Hariz v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-09-29

Reasons for decision

This decision relates to two administrative review applications lodged by the applicant in 2020. Each application seeks administrative review of a decision made by the respondent, the Commissioner of Police, under the Government Information Public Access) Act 2009 (NSW) (GIPA Act), in response to the access applications the applicant made under that Act.
The first application (file number 2020/00062669) was lodged by the applicant on 26 February 2020. In that application, the applicant seeks external review of the decision made, on 17 January 2020, by a delegate of the respondent (respondent) (January 2020 decision). The decision relates to the 18-page access application of the applicant, the respondent received on 16 January 2020 (January 2020 access application). The respondent determined that the application was invalid on the grounds that it did not contain sufficient information to enable the information being sought to be identified: GIPA Act, s 41(1)(e).
The second application (file number 2020/00193295) was lodged by the applicant on 30 June 2020. In that application, the applicant seeks external review of the decision made, on 24 April 2020, by another delegate of the respondent (respondent) (April 2020 decision). The decision relates to a further 23-page access application of the applicant, the respondent received on 2 March 2020. This access application included the same 18 pages that was in the January 2020 access application, plus an additional five pages. The respondent initially found this access application to be an invalid because the applicant had failed to pay the $30.00 application fee: GIPA Act s 41(1)(c). After the applicant paid the application fee on 14 April 2020 the respondent found that the applicant's access application was a valid application, and this became the date on which the applicant's access application was received (April 2020 access application). On 24 April 2020, the respondent determined to refuse to deal with the applicant's access application, because dealing with the application would require an unreasonable and substantial diversion of resources: GIPA Act, ss 58(1)(e) and 60.

Tribunal's jurisdiction and role on review

There is no dispute that: 1. the abovementioned decisions of the respondent are administratively reviewable decisions and reviewable by the Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 30 and GIPA Act ss 80 and 100; 2. the Tribunal has jurisdiction to hear and determine each of the abovementioned applications of the applicant: Administrative Decisions Review Act 1997 (NSW) (ADR Act) ss 7 and 9 and GIPA Act ss 80 and 100; 3. the role of the Tribunal is to determine the correct and preferable decision having regard to the material before it and any applicable written or unwritten law: ADR Act s 63(1); 4. in determining each of the abovementioned applications, the Tribunal may decide (ADR Act s 63(3)): (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The onus is on the respondent to satisfy the Tribunal that its decision is justified: GIPA Act s 105(1).
In these applications, the respondent contends that on the material before it and the applicable law the Tribunal can be satisfied that: 1. the decision made by the respondent on 17 January 2020 is the correct and preferable decision and should be affirmed; and 2. the correct and preferable decision regarding the applicant's April 2020 access application is that it is also an invalid application.
As noted below, the form in which the applicant submitted his January 2020 and March 2020 access applications are unconventional. Each application is very lengthy, convoluted, repetitive and therefore very difficult and very time consuming to read and understand. In my view, each application consists of several separate applications for access (15 in the January 2020 access application and 20 in the April 2020 access application) and should have been dealt with as such. This is both consistent with the structure approach to decision making under the GIPA Act and the intention of Parliament in s 3(2)(b) of that Act. Under this approach, subject to the respondent having agreed to waive or reduce the application fee for these separate access application within the January 2020 and April 2020 applications, this alone would have made all but one of the separate access applications within January 2020 and the April 2020 access applications an invalid application as only one access fee accompanied the January 2020 and April 2020 applications: GIPA Act ss 41(1)(c), 51A and 127. Some of these separate access applications, as I have found below, were invalid as the applicant had failed to include information as is reasonably necessary to enable the respondent to identify the information for which access was sought: GIPA Act s 41(1)(e). To deal with each of the separate access applications together, in my view, on the material before the Tribunal, would also arguably involve an unreasonable and substantial diversion of the respondent's resources: GIPA Act s 60(1)(a).
However, as the applicant's January 2020 and April 2020 access applications were dealt with as two single access applications, I have dealt with them as such in these reasons for decision and I am satisfied that the respondent has established that each application is an invalid application and made the orders sought. As I have already noted, in my view, on the material before the Tribunal, to deal with the applicant's January 2020 and the April 2020 access applications would involve and unreasonable and substantial diversion of the resources of the respondent.

Proceedings before the Tribunal

Both applications have had a protracted history before the Tribunal. It is unnecessary to deal with this history at any length other than to note that: 1. application file number 2020/00062669 first came before that Tribunal at a case conference on 14 April 2020; 2. application file number 2020/00193295 first came before the Tribunal at a case conference on 18 January 2021. I was the Tribunal member allocated to deal with the case conferences listed that day, which included this application of the applicant. It did not include application file number 2020/00062669. I note that there was no appearance by the applicant at this case conference. There was however an appearance on behalf of the respondent and in the absence of the respondent having filed its agency response form, I made the usual order in this regard. I also note that the only material before the Tribunal was the applicant's administrative review application which had attached to it the decision of the Information Commissioner dated 12 June 2020 and the email sent on the same day by the respondent to the applicant to advise that no internal review would be undertaken as recommended by the Information Commissioner. 3. on 26 April 2021, the Tribunal (differently constituted) made an order, in chambers, formally appointing a Guardian ad Litem to act on behalf of the applicant, under s 45(4)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); 4. on 4 May 2021, at a directions hearing of both matters, the Tribunal (differently constituted): 1. made an order listing both matters for hearing, together, on 25 June 2021; and 2. noted the respondent's change in position/decision concerning the applicant's access application the subject of matter number 20/193295. The respondent's changed position being that both access applications of the applicant were invalid; 1. on 16 June 2021, at the request of the applicant and with the consent of the respondent, the Tribunal (differently constituted), in chambers, made an order vacating the hearing of both matters on 25 June 2021. The Tribunal also made an order that the matters were to be determined on the papers;
In the latter part of 2021 and in 2022, the applicant made several email requests to the Registrar for the non-disclosure of his name and any decision made by the Tribunal in these applications and other applications he had before the Tribunal. In February 2022, the applicant lodged an Application for Miscellaneous Matters seeking various non-publication orders in these matters (applications) and other application she had before the Tribunal.
The applicant's Application for Miscellaneous Matters came before me, for hearing, on 29 September 2022. On that day, the applicant and the appointed Guardian ad Litem appeared and made oral submissions concerning the orders sought in the Miscellaneous Matters application concerning these administrative review applications (i.e. file number 2020/00062669 and file number 2020/00193295). In that appearance, the applicant confirmed that he still pressed his administrative review applications.
I note previous agreement of each party to the applicant's administrative review applications being suitable for determined on the papers. I am also satisfied that the issues for determination can be adequately dealt with in the absence of the parties by considering the written submissions and other documents or material lodged with or provided to the Tribunal, and I make an order accordingly.

