Hickey v Secretary, Department of Education

Decision dated 9 November 2020

1. On 9 November 2020, the Respondent wrote to the Applicant's solicitors and provided the Applicant with full access to information sought in those parts of the second amended application that were reasonably manageable within 20 working days. These documents were identified in a letter from Elissa Stathis, Manager Information Access, dated 19 October 2020, in respect of items (a), (b), (c)(i), (e), (f), (g)(i), (h)(ii) and part of item (v).
2. On 10 November 2020, the Manager Information Access provided written advice regarding the remaining request items, the amount of work required, how records are stored and other details that the Applicant's solicitors requested and provided revised time estimates.

Decision dated 10 December 2020

1. On 10 December 2020, the Respondent notified the Applicant's solicitors that it had decided to refuse to deal with the remaining parts of the second amended application, whether as a single application or taken in combination with their other clients, because it estimated that this would require between 431.5 and more than 594 hours' work, and it would require a substantial and unreasonable diversion of its resources: s 60(1)(a) of the GIPA Act. It stated that in making that decision, it considered the factors of the application, the relevant sections of the GIPA Act and the Information and Privacy Commissioner's (IPC) Fact Sheet - Unreasonable and substantial diversion of resources. It referred to s 60(3A) of the GIPA Act, which provides that in deciding whether dealing with an application would require an unreasonable and substantial diversion of its resources, it may, without limitation, take into account: (1) the estimated volume of information involved in the request; (2) its size and resources; and (3) the decision and period under s 57.
2. The Respondent noted that any consideration under s 60(3A) must, on balance, outweigh: (1) the general public interest in favour of the disclosure of government information; and (2) the demonstrable importance of the information to the applicant, including whether the information: (a) is personal information that relates to the Applicant; or (b) Could assist her in exercising any rights under any Act or law. It stated that it considered the following factors under s 60(3A): 1. It estimated the time to process the application as being between 431.5 and more than 594 hours and that it was "reasonably likely" that more than 5,000 pages of records would be produced; 2. Its size and resources. While it conceded that it is a large organisation with a large budget, it has a dedicated resource of 9 officers within the Information Access Unit to deal with applications under the GIPA Act and Freedom of Information Act 1982 (Cth). This unit also deals with Standing Orders for the production of documents to the Legislative Council and responds to subpoenas issued by Courts and Tribunals. It is centrally located in Parramatta and relies on other officers in the various business units that have responsibility for the information to produce the requested information for consideration by the decision-maker. It stated that it normally considers a maximum of 40 to 50 hours' work as being reasonable to allocate to a single application, given its size, the timeframes under the GIPA Act, the number of GIPA Act and other access applications that it receives, and its available resources. It had already undertaken more than 100 hours' work on this application and asserted that most of the remaining items are not held centrally and that responding to many of them will require staff from both WCC campuses to undertake searches of historical records that are stored on-site, or in archived records, in legacy database systems on-site in Walgett or in individual staff records for the period 2014 to 2020. This work would take School Executive and administrative staff away from their primary duties of providing education and support services to students and the community. Further, even If it provided additional staff resources to travel to Walgett to search for the information, staff would need to be available to guide the searches and locate the information, and they would be diverted from their primary duties. In relation to statistical data held by Human Resources and the Centre for Education Statistics and Evaluation (CESE), this work requires specialist skills to locate, extract, collate, produce and verify the data and some of the older information is stored on legacy business systems. This work would divert these business areas away from their core business. 3. The decision period under s 57 of the GIPA Act. Section 57 provides that an agency must determine an application within 20 working days of receipt, although the timeframe can be extended under certain circumstances. It gave the Applicant access to information that could be processed within 20 working days, but stated that it is not possible to deal with the remaining items within the 20 working day period, even with an agreed extension.
3. The Respondent concluded that given the impact on public resources and students, these factors carry very strong weight in favour of refusing to deal further with the application.
4. The Respondent stated that it also considered that: 1. There is a general public interest in favour of disclosure of government information under s 12(1) of the GIPA Act; 2. Disclosure of some of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; 3. Disclosure of some of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public generally, and in particular, with members of the WCC school community; 4. Disclosure of the information could reasonably be expected to inform the general public, and the applicant's clients, about the operation of the agency generally and of the WCC specifically; 5. There is considerable public interest in it using its resources for its primary purpose and dealing with the remainder of the application is likely to divert limited resources, which is not in the public interest; and 6. The Information could assist the Applicant in exercising rights under any Act or law.
5. The Respondent stated that it considered the Applicant's reasons for seeking the information and confirmed that it had already provided personal information in response to 22 applications that were lodged in 2019. The remaining information was not likely to be personal information, as it includes data and correspondence about WCC including data about students and teaching staff and correspondence sent to it, which is likely to contain personal information of third parties. It also noted that it is reasonably possible that the information, or part of it, could assist the Applicant to pursue litigation or discrimination action against it regarding the conduct of the WCC, although it is not clear from correspondence whether this is her intention. If so, the factor carries considerable weight, but there are other methods available to the Applicant to obtain information if legal action is being considered, which reduces the relative weight.
6. The Respondent noted that the Applicant's solicitors originally applied for access more than 15 months ago, as separate applications, and that while this had been reduced to a single application and in some instances the scope of it was refined and reduced, this only marginally reduced the time estimate. It therefore gave this factor moderate weight and stated, relevantly: You consider that department's assessment of the reasonableness of the application having regard to the department's resources must take into account that you are representing 11 adult clients and 22 students. Section 60(3) of the GIPA Act provides in deciding whether dealing with an application would require an unreasonable and substantial diversion of resources, the agency is entitled to consider two or more applications 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 Therefore, I attribute relatively little weight to this consideration. Together, these considerations about the public interest and your clients' interests carry considerable weight in dealing with the application.
7. The Respondent stated that in balancing the considerations under s 60(3A) and (3B), it considered public interest factors in favour of continuing to deal with the application, including considerations under s 12 and the particular factors of this application. It noted that it is clearly important for the Applicant's solicitors to obtain information that may answer their clients' questions have about its operations and those of WCC and these factors carry considerable weight and it has provided information where it was reasonably manageable to do so within the statutory timeframe under s 57. It asserted that there are other options available to the Applicant outside GIPA to obtain information from it, which reduces the weight and also stated, relevantly: I have also considered the factors in favour of refusing to deal further with your request, including the volume of information involved, the time and resources required for the department to continue dealing with these items and the timeframe under section 57. In my assessment, these factors carry significantly more weight. Having regard to the considerations outlined above, on balance, I find that processing the remaining parts of your application would constitute a substantial and unreasonable diversion of resources and have decided to refuse to deal further with your application, under section 60(1)(a) of the GIPA Act…

