The Applicant expressed scepticism in regard to the Respondent's reasons for refusing to deal with the access application. She alleges that there has been collusion, fabrication and cover up to ensure that no-one can reach the documents that she is seeking. She is seeking to gain access to the documents and records to expose conduct within the agency that has been the subject of a cover up. She contends that the Respondent has been colluding to cover up the information she is seeking.
She urges the Tribunal to stand for openness, transparency, public interest and community safety and well-being. She submitted that a decision based on a wrong, falsified, fabricated estimate would be a wrong and corrupt decision and should be thrown out and that the Respondent should be penalized for misleading her and Tribunal.
The Applicant has filed detailed written submissions. However most of the material that she has filed is of no relevance to these proceedings. It appears to be related to allegations that officers of various agencies have breached her privacy and confidentiality. These issues are not under consideration in this matter.
Her material, while voluminous, focuses on her dealings with individuals in various agencies and the motivations of those individuals in their dealings with her. Even if correct, the motivations of those individuals are not relevant to the issues of the searches that would be necessary to respond to the access application or to the time and resources that would be necessary to process the information that is located by the searches to allow the Respondent to make a determination on the request.
The Applicant does not concede that her access application is unreasonably broad. I understand her position to be that dealing with the access application would not constitute an unreasonable and substantial diversion of the Respondent's resources and that the Respondent is not able to rely on section 60(1)(a) of the GIPA Act in its refusal to do so.
The Applicant contends that the Respondent's initial estimate of the time required to deal with her request was fabricated and an over-estimate. She says that the Respondent should not have any information or documents or files about her at all. If the Respondent does hold any information that is captured by the access application, it would not more than just few email exchanges, and that information would be located in 1 or 2 files. She contends that the information would be easily accessible and retrievable and it would not contain any highly sensitive or classified information. Little time would be required to review or read the information and therefore it should be released without any issues.
[2]
Discussion
The Respondent attempted to obtain the Applicant's cooperation in narrowing the scope of the access application but she declined to do so. I am satisfied that the steps taken by the Respondent in this regard were reasonable.
The significant areas of disagreement are whether the estimate of processing time is reliable and whether dealing with the application would constitute an unreasonable and substantial diversion of the Respondent's resources in accordance with section 60 of the GIPA Act. There is no agreement between the parties in regard to the question of what constitutes an unreasonable and substantial diversion of an agency's resources.
The Respondent concedes that the initial estimate of processing time was not accurate. Ms McHugh provided an updated estimate that is still in excess of 40 Hours. This estimate is in the context of the limited resources that the Respondent has available for the task. The Respondent has also asserted that there is overlap between the access application in this matter and information sought in other proceedings.
I agree that some doubt attaches to the Respondent's estimate of processing time. It may in fact be an under-estimate. However, to require the Respondent to provide a more accurate estimate of processing time would necessarily require it to undertake a significant amount of work. This raises the question of whether that would be a reasonable requirement to be imposed on the agency. In my view it would not be reasonable.
It is a matter for the Respondent to determine what resources it makes available to process GIPA access applications. Whether or not the Respondent is a large, well-endowed agency is not a relevant consideration in this matter.
In my view the 40 hour reference in Cianfrano 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.
In my view, the Respondent has taken reasonable steps to form an estimate of the processing time that would be required. Ms McHugh repeated the process of estimation in light of the concerns that the Applicant raised and nevertheless arrived at a significant time estimate. I accept that the time required would probably be in excess of 40 hours.
I am satisfied that even if allowance were made for the possibility that the Respondent's estimate of processing time may be excessive, the time required to process the access application would nevertheless constitute an unreasonable and substantial diversion of the agency's resources. That would remain the case unless the Applicant is able to narrow the scope of her request.
That being the case, it is my view that the Respondent's decision should be affirmed.
[3]
Order
1. The NSW Ministry of Health's decision to refuse to deal with the Applicant's revised access application on the grounds that dealing with it would require an unreasonable and substantial diversion of its resources is affirmed.
[4]
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: 24 January 2019
Parties
Applicant/Plaintiff:
Hanna
Respondent/Defendant:
NSW Ministry of Health
Cases Cited (2)
Applicable Legislation
In accordance with section 60 of the GIPA Act, an agency may refuse to deal with an access application in prescribed circumstances. The power of an agency to refuse to deal with an access application is a powerful one and should be used only as a last resort after making every attempt to assist an applicant to narrow their request.
Section 60 relevantly states
60 DECISION TO REFUSE TO DEAL WITH APPLICATION
(1) 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,
(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 ,
...
(d) he information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,
...
(2) 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 applicant and the agency of the period within which the application is required to be decided.
(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to 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.
(4) 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.
(5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal.
(6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
Section 60(5) requires that the notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. An assertion without any explanation or supporting reasons will be insufficient to meet those requirements. In Taylor v Destination NSW [2017] NSWCATAD 272 Senior Member Dinnen noted at paragraph [32]:
In addition, whilst the reviewable decision referred to s60 of the GIPA Act as "the reason of dealing with this application would require an unreasonable and substantial diversion of the Destination NSW resources", this is in the nature of an assertion without any explanation or supporting reasons provided as required by s60(5) of the Act. Whilst the Respondent has sought to characterise submissions and evidence filed in these proceedings as proof of its compliance with s60(5) of the GIPA Act, I reject those as irrelevant in circumstances where they have only been provided following the applicant's request for administrative review by this Tribunal, for the purpose of these proceedings.
A decision to refuse to deal with an access application is a reviewable decision. The Tribunal has jurisdiction to review an agency's decision where a person is aggrieved (sections 100 and 80(c) of the GIPA Act; and section 9 of the Administrative Decisions Review Act 1997).
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: section 63(1) of the Administrative Decisions Review Act.
Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.
The function of the Tribunal is to hear matters de novo and to reach a view itself, unrestrained by the view taken by the primary decision-maker. The Respondent is not limited to the basis on which it made its original decision: Public Service Association v Premier's Department [2002] NSWADT 277 at paragraphs [57] and [59].
What constitutes an unreasonable and substantial diversion of resources?
The section 60 discretion to refuse to deal with an access application is based on an assessment of the resources that would be needed to deal with the application. It relates to the resources that are available to the Agency and the available resources are solely within the control of the Agency.
The GIPA Act does not define what is meant by 'an unreasonable and substantial diversion of resources', however the Tribunal has considered these concepts in matters under the former Freedom of Information Act 1989 and more recently in decisions under the GIPA Act.
In Commissioner of Police v Danis [2017] NSWCATAP 7 at paragraph [41], the Appeal Panel noted that:
"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 deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications ... 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 …
In Cianfrano v Premier's Department [2006] NSWADT 137 ("Cianfrano") at paragraphs [62] to [63] O'Connor DCJ identified a number of considerations that are relevant on any assessment of what constitutes an unreasonable and substantial diversion of resources. In Cianfrano O'Connor DCJ stated, references omitted:
62 As I see it, the factors that are relevant to an assessment of the kind required by this case, include:
(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' …
(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 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
(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.
63 This is, of course, not intended, in any way, to be an exhaustive list of possible considerations.
In Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130, the Tribunal confirmed that the considerations identified in Cianfrano remained relevant to the assessment to be performed under section 60(1)(a) of the GIPA Act. This approach has been adopted in other matters before the Tribunal.