The Applicant's Access Applications

Each access application was made using the respondent's pro-forma agency four page 'Access Application' form. However, they have not been completed in the conventional way and involve some complexity.
There are 11 Sections to the respondent's pro-forma 'Access Application'. Section 1 is on the first page of the form and requires the access applicant to insert his or her personal details such as name, address, email address and contact number.
Section 2 is on the second page and is headed 'Information Requested'. This section is for the access applicant to insert details of the information for which access is sought. I have dealt with this page in more detail below.
Sections 3 (authorisation to release personal information - in this case the applicant ticked the box that said he was seeking access to his personal information), 4 (proof of identity), 5 (application fee) and 6 (processing charges) are on the third page and Sections 7 (form of access), 8 (consultation), 9 (privacy statement), 10 (applicant's signature and date) and 11 (lodgement options). are on the fourth page. These pages primarily contain information and tick boxes for the access applicant to mark if relevant to his or her access application.
Section 2 on page two contains several boxes at the top on the page for which specified information can be inserted by the access applicant if the information is known the applicant. The box, at the top of the page, on the left-hand side is for the access applicant to enter, if known, an 'Event Number' and the box, at the top of the page, on the right-hand side is for the access applicant to enter, if known, the date of the incident to which the event relates. Under these two boxes are two further small, but long boxes. The long box on the left-hand side is for the access applicant to insert details of Who/Where the incident was reported to and the long box on the right-hand side is for the access applicant to insert, if known, the involved party/parties.
Under these long boxes there is a three-dot point note headed 'Information Description'. The first dot point notes that a request for the information sought is to be described with 'enough detail to enable reasonable searches to be conducted'. An example of what details might be included in the request is contained in brackets. The second dot point states that if the access application is unclear as to the information sought the application may be 'deemed' invalid and the last dot point states 'Attach additional pages (if necessary) with any additional information that you feel will support your application'.
Under these dot points, there is a large (14-15 cm) empty space for the access applicant to insert details of the information sought.
And at the bottom of the page there is a further note stating that: 1. 'if additional space is required please attach additional pages'; and 2. 'pursuant to s 75 of the GIPA Act', the respondent 'is not required to create a new document to respond to' the applicant's access application.

January 2020 access application (IASU-2020-217)

Provided to the Tribunal is a copy of the applicant's January 2020 access application. Included in the application are 15 pro-forma Section 2 pages, which are individually numbered, in handwriting, 1 to 15 at the bottom right-hand corner of each page.
Other than the Event Number ending in 2714, the details provided by the applicant on each Section 2 page is typed, including the descriptions of the information sought.
On each of the 15 Section 2 pages, the applicant has inserted an incident date or incident date range as follows: 2018-2019 (page 1), 2017-2019 (page 2), 25 June 2019 (page 3), 24 or 25 May 2018 (page 4), August 2017-23 November 2019 (page 5), 23 November 2018 (page 6), 28 November 2018 (page 7), 2018 (page 8), 2018 (page 9), 2018-2019 (page 10), 19-23 November 2018 (page 11), 2018-2019 (page 12), 2018-2019 (page 13), 2018-2019 (page 14) and 12/11/19 (page 15).
On the Section 2 pages marked 7, 8, 11, 13, 14 and 15 the applicant has inserted a specified Event number. Of these, the same Event number (ending in 2714) has been inserted on four of these Section 2 pages.
The applicant also inserted details of the involved party or parties on each Section 2 page, which included the respondent and other agencies (State and Federal), named police officers and officers or employees of other agencies. There is considerable repetition of some of the alleged involved agencies and named police officers.
There is considerable overlap and repetition in the description of the information for which the applicant sought access on each of the 15 Section 2 pages.
The information for which the applicant seeks access is broad ranging and includes some or all of the following information: any warrants, telephone intercepts, listening devices, transcript or notes relating to intercepts and listening devices, meta data, documents, emails, any record of interview, communication, notes and memorandum, video or audio recordings, police narratives, transcript of all recorded telephone calls, copy of any police narrative or notes, C.O.P.S entries, Event numbers, evidence (affidavits) or information setting out why the applicant was connected to a specified offence, names of Police officers and other officers involved in specified incidents, dates and times when Police have accessed and monitored the applicant's electronic devices, intelligence that led police to his home, body cam footage, radio recordings and any other footage taken by hand held devices.
Other than on page 15 of the Section 2 pages, immediately under the description or list of information for which the applicant seeks access the applicant has inserted the following: Kind regards, Ray
On page 15 of the Section 2 pages the applicant has described/listed 11 categories of information for which he seeks access. This took up almost the entire spare space on the page which did not leave enough space to insert the 'Kind regards, Ray' words.

April 2020 access application (IASU-2020-1816)

Again, the Tribunal has been provided with a copy of the applicant's April 2020 access application. As noted above, this application is a duplication of the January 2020 access application, with an additional five Section 2 pages. These additional Section 2 pages are numbered, in the same handwriting, 16 to 20. Pages 17 to 20 include the following incident dates: 20 August 2019 - 25 March 2020 (page 17), Jan 2017 - March 2020 (page 18), 12 November 2019 (page 19) and 20 August 2019 - 25 March 2020 (page 20). Pages 16 and 19 of the Section 2 pages include an Event number, with Event number on page 19 being the same Event number and incident date contained on page 15 of the Section 2 pages
Other than page 19 of the Section 2 pages, there is a list of 10 or more items/categories of information for which the applicant seeks access. On page 19, the information for which the applicant seeks access is a single email by a specified police officer, to a specified Court, on a specified date, concerning the welfare of specified children.
The descriptions of the information for which the applicant seeks access on Section 2 pages marked 16, 17, 18 and 20: 1. appears to include, in part, classes of the information for which the applicant seeks access in one or more of the previous 15 pages; 2. is, in part, inherently subjective in that the applicant seeks access to information that is 'tainted' information, 'telecommunications between law enforcement and the cowards that committed these crimes at …' and 'information relied' by police and other agencies; and 3. the creation of a new document (i.e. 'a log of dates and times Police have accessed' the applicant's electronic devices).

The respondent's January 2020 decision

In the January 2020 decision of the respondent, the respondent's delegate found that the applicant's access application was unclear in that it did not contain sufficient information to enable the respondent to identify the parameters of his access application or the government information for which access was being sought. The delegate went on to explain that the respondent needed to 'know with certainty what [the applicant is] seeking so that correct and adequate searches may be undertaken to find the information [the applicant seeks]'. The delegate went on to provide examples of what was considered to be unclear in the applicant's access application.
The respondent concluded by asking the applicant: 1. to consider providing further specific information by 31 January 2020; and 2. to refine his access application in accordance with s 60(4) of the GIPA Act, as in its current form, the respondent would not be able to process the applicant's access request because dealing with the application would be considered a substantial diversion of the respondent's resources; 3. consider removing duplications; and 4. consider limiting his access application to the information he considers to be a priority; and 5. advising the applicant that: 1. the GIPA Act did not make provision for an agency to respond to requests for answers to questions that were asked in an access application; 2. searches could not be made for 'information relied upon' in making a specified decision as the NSW Police record system does not name records in that way. Hence searches cannot be made for information of this kind; and 3. the applicant's access application appeared to be a 'discovery exercise' and not a request for 'specific documents that are known to or are likely to exist; and 1. inviting the applicant to provide information as to the specific documents he was requesting. That is, to 'objectively identify the type of document' for which he sought access.