Internal Review decision dated 9 November 2020

1. The Applicant applied for an internal review of the Respondent's decision dated 9 November 2020, to release some of the documents sought in category (v). However, on 25 January 2021 (the review decision), it notified the Applicant's solicitors that it refused to deal with the remainder of category (v) based on its estimate that the further work required would be between 125.5 and 195 hours.
2. The Applicant applied to the Tribunal for administrative review of both the decision dated 10 December 2020 and the review decision.

The legal principles

1. Section 3 of the GIPA Act sets out its objects, which are to open government information to the public, by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
2. Section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
3. A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act: (s 80(c)). The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and it may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
4. The Respondent bears the onus of proving that its decisions are justified.
5. In accordance with s 60 of the GIPA Act, an agency may decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(a) is relevant to this application and provides that an agency may refuse to deal with an access application where dealing with it would require an unreasonable and substantial diversion of its resources. In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the parties regarding the period within which it is required to be decide an application: (s 60(2)). Ordinarily, an agency must decide an application within 20 working days after it receives it: (s 57(1)).
6. Sub-section s 60(1)(b1) of the GIPA Act is also relevant and gives an agency the power to refuse to deal with an access information if the applicant had previously been provided with access to the information under the GIPA Act. Whether a person has previously been provided with the information under the GIPA Act (or its predecessor, the Freedom of Information Act 1989 (NSW)) is a question of fact and a condition precedent to the exercise of the discretion to refuse to deal with the application.
7. In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel said at [43]: Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of (sic) deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) … Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1) …
8. The Appeal Panel went on to say that when reviewing a decision based on s 60(1) the Tribunal "should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources" (at [49]).
9. As to whether dealing with the application would require an unreasonable and substantial diversion of an agency's resources, ss 60(3A) and 60(3B) provide: (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law.
10. The matters which may be considered under s 60(3A) and (3B) are non-exhaustive and are drawn from previous decisions which determined the factors to be considered in assessing whether an application would require an unreasonable and substantial diversion of an agency's resources.
11. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] (Cianfrano), which was a matter brought under the former NSW freedom of information legislation, O'Connor DCJ held that the relevant matters include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; … (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort … (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as [to] the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency … (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
12. In Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 (Colefax) the Tribunal held that the Cianfrano factors are relevant to an assessment under s 60(1)(a) of the GIPA Act, although the changed context of the GIPA Act requires that discretions must be exercised so as to enhance its objects (s 3(2)(b)) and this could result in "differing weight and importance being accorded to the Cianfrano factors" (at [26]). Colefax also identified that the fact that an applicant is seeking their personal information is a relevant factor in the determination (at [27]).
13. The principles set out in Cianfrano and Colefax remain relevant in considering whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources: Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [18] (Ruyters). In that matter, the Tribunal held that the tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency's resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an application on the basis that it would require an unreasonable and substantial diversion of its resources (at [24]).

