2013] NSWADT 130, at [20]). What these terms meant fell for consideration in Dezfouli v Commissioner of Police, NSW Police Force
[2024] NSWCATAD 15. French SM said, at [45]-[46]:
"The words substantial and unreasonable are non-technical English words that ought to be given their ordinary meaning in this context. Oxford Languages defines 'substantial' to mean 'of considerable importance, size, or worth'. It defines 'unreasonable' to mean 'beyond the limits of acceptability or fairness'.
The agency must also be satisfied that dealing with the access request would constitute a diversion of its' resources. I have been unable to find any prior discussion of that word in this context. However, it is a non-technical English word and should be given its ordinary meaning. Oxford Dictionaries defines it to mean "the act of changing the direction that somebody/something is following, or what something is used for". It is thus also necessary for the agency to establish that an access request if both unreasonable and substantial would also result in some form of significant change in the typical deployment of agency resources".
Section 60(1)(a) further requires consideration of what the agency's resources are (Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5).
A non-exhaustive list of factors going to determination of the question were set out as follows in Cianfranco v Director General, Premier's Department [2006] NSWADT 137, at [62]:
"(a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in Re Borthwick at 35)
[7]
(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 (see further Rowlands P in Re Borthwick)
[8]
(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
[9]
(d) the agency estimate as 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
[10]
(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
[11]
(f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)
[12]
(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
[13]
(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
[14]
(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".
The time taken to determine an access application is one of the matters found to be relevant in Cianfranco, in determining whether dealing with an access application would require an unreasonable and substantial diversion of an agency's resources. There is no hard and fast rule as to how much time a search for information should take before the time taken could result in an unreasonable and substantial diversion of an agency's resources (Colefax, at [28]; Dibb v Transport for NSW [2022] NSWCATAD 398, at [51]; Wojciechowska v Commissioner of Police, NSW Police Force [2024] NSWCATAD 46, at [95]). In Loussikian v University of Sydney [2018] NSWCATAD 140, the Tribunal, in considering whether there was a benchmark of 40 hours search time, said, at [50]-[51]:
"It is a matter for the University to determine what resources it makes available to process GIPA access applications. Whether or not the University is a large, well-endowed agency is not a relevant consideration in this matter.
I agree with the Applicant that the Cianfrano 40 hour reference should not be regarded as establishing a 40-hour rule. Each matter is to be considered on its own facts and an assessment is to be made in regard to whether the resources available to the agency are such that the time required to process the access application would constitute an unreasonable and substantial diversion of the agency's resources in accordance with section 60 of the GIPA Act".
Section 60 sets out a legislative scheme as to what an agency can consider in determining whether an application would require an unreasonable and substantial diversion of resources. That scheme provides a legislative basis for some of the factors set out in Cianfranco. Section 60 provides :
"(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 task of the Tribunal is to balance the considerations set out in s 60(3A) that may support refusal to determine an access application against those set out in s 60(3B) that may favour disclosure (Danis, at [43]-[51]). In Ruyters v Commissioner of Police [2020] NSWCATAD 223, the Tribunal, at [24] described its task in the following terms:
"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 access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources".
The Respondent in addressing the considerations falling within section 60(3A), submits that the following considerations are relevant and should be individually accorded significant weight.
1. The information sought is voluminous when regard is had to the broad terms of the Applicant's access application including a time frame which exceeds five years. Preliminary searches have determined the information to amount to more than 600 pages with an estimated 15 hours already spent by the Respondent in searching for the information.
2. A conservative estimate for total processing time for the Access Application would be at least 100 hours. The processing time goes well over 40 hours, being the "upper end of the benchmark" set for another agency. The Respondent's evidence was that an appropriate benchmark to be applied, when regard is had to the average time an information review officer takes to deal with an access application, is 3.1 hours and 3.5 hours. The Respondent gave evidence as to what resources would have to be diverted if the Applicant's Access Application had to be dealt with. She also gave evidence of the projected impact of dealing with the Applicant's Access Application on the time taken to process other access applications, discharging her other responsibilities as well as the diversion of the other units and commands from their core responsibilities. The other units and commands included the child abuse squad (which already had extensive work assisting investigators and responding to subpoenas and other access applications), and the criminal records unit.