Subsequent correspondence exchange between the applicant and the respondent

On the same day he was provided with a copy of the respondent's decision, the applicant sent an email explaining that the information for which he sought access all related to the charges that were laid against him on 23 November 2018. He said he sought access to the information leading up to that arrest which he understood went back to 2017. He said that he had deliberately made separate requests and that his priority was all the information sought, some of which he already had. He made suggestions as to searches that might be made for the information sought and asked the respondent for advice as to where he had duplicated his requests.
On 20 January 2020, the respondent's delegate replied by providing examples of duplications in the applicant's access application and where clarification was required for the information sought. The respondent's delegate concluded by requesting that the applicant consider the matters raised in the email together with the matters raised in the 17 January 2020 decision and revise his access application so that it is a valid application.
On the same day, the applicant responded by adding his comments, in red type, against or under the examples provided by the delegate. In his response, the applicant also requested answers to some further questions. That night the applicant sent a further email to the respondent's delegate.
On the following day (21 January 2020), the respondent's delegate replied, by saying that the applicant's access application was still considered to be invalid. The delegate went on to explain: 1. where, in his access application the applicant had The delegate also explained that: 2. in order to process his application, the delegate needed to know with certainty what was being sought by the applicant. The delegate went on to explain as the applicant's access application was unclear, she could not 'send your application to the officers/areas of the NSW Police, together with these emails, and expect them to work out what you are requesting; 3. in the event the applicant's application became a valid application it was likely that he would incur processing fees of $30 per hour; 4. as his application 'may need to be sent to a number of officers, and is currently 18 pages in length, as it stands, you would be paying for each officer to read through all this information and interpret what you are asking for'; 5. what she meant by the word 'discrete' and in this regard she needed to know whether the applicant's separate requests for information such as search warrants were in fact separate requests or whether they were duplications; 6. a request for information 'information relied on' was not a valid access request; and 7. unless consented to by the delegate, it was not open to the applicant to expand on the scope of the information he sought in his access application. The delegate reiterated that, in this case, the applicant was being asked to reduce the scope of his access application.
The respondent's delegate concluded by requesting the applicant to provide a revised access application which included the suggested changes and feedback that were provided to him previously.
On 22 January 2020, the applicant responded by saying he would send a revised access application the next day. He also included in his response, his comments (in red type) under the matters raised by the delate in his/her email of 21 January 2020.
The respondent's delegate responded the following and said: 'I look forward to receiving your revised GIPA Application and ask that you provide this by 31/1/20'.
In an email sent to the respondent on 27 January 2020, the applicant acknowledged that he had been requested to provide a revised access application by 31 January 2021 and went on to say that he had a right to access the information sought and requested that the search for the information be reinstated.
On 6 February 2020 the applicant sent an email to the respondent's delegate asking her to confirm that she had started the search for the information they had agreed to. The respondent's delegate replied on the same day and noted that on 17 and 23 January 2020 he been requested to provide information to make his access application valid. She noted that the applicant had said in his email of 22 January that he would send a revised application on the following day and as no revised application was received, his access application remined invalid and his application fee had been refunded.
On 25 February 2020, the applicant again sent an email to the respondent's delegate requesting a date on which he should expect being provided with access to the information he had sought access to. The respondent's delegate sent a reply on the same day advising that the applicant's access application was invalid and was closed. The delegate also noted that the application fee had been refunded to the applicant and if he wanted the information, he had to make a new valid access application.
As I have noted above, on the following day, 26 February 2020, the applicant lodged matter file number 2020/00062669.
On 28 February 2020, at the request of the applicant, the respondent's delegate provided the applicant with a copy of his invalid January 2020 access application and advised him that he was welcome to make another access application for the documents he sought access to, but he needed to pay the application fee to make that application valid.
As noted above, the access application submitted by the applicant on 2 March 2020 was not accompanied by the required $30 fee: GIPA Act s 41(1)(c). The application was not 'received' by the respondent until the applicant had made that payment: GIPA Act s 41(3). This occurred on 14 April 2020 - hence this is the date on which it was received by the respondent.
On 15 April 2020 the respondent wrote to the applicant requesting that he narrow the scope of his application as in its current form it seeks access to a large volume of information. The respondent went on to ask the applicant to 'in the first instance' that he 'refine the application to request only the specific records you require, as in our experience this would be more manageable.'
On 21 April 2020, the applicant responded to the respondent saying: 'I had another look, all the applications are narrow, most are short. Please explain which ones you are specifically looking for, thanks.'
As I have already noted, on 24 April 2020 the respondent's delegate determined to refuse to deal with the applicant's access application because dealing with the application would require an unreasonable and substantial diversion of the respondent's resources.
In deciding to refuse to deal with the applicant's access application, the respondent's delegate said he had undertaken the task of calculating the amount of time spent by the respondent in dealing with access applications the applicant had made in the preceding 12 months. The delegate noted that during this time the respondent had received a total of 69 GIPA applications from the applicant and other person who were believed to have been acting in concert with the applicant. The delegate also found that the March 2020 access application represented the 'whole' of the applicant's previous access applications and that 80 hours plus had been spent in dealing with those access applications.
The applicant sought review of the respondent's 14 April 2020 decision by the Information Commissioner. On 12 June 2020, the Information Commissioner completed her review and provided the parties with a copy of her report. In that report, the Information Commissioner recommended that the respondent make a new decision by way of internal review having regard to the guidance provided in her review report. That guidance primarily related to the inadequacy of the reasons given by the respondent's delegate in his decision.
The respondent did not and has not conducted the recommended internal review. Instead, as I have already noted, in these proceedings the respondent submits that the correct and preferable decision regarding the April 2020 access application of the applicant is that it is also not a valid application.

GIPA Act

The objects of the GIPA Act and the intention of Parliament as to the how the Act is to be interpreted and how discretions are to be applied are set out in s 3 as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The term 'government information' is defined in s 4(1) of the GIPA Act to mean 'information contained in a record held by the agency'. The word 'record' is broadly defined in cl 10 of Sch 4 of the GIPA Act, but expressly excludes 'the knowledge of a person': GIPA Act, Sch 4 cl 10(3).
Part 2 of the GIPA Act contains provisions that set out the general principles that are to be applied by an agency in the administration of the Act. Included in this Part is: 1. section 9(1) which provides that a person who makes an 'access application' for 'government information' has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act unless there is 'an overriding public interest against disclosure' of the information; 2. the term ''access application' is defined in s 4(1) of the GIPA Act to mean 'an application for access to government information under Part 4 that is a valid access application under that Part'; and 3. section 13 sets out the test for determining whether there is 'an overriding public interest against disclosure' of government information. It is unnecessary to deal with this test in these applications as the decisions the subject of review do not involve issues concerning the disclosure of government information. Instead, as noted above, the decisions the subject of review primarily relate to the validity of the applicant's access applications.
As noted above, Part 4 of the GIPA Act contains provisions relating to how a valid access application is to be made, how a valid access application is to be dealt with and what decisions a government agency can make in regard to such applications.

Making an access application

Division 1 in Part 4 contains provisions about how an access application is to be made. In this case, the relevant provision is s 41 which relevantly provides as follows: 41 How to make an access application (1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements) for access applications - (a) it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2), (b) it must clearly indicate that it is an access application made under this Act, (c) it must be accompanied by a fee of $30, (d) it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application, (e) it must include such information as is reasonably necessary to enable the government information applied for to be identified. Note - See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application. See also section 52 (3) concerning assistance to be afforded by an agency to an access applicant.
Section 42 makes provision for an access application to include submissions as to any applicable public interest consideration, requests for a discount in processing charges, or any other information the access applicant thinks might be relevant.

Transfer, amendment or withdrawal of access applications

Division 2 of Part 4 contains provisions for the transfer, amendment or withdrawal of an access application. The right of amendment is set out in s 49, which relevantly provides as follows: 49 Amendment of application (1) An access application may be amended by the applicant at any time before the agency decides the application. Notice of the amendment must be received by the agency before the agency decides the application. (2) An amendment to reduce the scope of the information applied for does not require the consent of the agency but any other amendment cannot be made without the consent of the agency. Note - A decision by an agency to refuse to consent to an amendment is not a reviewable decision (but a fresh access application can be made).