The hearing

1. At the hearing on 30 August 2021 and 31 August 2021, Ms Zheng of Counsel appeared for the Applicant, Mr Lloyd of Counsel appeared for the Respondent and Ms Higgins appeared on behalf of the Information Commissioner.
2. Mr Lloyd stated that the primary issue for determination is the proper application of s 60(3A) and (3B) of the GIPA Act, which involves a balancing exercise in deciding whether dealing with the application would require an unreasonable and substantial diversion of the Respondent's resources. In other words, do the factors set out in s 60(3B) outweigh those set out in s 60(3A)?
3. Mr Lloyd referred to a document headed, "Applicant's Revised Categories", which is annexed to her Outline of Submissions dated 16 July 2021. He argued that if the Applicant sought to proceed with the current application based upon these revised categories, the Tribunal lacks jurisdiction to determine the matter because: (1) The reviewable decision was not based on the revised categories; and (2) The GIPA Act does not permit the revision of categories in the manner proposed by the Applicant.
4. Mr Lloyd referred to the Tribunal's decision in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett), in which the Appeal Panel stated, relevantly: 47. In our view, the scheme of the GIPA Act is such that there is no unilateral power given to the agency to change a final decision. The Act has a complex scheme of review - internal review, the possibility of external review by the Information Commissioner, and external review by the Tribunal. It would undermine the scheme if an agency could unilaterally alter the decision at any stage of the review process. In our view, the provisions of the Act proceed on the basis that a decision once made binds the agency, and remains the decision under review, unless clear statutory mechanisms are utilised to alter it… Similarly, the Tribunal may choose, prior to deciding the review application, (to) remit the decision to the agency for reconsideration of the present decision, and the making of a new decision. The new decision may then become the subject of the review application. See Administrative Decisions Review Act 1997, s 65.
5. Mr Lloyd argued that the proposed revision of the categories could be dealt with by remitting the matter to the Respondent for a new decision under s 65 of the ADR Act. However, he suggested that the Tribunal should determine the review of its decisions in relation to the second amended GIPA application as it is likely that the primary issue will arise in any future decisions. While he conceded that the Applicant may have intended for the revised categories to lessen the amount of work required, the revised category (v) is a complete re-write and it does not lessen the amount work that is required. In any event, this cannot be dealt with in a review scenario.
6. Ms Zheng disputed the jurisdictional issue. She stated that the decision in Barrett concerned an agency's power to make a new decision while an application for administrative review is on foot and that is not the scenario in this matter. Further, the Tribunal has previously determined applications where an applicant has reduced the scope of an access application after the reviewable decision was made. For example, in Amos v Western NSW Local Health District [2017] NSWCATAD 359, the Tribunal heard the matter and the Respondent did not raise any objection to jurisdiction. Further, in Learmouth v Secretary, Department of Education [2020] NSWCATAD 109, the applicant sought to reduce the scope of the access application while NCAT proceedings were on foot. Senior Member Mulvey amended the application and the decision made by the Respondent after the case-conference and the Respondent addressed the amendments in its submissions in reply.
7. Ms Zheng argued that many of the Applicant's revised categories involved a narrowing of the categories, including (c) (ii), (d) (i), (ii) and (iii), (i) (i), (k), (l) (iv), (o), (r), (s), (t) (vi) and (u) and category (v) has been substantially rewritten with the aim of reducing its scope. While the Respondent argued that this category would require more than 100 hours' work, it has not filed any evidence about whether the amount of searches etc. required to meet the revised category will be reduced. In any event, the Tribunal clearly has jurisdiction to determine the review application regardless of whether or not it has power in relation to the revised grounds.
8. On behalf of the Information Commissioner, Ms Higgins stated that the Commissioner did not consider the Applicant's amendments in the manner raised by Mr Lloyd.
9. Ultimately, the Applicant did not press her reliance on the revised categories and the Tribunal decided that the matter should proceed to enable the dispute under s 60 of the GIPA Act to be determined.

The evidence

1. The parties prepared an agreed Court Book, which comprised 2 large volumes and a total of 1388 pages of documents.
2. The Applicant relied upon a Statement of the Applicant dated 13 July 2021 (Exhibit A1) and a Statement of Anne Cregan dated 13 July 2021 (with multiple annexures) (Exhibit A2). Neither the Applicant nor Ms Cregan were required for cross-examination by the Respondent and their evidence was admitted without objection.
3. The evidence indicates that during a meeting held in about 2018, and a number of follow-up meetings, the parents and carers of students at the WCC expressed a number of concerns about WCC, including: 1. Children with no identified learning disabilities and reasonable attendance records were graduating functionally illiterate; 2. There was inadequate provision for children with learning disabilities, including identifying those disabilities, making adjustments for those disabilities, or being encouraged not to sit NAPLAN tests; 3. WCC was employing inappropriate measures for dealing with behavioural issues within the student body, including segregation of children with behavioural or learning difficulties without adequate support, excessive use of suspension as a disciplinary tool, and inappropriate involvement of police with the school; 4. There was an extremely high turnover of teachers and Principals at WCC, and the teaching staff were not appropriately trained or experienced to engage and educate the school's student cohort, including being unable to engage with the Aboriginal community and lacking cultural competence to work with Aboriginal children; and 5. WCC was not engaging with parents and was failing to provide adequate information to parents and was not responding to concerns raised by parents or concerned community members.
4. The Applicant stated that she has had three children enrolled at WCC at various times. She has had to remove one child from the School altogether due to concerns about the School's ability to manage bullying. Also, her youngest child, who has been at WCC since kindergarten, was diagnosed with Dyslexia in year 4 or 5, but the School did not identify that learning disability. She is concerned that although she informed WCC of this diagnosis, the School has never engaged with her regarding her child's reading or writing skills and his NAPLAN results indicate that his learning needs are not being properly or adequately supported. She is also concerned about the educational and pastoral support provided by WCC and stated that she has been unable to obtain information about this from the School.
5. The Applicant stated that she wants the requested information so that she can understand what is happening at WCC and explore whether it has "done the right thing" or has acted in breach of its duty of care to its students and the community and whether there may be options of bringing a claim against it in respect of any such breaches.
6. The Applicant also stated that WCC has a well-recognised problem with managing its students' behaviour and that the parents and carers are concerned that it is overly reliant on suspensions, as well as having poorly considered and implemented disciplinary strategies.
7. Ms Cregan stated that the Applicant's solicitors agreed to assist the parents and carers of the students and ex-students of WCC to obtain information from the School, to help them to engage with it about the solutions needed to support the students, and to inform any consideration of whether the Respondent breached any duty of care, engaged in any discriminatory practices on the basis of disability or race, or otherwise failed to act (including by implementing appropriate intervention programs) to respond to data that it was underperforming or to any complaints raised about it.
8. The Respondent relied upon a Statement of Jenni Prendergast dated 15 June 2021 (with multiple annexures) (Exhibit R1) and a Statement of Brett Rigney dated 29 July 2021 (Exhibit R2). Neither Ms Prendergast nor Mr Rigney were required for cross examination and their evidence was admitted without objection.
9. Ms Prendergast stated that in relation to the decision dated 10 December 2020, the Respondent had spent more than 100 hours processing the access application. All relevant search officers provided their estimates of the amount of time required to process the request for documents to Ms Prendergast and this indicates that between 431.5 and 594 hours' of work would be required and this could not be performed within the extended time limit allowed under s 57. She also stated that in relation to the internal review decision, the Respondent's time estimate is between 125.5 and 195 hours' work.
10. Ms Prendergast stated that the current workload of the Respondent's Right to Access Unit (RAU) is very high and that it received 792 access applications in 2020; more than 450 access applications to date in 2021, with the projected volume being over 100; 16 calls for papers under Standing Order 52 of the Standing Orders of the Legislative Council (SO 52 calls); and 148 open matters that are being processed. Ms Prendergast stated that the RAU is currently struggling to cope with the volume of work.
11. Mr Rigney's evidence addresses a single time estimate relating to work required by the Respondent's People Division. He stated that the information sought is not readily accessible and is not accessed through a simple search of one database and he estimated that more than 40 hours' additional work would be required.