3. Given that an access application must be decided within 20 working days, if the time required to process an application equals the amount of time allowed for processing an application it would constitute an unreasonable and substantial diversion of resources (Colefax, at [44]).
In relation to the factors set out in section 60(3B), the Respondent submitted that;
1. the general public interest disclosure of government information should be given some weight
2. the demonstrable importance of the information to the Applicant should be given some (but not considerable) weight having, regard to the fact that the information sought by the Applicant appeared to be his personal information and that of his children, which was a relevant factor (Colefax, at [27] and Loussikian, at [35]).
There are three specific matters required to be taken into account under section 60(3A) in deciding whether dealing with an access application would require an unreasonable and substantial diversion of an agency's resources. These matters, however, are not exhaustive and do not limit the circumstances that can be taken into account.
One such matter is the amount of time that the searches would take to deal with the Applicant's access application. I accept that a benchmark of 40 hours as being excessive is not a hard and fast rule. The evidence provided indicated average search times for the Respondent of much shorter times, in the vicinity of three hours or so. While average search times may have some relevance, each matter needs to be addressed having regard to the particular circumstances rather than having to be based on any hard and fast rules, referable either to a general benchmark or average search times.
I accept the evidence of Ms Drummond that the estimated time to search for the information sought by the Applicant will be in the order of 100 hours or so. I take note of the evidence produced by the Applicant as to shorter timeframes for searches in other matters. I also take into account the matters put into evidence following cross examination of Ms Drummond by the Applicant. I consider that the evidence given by Ms Drummond that deals specifically with the Access Application is preferable to other evidence before the Tribunal relating to other access applications, because Mr Drummond's evidence is specific to the matter.
In the present case, the substantial amount of time that the search may take, in the order of 100 hours or so, is relevant to determining the balance. Though not determinative, I attach moderate weight to the number of estimated hours searching may take, as a factor in undertaking the balancing exercise required of the Tribunal.
A specific matter that an agency may take into account is the estimated volume of information involved in a request (s 60(3A)(a)). While the volume of information involved may be closely related to and go to determining the number of hours a search is expected to take, it is a separate consideration that may be taken into account. The estimated volume of about 600 or so pages is substantial. I can therefore attach moderate weight to the volume of information involved as a factor in determining the required balance.
There was also evidence as to the Respondent's size as an agency and its resources. This is the second specific consideration that may be taken into account under s 60(3A). There was evidence that the dedicated unit for dealing with applications under the GIPA Act had an equivalent of 15 full time information review officers. There was also evidence as to the impact of the diversion of resources from other areas that would be required to deal with the Access Application. The Respondent dealt with more than 8,000 valid applications in the 2022-2023 financial year. There was evidence that the number of access applications appears to be increasing. These are circumstances that I attach some weight to in carrying out the balancing exercise that is required of the Tribunal.
The decision making period is also a matter that I can take into account (s 60(3A)(c)). Under s 57(1) of the GIPA Act, an access application must be decided within 20 working days. There was evidence that one information review officer would have to spend just over 8 working days on the Access Application. There was evidence that deploying that information officer to the Access Application would increase the short term workload of other information review officers. Measured against a benchmark of 20 working days, I do not attach significant weight to this consideration, but attach some weight to it.
Having weighed up the various considerations arising under section 60(3A), the Tribunal must balance those considerations against the countervailing factors required to be given weight to under s 60(3B).
The first of these considerations is the general public interest in favour of the disclosure of government information. In Dibb, Mulvey SM described the relationship between the public interest considerations applicable under s 12 and 13 of the GIPA Act and the general public interest in favour of the disclosure of government information referred to in s 60. He said:
"…. , s 12(2) public interest considerations relevant to the s 13 test, are not to be imported into the balancing exercise test for s 60(1)(a). This is because the "general public interest" in s 60(3B) refers to inherent public interest in the disclosure of information as in s 12(1), and not to the other public interest considerations in favour of disclosure of the particular information sought as set out in the note to s12(2) of the GIPA Act (see Ruyters at [47]). Therefore, only the general public interest consideration (s12(1)) is to be imported into the weighing exercise…...