How access applications are to be dealt with

Division 3 of Part 4 contains provisions setting out how an agency is to deal with an access application. Included in this Division is a provision requiring the agency to make an initial decision as to the validity of the access application, and what searches the agency is required to undertake for the information sought.

Valid/Invalid access applications

Section 51(1) and (2), in Division 3 of Part 4, provides that, within five days of receiving an access application an agency is to decide whether the access application is a valid or invalid application and to notify, in writing, the access applicant of its decision.
Where an agency decides that the access application of the access applicant is a valid application, s 51(3) sets out the information the agency is required to include in its notice/acknowledgement to the access applicant.
Section 51(4) provides that where an agency has acknowledged that an access application is a valid application, this does not prevent the agency from subsequently deciding that the application is not a valid application. And s 51(5) provides that an agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5 of the GIPA Act.
Where an agency decides that the access application of the access applicant is NOT a valid application, s 52(1) sets out the information the agency is required to include in its notice/acknowledgement to the access applicant. And s 52(3) provides that, where an agency has decided that an access application is invalid, the agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist the applicant to provide the information, as may be necessary, to enable the applicant to make a valid access application.

Searches for the information held by the agency

Section 53 provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Division 4 of Part 4 contains provisions that set out what decisions an agency can make in determining an access application.

Time within which an access application is to be decided

Section 57 in this Division provides that an agency is to determine an access application within 20 working days after it received the access request.

How an access application is to be decided

Section 58 in this Division prescribes what decisions can be made by an agency in determining an access application, which includes 'deciding to refuse to deal with the application': GIPA Act s 58(1)(e).
Section 60 sets out the circumstances in which an agency can decide to refuse to deal with an access application, including where 'dealing with the application would require an unreasonable and substantial diversion of the agency's resources': GIPA Act s 60(1)(a).
Section 60(2) provides that in deciding whether to deal with an access application would require an unreasonable and substantial diversion of its resources, the agency 'is not required to have regard to any extension', as agreed with the access applicant, 'of the period within which the application is required to be decided'.: GIPA Act s 57.
Section 60(3) to (3B) prescribe additional matters the agency can consider in determining whether dealing with an access application would require an unreasonable and substantial diversion of its resources.
Section 60(4) provides that, before refusing to deal with an access application on the grounds that the application would require an unreasonable and substantial diversion of its resources, the agency must give the applicant a reasonable opportunity to amend the application.
Where an agency does decide to refuse to deal with an access application on the grounds that the application would require an unreasonable and substantial diversion of its resources, the agency must give notice of that decision, including its reasons for that decision.

Applicant

In each application for administrative review the applicant said that the decision of the respondent the subject of that application was wrong.
In his written submissions of 2 June 2021, the Guardian ad Litem noted that these applications relate to 'two of his [the applicant's] many GIPA applications that have been rejected by the respondent'.
He described the applicant as being a vulnerable person who was 'trying to use the GIPA Act to find out why he became a Target, and why his life has been irreparably damaged by Police'.
The Guardian ad Litem also submitted that: 1. it will be for the Tribunal to decide whether the January 2020 decision of the respondent is the correct and preferable decision given the advice and assistance that was provided by the delegate; 2. his reading of the GIPA Act suggests that the delegates attempt to provide advice and assistance was in accordance with the correct processes under that Act; 3. regarding the April 2020 access application of the applicant and the subsequent decision of the respondent: 1. the respondent accepted the applicant's April 2020 access application as a new access application; 2. while, on 27 January 2021, the respondent 'described its decision to deal with the two different applications in two different ways as "regrettable"'', on 18 May 2021 the respondent confirmed that 'these applications were different'; 3. the respondent's change of grounds for refusal (from 'substantial diversion of resources' to 'not a valid access application') requires a new notification to be given to the applicant that includes both the reason why it is not a valid access application, and a reference to the relevant provisions of the Act'. Hence, the orders that should be made regarding application file number 2020/00193295 are that the respondent be directed to: 1. 'inform' the applicant that his March 2020 (i.e. April) access application is not a valid access application in its current form and identify the specific provisions under the GIPA Act on which the April 2020 decision has been made; 2. give the applicant detailed advice as to which 'documents' are disputed; and 3. provide the applicant with detailed advice and assistance as to how his March 2020 access application could be refined and reduced so that dealing with it is not an unreasonable diversion of resources.

Respondent

In support of her case the respondent relies on: 1. the content of the applicant's January 2020 and March 2020 access applications and the email correspondence between the applicant and the respondent that followed the January 2020 decision of the respondent; and 2. the submissions filed on; 1. 5 February 2021 regarding the January 2020 decision; 2. 21 May 2021, regarding the April 2020 decision; and 3. 11 June 2021, in reply, regarding both matters.
In the submissions of 5 February 2021, the respondent reiterated the findings of the respondent's delegate, as set out in the January 2020 decision and those contained in the email communications of the delegate that followed in response to the matters raised by the applicant. The respondent also noted the then recent decision of the Appeal Panel in Department of Justice v Zonnevylle [2020] NSWCATAP 126 (Dept. Justice v Zonnevylle) concerning the proper construction of s 41(1) of the GIPA Act. In this regard, the respondent noted the following findings of the Appeal Panel concerning the proper construction of s 41(1): 1. 'On a plain reading of the text of s 41(1), each of the requirements of paragraphs (a) - (e) must be complied with' - at [37]; 2. S 41(1)(e) 'requires the agency to make an evaluative judgement as to whether the information provided enables the government information applied for to be identified' and if it does not, the application is invalid - at [38]; and 3. Noting that the GIPA Act contemplates that an applicant can apply for more than one item of government information (s 58(2)), 'the plain meaning of the words 'the government information' in s 41(1)(e) is that all the government information applied for. Parliament has not identified a sub-set of the government information applied for which should be carved out from the application' - at [39].
Based on the findings of the Appeal Panel, the respondent contended, for the reasons set out in the January 2020 decision of the respondent's delegate and the email correspondence thereafter, the applicant's January 2020 access application did not enable all the government information for which the applicant sought access, in that application, to be identified. Hence it was an invalid access application.
In the submissions of 21 May 2021, the respondent formally submitted that, for the same reasons that the applicant's January 2020 access application was found to be invalid, the correct and preferable decision regarding the April 2020 access application of the applicant was also invalid.
In the May 2021 submissions, the respondent noted that the further five pages of the applicant's March 2020 access application did not clarify what was contained in the earlier 15 Section 2 pages. Instead, each page contained further matters or items. The respondent contended that these further matters or items were also lacking in clarity as to the parameters and nature of the information requested. Examples of where the access application lacked clarity were provided, and the respondent went on to contend that due to the lack of clarity it was not possible to perform the required searches or undertake inquiries to enable responsive information to be identified.
In the submissions of 11 June 2021, in response to the applicant's submissions, the respondent submitted that, before any consideration or review of the April 2020 decision occurs, a determination as to the validity of the applicant's January 2020 access application should be made because: a. a determination of the validity of an application for information necessarily precedes any consideration as to how an access application should be dealt with; and b. any consideration of the resources that would be required to deal with an application necessarily requires some degree of certainty as to what the application is requesting, and what volume of information would be responsive to that request.