Respondent's Submissions

1. The Respondent relied upon written submissions filed on 15 June 2021 and Submissions in Reply dated 30 July 2021 . It argued that ss 60(1)(a), 60(3), 60(3A), 60(3B) and 60(4) of the GIPA Act are relevant to this matter and referred to the decision of O'Connor DCJ in Cianfrano. It also cited the decision in Colefax as authority that the Cianfrano considerations remain relevant and noted that in Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 (Zonnevylle), Senior Member Montgomery applied Cianfrano and stated that the purpose of ss 60(1)(a) and (3) is to prevent a drain on the agency's resources created by voluminous requests.
2. The Respondent argued that it considered all of the relevant s 60 factors in its decision dated 10 December 2020. In particular, it considered: (a) that responding to the application would take between 431.5 and 594 hours' work and produce more than 5000 pages of documents; (b) It usually regards a maximum of 40 to 50 hours' work as being a reasonable amount of time to allocate to a single application; (c) more than 100 hours' work had been done to date; (d) most of the information was not centrally held and would require staff from the two campuses of WCC to undertake searches of historical records stored on site, including legacy records; and (e) the remaining items could not be dealt with within the s 57 timeframe. These factors were weighed against the importance of the information to the Applicant (the consideration under s 60(3B)) and the decision complied with s 560(5) of the GIPA Act.
3. In relation to the internal review decision, the Respondent refused to deal with the remainder of category (v) on the basis that it would take between 125.5 and 195 hours' of work to do so.
4. The Respondent argued that it also considered the public interest factors under s 60(3B) of the GIPA Act, which the Tribunal discussed in Ruyters v Commissioner of Police [2020] NSWCATAD 223 and stated, relevantly: 52. Subsection 60(3B) provides that the information sought must be of demonstrable importance to the applicant. The Commissioner submits that use of the term "demonstrable" requires an applicant to provide sufficient cogent material to make evident the importance of the information to the applicant… 54. In my view, while recognising the difficulties of applicants in identifying relevant material, it is necessary for an applicant to put forward some material to indicate the importance of the information sought rather than engaging in mere speculation or conjecture.
5. The Respondent argued that the decision dated 10 December 2020 dealt with the general public interest considerations and the potential for the information to assist the Applicant to exercise any rights under any Act or law. After properly weighing these factors, it concluded that the factors in favour of refusing to deal further with the application significantly outweighed those in favour of continuing to deal with it. The internal review decision also properly weighed the matters that were presented to it.
6. The Respondent addressed the Cianfrano factors as follows: 1. The "terms of the request": This is not relevant to either decision and it is a neutral factor in assessing whether there is an unreasonable diversion of resources. 2. "The demonstrable importance of the document or documents to the Applicant": This was considered by each decision-maker, but there was no evidence from the Applicant regarding this issue. The reserved its rights to address it when the Applicant had filed her evidence and submissions. 3. "Whether the request is a reasonably manageable one having regard to the size of the department and the extent of resources usually available for dealing with such applications": The Respondent argued that using time to process this application necessarily means that the time cannot be used to process other access applications, to the detriment of other applicants. This factor weighs in favour of a finding that responding to the application involves an unreasonable diversion of resources. 4. "The agency's estimate as to the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost": The Respondent argued that its time estimate and its estimated volume of documents weighed heavily in favour of a finding that this would involve an unreasonable diversion of resources. 5. "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": The Respondent argued that the time estimates are based upon its Divisions' experience of gathering information for a large volume of GIPA applications and considered that the information is not centrally held and will require significant resources to be dedicated to searches at WCC. While the Applicant's solicitors twice-amended the scope of the application, much of the original application remains and it will require an excessive amount of labour to respond to it. This weighs in favour of a finding of an unreasonable diversion of resources. 6. "The timelines binding on the agency": The Respondent argued that the 20 business-day time limit under s 57 of the GIPA Act is a factor that weighs in favour of a finding that there would be an unreasonable diversion of resources as it would not be possible to comply within the maximum-permitted time. 7. "Any indication found in the annual report suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range": The Respondent argued that there is no notation in its annual report and this is a neutral consideration. 8. "The degree of certainty that can be attached to the estimate that is made as to documents affected and whether there is a real possibility that the time estimated may be exceeded": The Respondent argued to the effect that it may have under-estimated the time required to comply with the application and that this weighs in favour of a finding of an unreasonable diversion of resources. 9. "The extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind": The Respondent argued that it has dealt with previous applications made by the Applicant and a number of her associates with respect to personal information and has spent a considerable amount of time dealing with them. While the second-amended application seeks more general information it is in relation to WCC.
7. As to the Applicant's request for the Tribunal to consider that there are 11 parents, 1 former student and 21 current students making the application and that the time estimate equates to "a very reasonable 45 hours per each of the 11 adult applicants", the Respondent asserted that this is contrary to s 60(3) of the GIPA Act, which entitles it to treat this as a single application.
8. Accordingly, the Respondent concluded that the correct and preferable decision is for the Tribunal to affirm both the decisions.