In Ruyters, the Tribunal said at [44]-[45], which I adopt:
44 The term "general public interest", as noted above, occurs elsewhere in the GIPA Act most notably in s 12(1). The courts have long held that where a word is used consistently in legislation it should be given the same meaning. As was stated in Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452 "it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament". Consistent with the principal set out in Craig Williamson and other cases the same meaning should be given to the phrase "general public interest" in both s 12(1) and s 60(3B).
45 I agree with the submissions of the Commissioner that the use of the word "general" in the phrase "general public interest" should be given its ordinary meaning of "common to many or most of the community" and "non-specific or special" (Macquarie Dictionary). In that sense the phrase "general public interest" indicates that it is the inherent public interest in the disclosure of government information that is to be given consideration for the purposes of s 60(3B) as it is in s 12(1)".
The Respondent concedes that this is a matter that should be given some weight. The Respondent is correct in making that concession, based on the inherent public interest in the disclosure of information.
The second of these considerations is the demonstrable importance of the information to the Applicant, including whether the information is personal information that relates to the Applicant, or could assist the Applicant in exercising any rights under any Act or law. The Respondent submitted that this consideration should be given some weight but not considerable weight. The information sought by the Applicant appeared to be his personal information and that of his children, which is a relevant factor.
In Wojciechowska, at [97]-[101], Riordan SM said:
"Section 60(3B)(b) is limited to considerations that concern the demonstrable importance of the information sought under the GIPA request to the applicant, including those specified in ss 60(3B)(b)(i) and (ii), but is not limited to those considerations.
The words 'demonstratable' and 'importance' are non-technical English words which are defined by The Oxford English Dictionary to mean, respectively, 'clearly apparent or capable of being logically proved' and 'of considerable importance, size or worth'. These words put a practical onus on GIPA applicant to draw attention to material before the agency that demonstrates the importance to them of the information sought.
However, with respect to s 60(3B)(b)(i) of the GIPA Act, a proper construction of the clause "personal information that relates to the applicant" means "of demonstrable importance to the applicant".
With respect to s 60(3B)(b)(ii), the appearance of "could" at the beginning of the phrase, which The Oxford English Dictionary defines, relevantly, to mean: 'to indicate a possibility", indicates that this is 'something that may happen or be the case".
A GIPA applicant will usually be seeking access to information they do not have in order to establish its existence and contents. I consider that it would be a misapplication of s 60(3B)(b)(ii) to require an applicant to show that information that they do not yet have or know of is of demonstrable importance to them in any positive or specific sense. Rather, the section requires an applicant to establish a plausible basis upon which it may be the case that the information sought would assist them to exercise a legal right: Ruyters at [54]".
The Applicant for his part indicated that the information he is seeking was sought by him in order to understand the actions of certain individuals and whether they were potentially "bona fide" and "may potentially result in legal action and/or redress". There was no further evidence provided as to what potential legal action or redress the Applicant was considering. The Applicant was given the opportunity to provide that evidence but did not do so. He was not cross examined on these or any other matters. He invited the Tribunal to infer that the very fact of seeking that information was sufficient to establish the demonstrable importance of the information sought. The Respondent, on the other hand, invited the Tribunal to infer that the absence of evidence from the Applicant allowed for an inference that such evidence would not support the Applicant's case.
I am unable to infer that the absence of evidence either assists or hinders the Applicant's submission of demonstrable importance. The absence of such evidence is exactly that and nothing more, but it limits the weight I can attach to considerations of demonstrable importance. Nevertheless, given that the Applicant cannot show that information that he does not yet have "or know of is of demonstrable importance to ….. in any positive or specific sense", I attach some weight to these considerations.
Balancing the competing consideration set out in each of sections 63(3A) and 63(3B), I am of the view that the balance favours the conclusion that the application would result in an unreasonable and substantial diversion of the Respondent's resources. I can give some weight to the considerations of general public interest in favour of disclosure and the demonstrable importance of the information to the Applicant. However, I am of the opinion that the countervailing factors carry more weight. These matters, in particular, include the number of estimated hours dealing with the Access Application would take and the volume of material to be dealt with. The balance, so far, however is a fine one.