Consideration

In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [25] the Appeal Panel noted that there is a very structured approach to the decision-making task of an agency when dealing with an access application. That task, as I have noted above, is required to be made within specified time frames, consistent with the objects and stated intention of Parliament as set out in s 3 of the GIPA Act. In my view, the same structured approach applies to the making and receiving of a valid access application.
Consistent with this structured approach, it is appropriate to consider and determine these applications in the same order the decisions of the respondent were made, which is the same order in which the external review applications were lodged.
However, before I deal with the decisions the subject of review, I will briefly deal the decision of the Appeal Panel in Dept. Justice v Zonnevylle and the more recent decision of the Appeal Panel in Jeray v Blue Mountains City Council [2021] NSWCATAP 310 (Jeray).

Zonnevylle

In Dept. Justice v Zonnevylle, at [46], the Appeal Panel noted that in deciding whether an access application is or is not a valid application, this involved a two-step processes: 46. Section 51 is headed "Initial decision as to validity of application." It applies whenever an agency receives "an application for access to government information" whether that application is a valid application or not (Section 4(1) defines "access application" to be a valid access application). If "it appears" that "the application is intended to be an access application" the agency is to consider whether it complies with each of the formal requirements listed in s 41(1). Consideration of validity is a two-step process. First, the agency must determine whether "it appears that the application is intended to be an access application". Secondly, the agency must decide whether the application is a valid application.
In the Zonnevylle appeal, the parties accepted that the specific item in issue in the access application of Mr Zonnevylle did not meet the requirements of s 41(1)(e) of the GIPA Act. However, what was in issue was whether this specific item was severable from the other items in the access application of Mr Zonnevylle or did the proper construction and application of s 41(1)(e) mean that the entire access application was invalid: Dept. Justice v Zonnevylle at [3].
In that case, in the original decision of the Tribunal, the Tribunal found that item 10c.xiii of Mr Zonnevylle's access application did not comply with the 'identification requirement' in s 41(1)(e) in that it did not sufficiently identify what was meant by the term 'request for compensation sought as a result of an NCAT review': Dept. Justice v Zonnevylle at [26]. On appeal the parties did not dispute this finding.
What was in dispute was the Tribunal's finding that item 10c.xiii was severable from the other items in Mr Zonnevylle's access application: Dept. Justice v Zonnevylle at [27].
In upholding the appeal by the agency, at [9], the Appeal Panel held that the words 'the government information' in s 41(1)(e) meant 'all the requested government information, not a several part of that information'. Its reasoning for that conclusion was based on the ordinary and grammatical meaning of s 41(1)(e) (at [37] to [39]: see above), the legislative context of s 51 (at [44] to [48]) and the objects of the GIPA Act (at [55] to [61]). which expressly refers to 'all' government information: see at [37] to [39] where the Appeal Panel said: 37. Section 41 sets out five requirements (the formal requirements) with which a request for government information must comply for it to be a valid access application. By stating that the consequence of non-compliance is invalidity, the legislature has avoided any debate as to whether an act done in breach of that provision is invalid: Project Blue Sky v Australian Broadcasting Authority (1998 HCA 25 at [93]; City of Port Adelaide Enfield v Minister for Transport and Urban Planning [1999] SASC 73; (1999) 73 SASR 22. On a plain reading of the text of s 41(1), each of the requirements at paragraphs (a) - (e) must be complied with. 38. The first four formal requirements in s 41(1)(a) - (d) require that an application: be in writing; be posted to or lodged with the agency; clearly indicate that it is an access application; and be accompanied by a fee and state the name and address of the applicant. The "requirement to identify government information" in s 41(1)(e) is that the application "must include such information as is reasonably necessary to enable the government information applied for to be identified". That provision requires the agency to make an evaluative judgment as to whether the information provided enables the government information applied for to be identified: s 41(1)(e). If it does not, the application will be invalid. 39. The GIPA Act contemplates that an applicant may apply for more than one item of government information: see, for example, s 58(2). The plain meaning of the words "the government information" in s 41(1)(e) is all the government information applied for. Parliament has not identified a sub-set of the government information applied for which should be carved out from the application.
At [42] and [43] the Appeal Panel went on to summarise its reasoning and conclusions as follows: 42. In our view, the ordinary and grammatical meaning of the text of s 41(1)(e) is that, to be valid, an application for government information must include such information as is reasonably necessary to enable all the government information applied for to be identified. Applying the contemporary approach to statutory construction, we need to consider the purpose of the requirement to identify the government information as revealed by the legislative context, the objects of the GIPA Act and the consequences of construing that requirement in its ordinary or grammatical sense. That overall context will be relevant if it assists in fixing the meaning of the requirement to identify the government information. 43. We have concluded from the overall context that the purpose of s 41(1)(e) is to provide certainty as to when the "legally enforceable right" to be provided with access to government information arises. That right arises when a person makes a valid access application: ss 4, 9 and 41. The requirement to identify the government information ensures that an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for. …
At [44] the Appeal Panel said: 44. There is no power given to an agency by s 51, or by any other provision in Part 4, to treat any application which does not comply with the requirement to identify the government information, as partly valid and partly invalid. That situation may be contrasted with other provisions in Part 4, which do provide for an application to be split. We address s 43 and s 44 in more detail below.

Jeray

In a more recent decision of Jeray, the Appeal Panel considered the meaning of the 'identification' requirement in s 41(1)(e) of the GIPA Act.
In that case, the appellant, Mr Jeray, appealed the decision of the Tribunal that his access application for 'all records concerning the North Face 100/Ultra Trail event' was invalid because it did not comply with the 'identification requirement' in s 41(1)(e) because (see at [4] of the appeal Panel decision): 4. …: You have not provided enough information for Council to identify the records you are seeking. You have not specified a time frame/date range and you have not provided any information about the type of records/documents you are seeking access to in relation to this event.
In allowing the appeal the Appeal Panel said: 15. Council submitted on appeal that Mr Jeray is seeking a vast amount of material which is stored in multiple locations and, even using search terms, it would be difficult to find them all. These submissions do not address the issue. The issue is whether the application is valid, not whether any search for information would, for example, "require an unreasonable and substantial diversion of the agency's resources": GIPA Act, s 53(5). 16. We appreciate that in Zonnevylle, the Appeal Panel identified the purpose of the identification requirement as being to ensure that "an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for". While the purpose of the identification requirement is to enable the agency to perform its functions under the GIPA Act, that should not be confused with the meaning of the identification requirement. Section 41(1)(e) merely requires that an applicant provide such information as is reasonably necessary to enable the government information applied for to be identified. 17. Contrary to the suggestion in the reasons Council gave for its decision, the identification requirement does mean that an applicant has to confine an application to a particular time frame or to particular types of records or documents. The fact that the requested information is vast or that the information is difficult to locate, does not make the application invalid. 18. At [14], the Tribunal quoted another passage from Zonnevylle. At [42] of that case, the Appeal Panel held that "the ordinary and grammatical meaning of the text of s 41(1)(e) is that, to be valid, an application for government information must include such information as is reasonably necessary to enable all the government information applied for to be identified". That conclusion was drawn in relation to an application which had severable parts. Some parts of the application contained enough information to enable the government information applied for to be identified but others did not. The Appeal Panel decided that the identification requirement applies to all the government information applied for. That means that an application for government information is either wholly valid or wholly invalid. There were no severable parts of Mr Jeray's application, so the Appeal Panel's reasoning on that point in Zonnevylle is not relevant to this case. 19. For the reasons we have given, the Tribunal erred in the way it construed the identification requirement. Rather than focusing on the wording of the provision, the Tribunal focused on the reasonableness of the application and the ability of Council to perform its functions. It follows that the Tribunal's decision to affirm the agency's decision should be set aside. … 20. In our view, when the identification requirement is construed correctly, it is apparent that Mr Jeray's application does include "such information as is reasonably necessary to enable the government information applied for to be identified". He has identified the information he is applying for - "all records concerning the North Face 100/Ultra Trail event". Council's evidence and submissions relate to the broad scope of the application, the time it will take to identify the information and the risk that some information will be missed. None of those issues are relevant to the question of validity.