Applicant's submissions

1. The Applicant's written submissions dated 16 July 2021 are summarised below: 1. The Tribunal must determine whether in refusing to deal with parts of the application under s 60(1)(a) of the GIPA Act, the Respondent properly undertook the balancing exercise required under s 60(3B). She argued that the Respondent did not properly undertake the balancing act and that it failed to properly consider the general public interest in favour of disclosure of government information (required under s 60(3B)(a)) and the demonstrable importance of the information to her, including whether it could assist her in exercising any rights under any Act or law (required under s 60(3B)(b)(ii)). 2. In relation to the regime under ss 60(3A) and 60(3B) of the GIPA Act, the Applicant referred to the decision in Ruyters. She noted that although Cianfrano referred to the suggestion that there was a "view of government administrators… that a processing time that goes well beyond 40 hours may properly raise concerns…", later cases emphasised that there is no 40-hour rule and that each matter must be considered on its own facts: Loussikian v University of Sydney [2018] NSWCATAD 140 (Loussikian) at [51] ; Zonnevylle at [78]. 3. The balancing test requires that an agency can only refuse to deal with an application under s 60(1)(a) if the considerations in s 60(3A) outweigh those in s 60(3B): Ruyters at [24]; Dezfouli v Justice Health and Forensic Mental Health Network [2021] NSWCATAD 189 at [18]. 4. The express reference to "the agency's size and resources" included in s 60(3A) makes it clear that whether the agency is large and well-resourced will generally be relevant in determining matters under s 60(1)(a): Ruyters at [33]. 5. The reference to "general public interest in favour of the disclosure of government information" refers to the inherent public interest in the disclosure of government information recognised in s 12(1) of the GIPA Act: Ruyters at [47]. 6. While it was necessary for an application to "forward some material to indicate the important (sic) of the information sought" in order to show that it was of demonstrable importance to the applicant, this requirement should also recognise the "difficulties of applicants in identifying the relevant material": Ruyters at [54].
2. The Applicant argued that the Respondent failed to give proper weight to the substantial considerations under s 60(3B), which are set out in the evidence of the Applicant and Ms Cregan. While it purported to consider the mandatory factors under s 60(3B) in making both decisions, it dealt with these factors in a cursory manner and it did not grapple with their force. Further, in the decision dated 10 December 2020, the Respondent asserted that there "…are other options available to your clients outside GIPA to obtain information held by the department, which reduces the weight." However, this is a bare assertion as the Respondent did not identify these "other options" and/or assess whether or not they were realistically accessible to the Applicant and the same approach was adopted in the internal review decision.
3. The evidence indicates that there are no other viable alternatives available to the Applicant because the parents and carers have had difficulty obtaining any information from WCC and the School has not responded to any correspondence from the Applicant's solicitors. Therefore, the only other available option involves commencing litigation and seeking production through legal proceedings, but there are a number of barriers to pursuing litigation, including costs and exposure to adverse costs orders. In any event, the information is required to ascertain whether there is a viable cause of action and it would enable better and more informed advocacy on behalf of the students of WCC. The Applicant stated, relevantly: 1. Categories (c) and (d) of the application seek information about the staff of WCC including the rate of staff turnover, their professional training and experience levels. 2. Category (u) seeks information about staff-to-student ratios and category (s) seeks information about the Learning Support Team. This information is sought because the Applicant has concerns about the high turnover of teaching staff at WCC and whether or they have the necessary qualifications, training and experience to support the students noting the large Aboriginal cohort and proportion of students with learning disabilities. The Learning Support Team is meant to work with parents and students to support students' learning attainment, but there are concerns about its role as the parents and carers are not seeing any improvement in literacy and numeracy attainment. 3. Category (i) seeks information about how WCC uses alternative education programs, which are offered to students instead of the HSC, and this is sought because the parents and carers have concerns that the School is diverting students into alternative education programs in inappropriate circumstances. 4. Category (t) seeks information about the funding received by WCC and how it is utilised. This directly relates concerns that WCC is not allocating funding to address the students' particular needs. 5. Categories (h), (j), (o) and (r) all seek various surveys about WCC, reports about it and evaluations and information provided by it (or in relation to it) regarding evaluations of its performance. This information relates to WCC's performance, evaluated both internally and externally, and are sought to ascertain whether it has identified areas of concern and has strategies to deal with them. 6. Category (k) seeks information exchanged between WCC and the NSW Ombudsman regarding complaints made in relation to the School. Category (v) similarly seeks correspondence between WCC and various external persons who have an oversight function (such as the Minister, Secretary and Deputy Secretary of the Respondent and the Director of Public Schools). This information is sought because it addresses concerns raised with WCC by the NSW Ombudsman, and information provided by the School that would at the least identify issues facing it, particularly regarding its use of suspensions as a disciplinary measure, any steps taken to address those issues and their success. 