The Applicant and the Respondent have since the date of the Decision narrowed the differences between them as to scope. The correspondence on its face, appears to indicate that they were close to agreement. In these circumstances, the preferable decision is to remit the matter to the Respondent for reconsideration in accordance with the GIPA Act. The Respondent submits that the Tribunal, as an alternative to affirming her Decision, should remit the application to the Respondent for reconsideration. In the Respondent's submission, this would allow for further searches to be carried out and for an assessment of the tests under s 13 of the GIPA Act to occur. I am in agreement with that submission, particularly if the parties are close to agreement in narrowing of scope. The matter therefore is remitted to the Respondent for reconsideration under the GIPA Act.
[15]
Other access applications
The second ground for the Respondent's refusal to deal with the Access Application was that;
1. she had already decided a previous application for the information concerned made by the Applicant; and
2. there were no reasonable grounds for believing that she would make a different decision on the Access Application (s 60(1)(b)).
The Respondent submitted that the two components of s 60(1)(b) would be met for the following reasons. Firstly, the terms of item 1 of the 2018 access application and item 1 of the current Access Application were substantially similar in terms of the COPS information sought. There were overlapping ranges of the two access applications. The Tribunal therefore, should in the Respondent's submission, be satisfied that at least some of the information sought in the current access application was the subject of the 2018 access application. While there appears to be overlap between the scope of the two applications, it is not clear that both cover the identical ground. Narrowing of the scope of the Access Application may assist in dealing with any overlap.
The Respondent also submits that, having regard to the reasons set out in her decision dated 7 February 2020, it was highly unlikely that the application of the public interest test to the information determined to be subject to an overriding public interest against disclosure, would result in a different in outcome.
However, in my opinion, remittal of the matter to the Respondent remains the preferred course for the reasons set out at [53] above.
[16]
Evidence
There are certain matters concerning the evidence that requires some comment. The Applicant questioned the evidence given on behalf of the Respondent as to the resources that would be required to deal with the Applicant's application. He relied on the fact that Ms Drummond was not the original decision maker, did not, in the Applicant's view, appear to have sufficient knowledge of the matter and made "self-serving" statements. The Applicant also submitted that Ms Drummond had failed to refer to the full context. The Respondent submitted that Ms Drummond's evidence, on the other hand, should be given considerable weight based on her role as a Senior Advisory Officer in the Infolink Unit at the NSW Police Force and her years of experience and knowledge of NSW Police processes for dealing with access applications. I accept that Ms Drummond had adequate expertise and accept her evidence. That evidence is sufficient for the Tribunal to hear and determine matters on the basis of that evidence.
The Applicant also sought to have summonsed to appear before the Tribunal, Mr D Funston, a former employee of the Respondent who made the decision that is under review. The Respondent submitted that any evidence he could give is not relevant to whether the correct and preferable decision is to refuse to deal with the Applicant's access application. I am satisfied that Ms Drummond's evidence adequately allows me to determine the matter. I do not see any benefit to any party or assistance that could be given to the Tribunal in obtaining further evidence from Mr Funston.
The Applicant tendered during the hearing of 3 July 2024, two affidavits providing evidence of the scope and time taken for searches in other matters. The times varied depending on the scope of the searches. I take this evidence into account. However, for the reasons set out at [40] above, I prefer the evidence of Ms Drummond.
The Applicant also made various submissions going to the conduct of the Respondent in these proceedings. He was dissatisfied with a number of aspects of the handling of the matter by the Respondent, including the time taken by the Respondent to deal with various matters, the time he had to prepare, the resources deployed by the Respondent and the making available of witnesses. I take note of the Applicant's submissions. I do not however need to determine these questions raised in the Applicant's submissions. I find that the evidence placed and submissions made before the Tribunal have been sufficient to allow determination of the matter. I also find that the Applicant was allowed sufficient time to prepare and reply to the Respondent, as demonstrated by detailed submissions he has made.
[17]
Orders
1. The decision under review is set aside and remitted to the Respondent for reconsideration under s 63(3)(d) of the Administration Act in accordance with these reasons.
2. Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, his children, the children's mother and the children's place or places of education is prohibited.
[18]
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: 01 August 2024