Application file number 2020/0062669

In my opinion, an objective reading of the applicant's January 2020 access application and the form in which it was made, it is not an application for access. That is, it is not a single access application for access to government information - instead it is 15 separate applications for access, where each Section 2 page is in fact a separate access application, with the front and back pages of the respondent's pro-forma 'Access Application' applying to each Section 2 page.
As I have noted, other than page 15, the applicant has signed off on every page. Page 15 appears to be unsigned because there was no space left on the page. Furthermore, no Section 2 page is identified as an attachment to or containing further information for one or more of the other Section 2 pages. Instead, each Section 2 page is self-contained in that it sets out the information sought by the applicant by reference to the details inserted by the applicant at the top of the page (e.g. the Event number, the incident date, who/where reported to and the involved party). On this basis, in the absence of the respondent having agreed to waive or reduce the application fee for the 14 remaining access applications, these applications would also be invalid applications: GIPA Act s 41(1)(c). In this regard it is open to the respondent to waive or reduce the application fee, under s 51A of the GIPA Act, either before or after the application was made.
Nevertheless, as the respondent dealt with the applicant's access application as a single application, I have considered it in that context. Hence, the issue is whether, as contended by the respondent, there are items in the applicant's 15-page access application which fail to meet the requirement of s 41(1)(e). As noted above, even if I were to find that a single item in the applicant's 15-page access application fails to meet this requirement, this will result in the entire access application being invalid: Dept. Justice v Zonnevylle.
In support of her case the respondent points to several items of information requested by the applicant which are said do not meet the requirement of s 41(1)(e) because they lack clarity, are 'inherently subjective', or ask questions and request the creation of a new document containing the information requested. These items are as follows: 1. items that lacked clarity as to the parameters and nature of information requested: 1. Section 2 p 1 : 1. '[Provide] a copy of all documents, emails any record of interviews, communications, notes, and memorandum, video or audio recordings between Police and Human Services/ CentreLink Jan 2018-Nov 2019'. 2. '[Provide] a copy of all documents, emails, any record of interviews, communications, notes, and memorandum, video or audio recordings between Police and Legal Aid'; 1. Section 2 p 3: 1. '[a] copy and transcript of all the recorded telephone calls made by police to other people related to an investigation about [the applicant] that have not been identified in this request'; 1. Section 2 p 5 : 1. '[a] copy of all correspondence with dates and times, emails, notes, memo's statements, affidavit's and C.O.P.S entries between the Police another law enforcement agencies with [X] and the principal at [Y] School and [A] from the Department of Education'; 1. Section 2 p 9 : 1. '[All] documents that relate to responses or comments, requests for responses or comments, or feedback arising from or actions taken by reason of NSW Police investigators including any notes or memoranda or other documents recording any meetings in respect to NSW Police investigation and other Law enforcement related to [the applicant] between April 2017 to 23 Nov 2019'; 1. Section 2 p 15 : 1. with respect to an incident on 12/11/19 and Event number ending in 688 - 'COPS database entries (1) the recording of events; and (2) the intelligence from Eagle Eye entries and access to database prior to police attending and after police left the premises. Periodical copies of the database 2 weeks before and the incident until one month after the incident'. 1. items that are 'inherently subjective': 1. Section 2 p 6 : 1. '[Copy] of evidence or sufficient information that sets out the reasons why police believe things connected with the particular offence [the applicant] was charged with on 23 Nov 2018 ...' 2. '[Provide] evidence, new or old intelligence that the applicant is involved in...' 3. '[Provide] proof the search was reasonable required as part of the case and the charges related to the case'; and 4. '[information] the police relied on from ASIO, AFP, NSW Crime Commission or any other Law enforcement agencies that led police to believe...; 1. Section 2 p 15 - '[Please] provide the intelligence, the tainted information that led police to...' 1. '[Provide] all police notes, memos, reports and any other verbal and written material that participated in breaking the law and police misconduct'. 1. items that asked questions and request the creation of a new document: 1. Section 2 p 12 : 1. '[Do] any documents, emails, any records of interviews, communication, notes, and memorandum, video or audio recordings exist between Police and Human Services, CentreLink between Jan 2018-Nov 2019.' 2. '[Do] any documents, emails, any records of interviews, communications, notes, and memorandum, video or audio recordings exist between Police and Legal Aid between Jan 2018- Dec 2019.' 3. '[Do] any documents, emails, any records of interviews, communication, notes, and memorandum, video or audio recordings exist between police and Department of Education between Jan 2018-Dec 2019. '
The respondent contends that each of the abovementioned items do not contain sufficient information to enable the information for which the applicant seeks access to be identified so that correct and adequate searches for that information can be made in accordance with its obligations under s 53 of the GIPA Act.
As a general rule, GIPA access applications are dealt with by officers of the agency who have no knowledge of the information sought by an access applicant or the events to which the information relates. In this case, the NSW Police Force being a very large organisation, GIPA access applications are sent to and processed by its review officers in InfoLink Unit (see section 11 of the respondent's pro-forma 'Access Application'). In this case, the review officer is not a Police Officer, but delegated to process and decide GIPA applications on behalf of the respondent. As explained in the delegate's 17 January 2020 decision and subsequent emails, 'police documents are typically filed according to an event and a person', there is no central file for correspondence with external agencies. The delegate also noted that in some cases an access application will need to be sent to specified police officers or areas of Police Command where specific information is held. Hence, the need for the access application to contain information as is reasonably necessary to enable the information applied for to be identified by the InfoLink Unit officer dealing with the access application. It is in this context, that I understand the delegate to have said that correct and adequate searches could not be made.
Regarding the items set out at paragraph 101(1)(a) above, I note that in Section 3 of the respondent's pro-forma 'Access Application', the applicant ticked the box which said he was seeking access to his personal information, namely information about himself. Hence, it is difficult to understand why the items in paragraph 101(1)(a) lack clarity. Given the dates within which the information is sought, such searches may of course involve a substantial and unreasonable diversion of the respondent's resources, but I am not satisfied that these items fail to meet the requirements of s 41(1)(e).
As noted by the Appeal Panel in Jeray at [20], to satisfy the requirement in s 41(1)(e) the access applicant must include in his/her access application 'such information as is reasonably necessary to enable the government information applied for to be identified.' In other words, does the applicant's access application contain sufficient information, as is objectively necessary, to enable the government information for which access is sought to be identified and not whether the access application contains sufficient information so that correct and adequate searches can be made. For the reasons stated above, I am satisfied that the items in s 101(1)(a) satisfy this requirement.
Regarding the items set out at paragraph 101(1)(b), (c), (d) and (e) above, I am satisfied that these items fail to meet the requirements of s 41(1)(e) because they do not contain sufficient information, as is objectively necessary, to enable the government information for which access is sought to be identified.
The item set out in paragraph 101(1)(b) is a request for information relating to an un-named and un-identified investigation about the applicant for which the applicant has not sought access in his request. Under the GIPA Act, it is not for the agency to conduct enquiries and search for information the access applicant has been unable to identify in his/her access application. Instead, it is for the access applicant to provide sufficient details in his/her access application of the information sought that enables the respondent to conduct a search for the information on the NSW Police Force available record keeping system. I find that the item set out in paragraph 101(1)(b) fails to do so and thereby fails to meet the requirements of s 41(1)(e).
I make a similar finding regarding the items set out in: 1. paragraph 101(1)(c) - because this item, relates to persons other than the applicant, does not identify what the correspondence relates to and fails to identify the nature of the alleged involvement of the law enforcement agencies of the Commonwealth in the incident date range of August 2017 - 23 November 2019; 2. paragraph 101(1)(d) - the wording of this item is very difficult to understand, but leaving this aside, the item fails to identify the investigation or actions taken by NSW Police between April 2017 and 23 November 2019 to which the information sought relates to or arises from. The information sought also contains a subjective element, namely 'feedback arising from actions taken'; and 3. paragraph 101(1)(e) - because this item fails to identify the nature of the information sought from the Eagle Eye entries and the COPS database entries prior to and after the specified incident of 12 November 2019. As it stands, this item would include all Eagle Eye entries for an unspecified time and all information on the database for the specified times.
I am also satisfied that the items set out in paragraph 101(2) fail to meet the requirements of s 41(1)(e), because they do not contain sufficient information, as is objectively necessary, to enable the government information for which access is sought to be identified. Instead, the items are inherently subjective in nature in that the applicant seeks access to the evidence and information 'that set out the reasons why police believe…' at the specified time, what information the named police officers 'relied on' at the specified time, 'proof' that a specified/asserted search was 'reasonable' and the 'tainted information that led police to…'.
In Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 (Zonnevylle v Dept Ed and Communities) at [55] - [56], the Tribunal noted that access items that are inherently subjective make it difficult for an agency to identify information it holds that answers such requests, as what the agency may regard as 'proof' may not necessarily be regarded as such by the access applicant. Nor, as noted by the Tribunal, is the GIPA Act a mechanism whereby an agency is required to 'prove' the correctness of its actions/decisions.
As noted above, the objects of the GIPA Act includes giving members of the public an enforceable right to access 'government information', which is defined in s 4(1) to mean information contained in a 'record' held by the agency. The knowledge of a person is expressly excluded from the meaning of a 'record': GIPA Act, Sch 4 cl 10(3). In my view, the applicant's requests for information and evidence concerning the 'beliefs' of named police officers at a specified time and information as to what information the named police officers 'relied on' at a specified time is unlikely to have been recorded as such in a record held by the respondent. Instead, it is information which is more likely to have formed part of the knowledge of the named police officers at the specified time and hence not government information for which access can be sought under the GIPA Act. Alternatively, I find that these items, because of their subjective nature, fail to include information that is objectively necessary to enable the government information applied for to be identified.
As I have noted above, the GIPA Act does not include a requirement that an agency provide information that 'proves' that a specified/asserted search was 'reasonable'.
While the applicant is clearly dissatisfied with the actions taken by police, the GIPA Act is not the vehicle through which the applicant is able to have that dissatisfaction addressed. As I have noted several times, the GIPA Act makes provision for every member of the public to make an application for access to information held in a record of a government agency. While the applicant's dissatisfaction with the agency might of relevance in applying the s 13 public interest test, this is predicated on the applicant having made a valid access application to the respondent which includes a clear description of the government information sought and the respondent holds that information but finds that there is a public interest consideration against the disclosure of that information.
Finally, I also agree that the applicant's request for 'tainted information' is inherently subjective and indicative of the applicant's dissatisfaction with the actions of the police. Hence, for the reasons I have already given this item of the applicant's access request fails to include information that is objectively necessary to enable the government information applied for to be identified.
I am also satisfied that the items set out in paragraph 101(3) above fail to meet the requirements of s 41(1)(e), because these items do not seek access to specified information held by the respondent. Instead, these items seek answers to specific questions as to the existence or non-existence of information held by the respondent and thereby fail to meet the requirements of s 41(1)(e).
I note s 75 of the GIPA Act makes provision for an agency to create a new record. However, that section only applies where a valid access application has been made.
Accordingly, in conclusion, for the reasons set out above, I am satisfied that the applicant's January 2020 access application is an invalid application as the application does not include such information as is reasonably necessary to enable the government information to be identified.
I am also satisfied, that in her notice advising the applicant that his access applicant was invalid and her subsequent email exchanges with the applicant, the respondent met her obligations, under s 52(3) of the GIPA Act. That is, I am satisfied that the respondent provided advice and assistance, so far as it was reasonable to expect her do, to enable the applicant to make a valid access application. I note the Guardian ad Litem appears to agree with this finding.
The onus was on the applicant to amend his access application, which he failed to do. Hence, in the absence of the applicant amending his application, and for the reasons set out above, I am satisfied that the respondent has established that her decision of 17 January 2020 is the correct and preferable decision and should be affirmed.