7. Category (l) seeks a copy of the COAG Agreement entered into in November 2013 with respect to improving Aboriginal school attendance and the various documents that would have been prepared in order to implement that agreement. This is sought because the initiative has been in place for almost a decade and there is a concern that it has not had any noticeable effect in improving outcomes at WCC. It is required in order to understand how the initiative was designed, implemented and evaluated and why it has apparently not worked. 8. Categories (p) and (q) seek information about two aspects of WCC's disciplinary strategies, the first being the merit policy to identify and encourage "good" behaviour and the second being its approach to managing "problematic" behaviour. This information is sought in order to better inform the parents and carers and enable them to advocate for more appropriate behavioural management, and to consider whether WCC has acted inappropriately or unlawfully dealing with disciplinary issues.
4. The Applicant argued that the significant time estimate provided by the Respondent is not a basis for refusing to deal with the application when the factors under ss 60(3A) and (3B) of the GIPA Act are properly weighed.
5. While the decision dated 10 December 2020 referred to a "40-hour benchmark", there is no such benchmark and the assertion is particularly inept given the Respondent's substantial resources and the significant public interest and demonstrable importance of the information sought to the Applicant.
6. Both the decision dated 10 December 2020 and the internal review decision emphasised that the requested information is not "held centrally" and the Respondent asserted that it would be necessary to conduct searches of "historical records stored on site at the schools, or in archived records, in legacy systems on site… or in individual staff records". However, there is no evidence that supports this assertion.
7. In any event, the Respondent's time estimates to have varied dramatically. For example, WCC initially estimated 140 hours' work to respond to category (r), but in November 2020, this was reduced to 39 hours as WCC decided that the information was more easily accessible. In any event, the Tribunal should not give weight to WCC's asserted record-keeping problems as a basis for refusing to deal with the application because the access application resulted from it its inability to respond to repeated requests for information.
8. The Respondent's size and resources are such that responding to the application would not be an unreasonable drain on its resources and the Tribunal should reject an argument that it should consider the specific resources of the RAU and its current workload and uphold the decisions, as that approach is not sound in law or in fact following the introduction of s 60(3A)(b) and the decision in Ruyters.
9. Rather, the Tribunal can consider that the Respondent is a large agency and that it has a significant budget, even if it chooses to allocate only a small part of its resources to process GIPA applications. It is also apparent from Ms Prendergast's evidence that while the RAU processes GIPA applications, it obtains time estimates from different divisions of the Respondent and that as each division extracts and provides information to the RAU, the asserted limited resources of the RAU have little bearing on the issue to be determined.
10. In any event, the Respondent has not filed any evidence about how each division would respond to the application and/or who would have the responsibility of responding and what other tasks they would be diverted from by so responding. Accordingly, there is no evidence to enable the Tribunal to determine the reasonableness, or otherwise, of the asserted diversion of resources.
11. While the decision dated 10 December 2020 refers to the "impact on public resources and students", there is no evidence regarding that impact or any reason for the Tribunal to rationally find that the resources required to interrogate data and records held the Respondent's Human Resources division, its Centre for Education Statistics and Evaluation and its Ministerial and Executive Services, would be diverted from dealing with the education and welfare of students.
12. The Applicant conceded that based on the Respondent's time estimates, the time allowed by s 57 would be exceeded, but this factor is not determinative. She also argued that the Tribunal should not give this factor much weight because the Respondent has not filed any evidence to substantiate or explain how its time estimates were calculated and there is evidence that supports treating the estimates with caution. For example, the Respondent initially estimated 4 hours' work to respond to categories (a) and (b), but this was reduced to 30 minutes after the Applicant's solicitors pressed them and by the time the information was produced, the time estimate was further reduced to 15 minutes. Further, category (t) was initially estimated as requiring 54 hours' work, but after the second amended application was made, this was reduced to 14 hours. This suggests that the time estimates are not always sound or can be significantly reduced on closer consideration.
13. The Tribunal should also consider that the application seeks information on behalf of the Applicant and 21 other people and that there are significant public interest considerations in favour of disclosure. The Respondent requested that a single application be lodged and the application should not fail because the Applicant complied with that request.
14. Accordingly, the correct and preferable decision is for the Tribunal to set aside the decision dated 10 December 2020 and the internal review decision and grant the Applicant access to the information sought.