Application file number 2020/0062669

Once again, in my view, this application when objectively assessed is made up of 20 separate access applications and my observations at [98] and [99] above equally apply. In his 21 April 2020 response to the respondent, the applicant appears to agree that his April 2020 access application is made up of 20 separate access applications.
As noted above, the applicant's April 2020 access application is a duplicate of his January 2020 access application with an additional five Section 2 pages. The additional five Section 2 pages do not amend what is contained in the earlier pages. Instead, they include many more items, which are unnecessary to consider given the findings I have made regarding the Section 2 pages numbered 1 to 15.
Hence, my findings at paragraph [107] to ]117] equally apply to the applicant's April 2020 access application and it is unnecessary to consider the items in the Section 2 pages marked 16 to 20.
Hence, the question is whether: 1. the requirements of s 52 have been met; and 2. the Tribunal has jurisdiction to set aside the decision the subject of review and substitute it for a decision that the applicant's April 2020 access application is invalid.
In my view, the requirements of s 52 have been met in so far as they relate to the applicant's April 2020 access application, because: 1. the items for which the applicant seeks access on each of the first 15 Section 2 pages in the April 2020 access application are exactly the same items for which the applicant sought access in his January 2020 access application; 2. included in these items are the items set out in paragraph [107] to [117] above which I have found not to include sufficient information as is reasonably necessary to enable the government information for which access is sought to be identified and based on these findings and the principles set out in Dept. Justice v Zonnevylle the applicant's January 2020 access application, as a whole, failed meet the formal requirements of s 41 of the GIPA Act; 3. the same findings and principles apply to the information sought in the applicant's April 2020 access application because the first 15 Section 2 pages are in the same terms (i.e. duplicates) of the 15 Section 2 pages in the applicant's January 2020 access application. That is, even though the applicant's April 2020 access application contained an extra 5 section 2 pages, for the same reasons set out above, the entire application also failed to meet the formal requirements of s 41 of the GIPA Act; 4. my finding, at paragraph [118] above, that the respondent met her obligation under s 52 in respect of the applicant's January 2020 access application (a finding with which the Guardian ad Litem appears to concede). Despite the advice and assistance given to the applicant by the respondent in accordance with s 52, the applicant's April 2020 access application was a duplicate of his January 2020 access application (i.e. without any amendment as suggested by the respondent) plus another 5 Section 2 pages. These additional pages increased the scope of the applicant's access application, which the respondent had advised was not open to him (see email of 21 January 2020 at p 47 of the respondent's bundle re 202/00062669).
As noted above, s 51(4) of the GIPA Act provides that an acknowledgement by an agency of an access application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application.
In this case, the decision the subject of review is not the decision of the respondent that the applicant's April 2020 access application is a valid application. Instead, it is the decision of the respondent to refuse to deal with the applicant's April 2020 access application because dealing with the application would require an unreasonable and substantial diversion of resources.
As noted above, s 63(1) of the ADR Act provides that the role of the Tribunal in administrative review is to decide what the correct and preferable decision is having regard to the material before it.
Section 63(2) of the ADR Act goes on to provide that, for the purpose of determining the correct and preferable decision, the Tribunal may exercise all of the functions conferred or imposed by any relevant legislation (in this case the GIPA Act) on the administrator (in this case the respondent) who made the decision. That is, the Tribunal sits in the shoes of the administrator (in this case the respondent) and decides the matter afresh.
Hence, as it was open to the respondent, having originally decided that an access application was valid, to decide subsequently that the application was invalid, it is also open to the Tribunal to make that decision on administrative review. However, in this case, that decision can only be made if the decision of the respondent to refuse to deal with the application is set aside.
Based on my findings and the orders sought by the respondent, in my view it is appropriate to find that: 1. on the material before the Tribunal, I am satisfied that the respondent has established that the correct and preferable decision is that the applicant's April 2020 access application is an invalid application; and 2. on the basis of this finding the appropriate order is to set aside the April 2020 decision of the respondent and in substitution thereof a decision that the applicant's April 2020 access application is an invalid application is made.
While my findings above dispose of these applications, in my view, on the material before the Tribunal, it is arguable that to deal with the applicant's January 2020 and April 2020 access applications would be an unreasonable and substantial diversion of the respondent's resources.

Unreasonable and substantial diversion of resources

As I have noted above, s 60(3) and (3A) set out the matters an agency may, without limitation, consider in deciding whether dealing with an application for access would require an unreasonable and substantial diversion of resources. However, these matters must also, on balance, outweigh the following matters set out ins 60(3B): (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.
In Commissioner of Police v Danis [2017] NSWCATAP 7 (Danis) at [43] to [45] the Appeal Panel described the purpose of s 60 as follows: 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 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)). 44. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants. 45. For these reasons, it can be said that the objectives of the GIPA Act are advanced, in particular the object set out at s 3(2)(b): It is the intention of Parliament: (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
At [49] the Appeal Panel went on to say: 49. In our view, the Tribunal when reviewing decision to invoke a s 60(1) 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. …
In Ruyters v Commissioner of Police [2020] NSWCATAD 223 (Ruyters) at [23] and [24] the Tribunal described decision-making task under s 60(3A) and (3B) in the following terms: 23 In my view, the task to be undertaken by the Tribunal in balancing the considerations in s 60(3A) and (3B) is similar to that that the Tribunal routinely undertakes in applying the public interest test set out in s 13 of the GIPA Act. … 24 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.
I agree with the approach outlined by the Tribunal, however, I note that the matters prescribed in s 60(3A) do not limit the matters that can be taken into account.
Factors relevant to deciding whether an access application would require both an unreasonable and a substantial diversion of an agency's resources were set out in the decision of the Tribunal in Colefax v Department of Education and Communities (No 2) [2013] NSWADT 130 (Colefax) at [24] to [27]. These factors have been subsequently incorporated into s 60 of the GIPA Act by the insertion of s 60(3A) and (3B), which were by cl 20 in Sch 2 of the Government Information (Public Access) Amendment Act 2018 (NSW).
While it is unnecessary to make any conclusive findings, I note the following from the material before the Tribunal: 1. there can be no doubt that an access application of 15 and 20 pages with 50 plus items for which access is sought would involve a considerable amount of time and potentially a large volume of information. This is particularly so where the descriptions of the information sought are convoluted and unclear and in many cases the information sought spans a two-year period; 2. in these applications, the Guardian ad Litem acknowledged that the applicant has made many access applications under the GIPA Act and has already possession or been granted access to some of the information sought previously; 3. the respondent asserts that, in the previous 12 months to receiving the applicant's April 2020 access application, the respondent's review officers had spent over 80 hours dealing with the access applications the applicant had previously made; 4. the respondent informed the Information Commissioner that it would take at least 40 hours to gather the information sought in the April 2020 access application and it was not possible to estimate the time it would take to process the documents; 5. the time within which a valid access application is to be decided is within 20 working days after the access application was received and in this case there was no agreement sought or made to extend that time; and 6. while the size of the NSW Police Force is large, as the applicant knows, all GIPA access applications are received and dealt with by a small review team (13 officers some of whom are part time) within the InfoLink Police Command which receives about 6,500 access applications each year (see Reyters at [34] and [35]).
Given the above, the time within which an access application is to be dealt with and the time estimated to deal with the applicant's January 2020 or the April 2020 access applications, it is arguable that the limited resources of the respondent to process the many other access applications that are received will be diverted to deal with the applicant's access application. Hence, if this is correct, dealing with the applicant's access application will require an unreasonable and substantial diversion of the respondent's resources.
Hence the question is whether, on balance, these factors outweigh the general public interest in favour of the disclosure of government information and the demonstrable importance of the information to the applicant: GIPA Act s 60(3B).
Consistent with the intent of Parliament, as set out in s 3(2)(b) of the GIPA Act, it is arguable that significant weight should be given to the s 60(3A) factors.
While I make no conclusive findings, I note that while the information sought includes personal information about the applicant, it also includes personal information about other persons, including children. I accept that the information is important to the applicant. However, he says that he seeks access to the information so that he can better understand 'why' certain actions were taken and not to exercise any specific right. He already has in his possession some of the information that he is seeking access to and the GIPA Act is not a vehicle for the applicant to ask for information 'why' certain action was taken by police. This is something he will need to determine for himself from the information he has or seeks access to. The applicant has also been given every opportunity to limit the scope of his access application and has refused to do so. Limiting the scope of his access application does not prevent the applicant seeking access to the removed information in the future, so long as such applications are also validly made.
Hence, it is arguable that less weight should be given to the importance of the information to the applicant. And while significant weight should be given to the general public interest in favour of the disclosure of government information, in this case, it is arguable that on balance the fact that in dealing with the applicant's access application would involve and unreasonable and substantial diversion of the respondent's resources outweighs this factor and the demonstratable importance of the information to the applicant.

Conclusion and orders

For the reasons set out above I am satisfied that the respondent has established that: 1. the correct and preferable decision regarding the applicant's January 2020 access application is that it is an invalid application as it fails to meet the formal requirements of s 41(1)(e) of the GIPA Act; and 2. the correct and preferable decision regarding the applicant's January 2020 access application is that it is an invalid application as it fails to meet the formal requirements of s 41(1)(e) of the GIPA Act.
Accordingly, I make the following orders: 1. A hearing of the applicant's applications is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. In application file number 2020/00062669 - the decision of the respondent made on 17 January 2020 that the applicant's January 2020 access application is an invalid application is affirmed. 3. In application file number 2020/00193295 - the decision of the respondent, made on 24 April 2020, is set aside and in substitution thereof a decision that the applicant's April 2020 access application is an invalid application is made. 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 May 2023

cations lodged by the applicant in 2020. Each application seeks administrative review of a decision made by the respondent, the Commissioner of Police, under the Government Information Public Access) Act 2009(NSW)

Government Information (Public Access) Amendment Act 2018(NSW)

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