Respondent's submissions in reply

1. The Respondent filed written submissions in Reply dated 30 July 2021, which I have summarised as follows. 1. It argued that it gave proper weight to the s 60(3B) factors and while the Applicant appeared to suggest that it is bound to provide detailed advice about the kind of rights that might be asserted or the ways in which information could be obtained, it has no such obligation. Its only obligation is to consider the factors and it decided that they these outweighed. 2. Regarding its size and resources, the decision in Ruyters has not overturned the position established in earlier cases such as Loussikian and Hanna v Ministry of Health [2019] NSWCATAD 21 (Hanna) about whether it is a matter for an agency to determine what resources it makes available to process GIPA applications. Also, in Ruyters, all of the resources dedicated by the agency to processing GIPA applications were within a specialised unit that was established to deal with information requests. It stated that it devotes considerable resources to dealing with the many access requests that it receives and while it is large, its resources are not unlimited, and dealing with the current application would consume a substantial portion of its resources. It is not obliged to dedicate all or a significant portion of its resources to dealing with applications as this would divert resources away from its primary function. 3. The Tribunal should reject the Applicant's proposed construction of s 60(3A)(b) and Ruyters, as this would leave s 60(1)(a) with no work to do in respect of any large agency that deals with GIPA applications. In any event, both of the decisions under review specifically considered its resources and conceded that they are considerable. 4. It has provided the Applicant with greater detail to justify its time estimates and the Applicant has not challenged that it has spent: (a) over 100 hundred hours' work in dealing with the application; and (b) 40 hours' work in extracting and providing information to her. Any time in excess of that already spent would be an unreasonable diversion of resources.
2. Accordingly, the Tribunal should affirm the Respondent's decisions.

Oral submissions

1. In oral submissions, Mr Lloyd argued that the Principal and Executive of WCC would have to conduct searches for the requested information, which would divert them from their primary task of educating students.
2. However, Ms Zheng maintained that there is no evidence before the Tribunal to support that argument and she also maintained that the Tribunal should be sceptical concerning the Respondent's time estimates. She also argued that this matter can be distinguished from Ruyters, because in that matter the Respondent had to listen to 624 hours of audio tapes and assess whether they responded to the request for information and then decide whether to release the information. There was no dispute concerning the number of hours' work required to process the application and the Tribunal ultimately decided that the time estimate was one of the factors in favour of a decision that the application should not be granted, but said that this factor is not determinative. In this matter, there is no direct evidence from the Respondent that supports its time estimates, except perhaps the evidence of Mr Rigney which relates to category (c) only. However, Mr Rigney did not state what other tasks he would have performed if he did not have to respond to the application and the relative importance of the competing tasks need to be considered.
3. Therefore, the Tribunal should draw an inference regrading Mr Rigney's evidence in accordance with the decision in Commercial Union Assurance Co (Australia) Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 per Handley JA and it should not infer that the resources required for the Respondent to respond to the application are unreasonable.
4. Further, in Ruyters the Tribunal found the applicant had not demonstrated the importance of the requested information and found that the s 60(3B) factors could not outweigh the factors in s 60(3A). In this matter, there is evidence regarding the importance of the requested information to the Applicant and no persuasive evidence that supports a finding that responding to the access application would require an unreasonable diversion of the Respondent's resources.

Information Commissioner's submissions

1. The Information Commissioner relied upon written submissions dated 3 August 2021, which I have summarised as follows.

Section 60 (1) (a) - dealing with the application would require an unreasonable and substantial diversion of the agency's resources

1. The discretion in s 60(1)(a) to refuse to deal with an application is based on an assessment of the resources that would be needed to deal with the application and relates to the resources that are available to the agency and that are solely within the control of the agency: see Hanna v NSW Ministry of Health [2019] NSWCATAD 21 at [16].
2. In Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286 (at [15]) the Tribunal explained this discretion as follows: The GIPA Act also provides a number of provisions which allow an agency to refuse to provide access, not on the basis of the content of the information, but on general administrative provisions. These types of matter relate in part to whether documents can be readily located and identified as being held by an agency. The statutory language refers to whether an agency has 'conducted reasonable searches for the information'. In addition, the provisions also refer to a ground for refusing access (by refusing to deal with the matter) on the basis that to provide access 'would require an unreasonable and substantial diversion of the agency's resources.' (s 60(1) (a)).
3. The Tribunal in Colefax highlighted the statutory right of access to information given by the GIPA Act in consideration of the discretion to refuse to deal with an access application. The Tribunal (at [26]-[27]) held that the GIPA Act requires that discretions under it must be exercised so as to enhance its objects (s 3(2)(b)). The Cianfrano factors continue to be relevant to a consideration of whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources: see Ruyters (at [18]).
4. In Zonnevylle (at [74]), the Tribunal found that exercising the s 60(1)(a) discretion requires consideration of the concept of proportionality in balancing the applicant's right to access information with the agency's ability to procure it in a timely and cost-effective manner. The Tribunal (at [81]) held that what will be an excessive or unreasonable amount of processing time will depend on the circumstances of each case and is a matter for the decision-maker or the Tribunal to determine with reference to the objects of the GIPA Act. In Zonnevylle, the Tribunal considered an access application that would have required the agency to restore information from archived backups on disused technology was unreasonable.
5. In Cianfrano (at [62]) the Tribunal held that 40 hours "lay at the upper end of the range", but it has since found in various decisions that there is no 40-hour threshold or 'rule' for the purposes of s 60(1)(a).

Sections 60 (3A) & (3B) - Considerations that may be taken into account in deciding whether dealing with an application would require an unreasonable and substantial diversion of the agency's resources

1. Sections 60(3A) and 60(3B) codify a number factors identified in Cianfrano and Colefax under the statutory discretion in s 60(1)(a), which are also relevant to assessing whether an application would involve an unreasonable and substantial diversion of resources. In Ruyters (at [47]), the Tribunal held that the "general public interest in favour of the disclosure of government information" in s 60(3B) refers to the inherent public interest in the disclosure of government information rather than the public interest considerations in favour of disclosure of the particular information sought. Accordingly, the fact that the Applicant seeks government information in which there is an inherent public interest relevant.
2. Further, s 60(3B) also requires the Tribunal to consider the demonstrable importance of the information to the Applicant, including whether the information is personal information that relates to the Applicant, or could assist the Applicant in exercising any rights under any Act or law. The information sought of 'demonstrable importance' to the Applicant if it could assist her in exercising rights under an Act or law if it reveals that WCC breached its duty of care to students. In Ruyters (at [54]), the Tribunal held that it is necessary for an applicant to lodge evidence to indicate the importance of the requested information rather than engaging in mere speculation or conjecture.
3. The Information Commissioner considers that the information may assist the Applicant in engaging with WCC about the solutions needed to support students and it may also reveal that it has breached its duty of care to students and assist the Applicant in exercising rights under an Act or law, such as assisting her to commence a class action against WCC.
4. In relation to the decision period under s 57, the Information Commissioner stated that the Respondent could have extended (and further extended) the decision period by agreement with the Applicant under s 57(4) and there does not appear to be a limit on how long the decision period can be extended for. However, any extensions under s 57 must be in line with the object of the GIPA Act in s 3(2)(b) - to "facilitate and encourage, promptly and at the lowest reasonable cost, access to government information". Despite the extensions available under s 57(4), under s 60(2) the Respondent was not required to consider any extension by agreement in deciding whether dealing with the application would require an unreasonable and substantial diversion of its resources.

The agency's size and resources

1. The express reference to an "agency's size and resources" in s 60(3A) indicates that whether the agency in question is large and well-resourced will generally be relevant considerations for the Tribunal. The Tribunal's comments in cases such as Loussikian (at [50]) and Hanna (at [41]) must be interpreted in this statutory context and the Information Commissioner would caution against a broad application of the finding that it is a matter for the Respondent to determine what resources it makes available to process GIPA access applications.

Section 60(3) of the GIPA Act

1. In Colefax (at [25]), the Tribunal held that the number of previous applications submitted by an applicant, or the resources previously allocated to them, are not relevant to whether dealing with an application would require an unreasonable and substantial diversion of resources, although the existence of previous applications relating to substantially the same information is relevant. However, the fact that the related previous applications have been determined does not preclude their consideration under s 60(3) (at [37]). Whether 2 or more access applications are "related" is "a question of degree, with the assessment to be made in the light of the circumstances of each case, having regard to the purpose of section 60(1)(a) and (3)", namely, "to prevent a drain on department resources created by voluminous requests, and to prevent the splitting of access applications into two or more, whether at the same time or not, in an attempt to avoid them being categorised as voluminous requests" (at [40]). A "wide and broad-brush approach" should not be taken when determining whether applications are related as this has the potential to frustrate the objects of the GIPA Act (at [42]). Further, the Tribunal held (at [43]-[44]) that applications were not 'related' merely because they could be characterised as relating to the one subject-matter. However, applications that sought information relating to the same subject matter in a specified period directed to different offices within the agency were related (at [45]).
2. The Information Commissioner argued that the Tribunal's comments in Colefax (at [42]-[44]) are particularly relevant to this matter, in which the Applicant is a parent seeking information about their children's experience at WCC. The type of information sought by the original 22 applicants may have varying degrees of personal value to each applicant, who may share a common objective. In these circumstances, while s 60(3) may be construed so as to allow the Respondent to consider 2 or more applications as one, the provision does not operate to require the Applicant to lodge a single application. Rather, it refers to the agency's entitlement to consider those applications as one and in doing so the agency is required to undertake the balancing exercise set out under ss 60(3A) and 60(3B).
3. In Zonnevylle (at [24]-[27]), the Tribunal found that s 60(3) applied because the material before the Tribunal clearly demonstrated that the applicants were, in some degree, acting in concert and had similar, if not identical, interests in receiving the information. The applicant represented that he had standing to seek review of the decision in another matter although he was not the person who had applied for a review in that matter. He also admitted that the applications were inter-connected and there was an overlap between what was requested in the 2 applications.

Section 60(4) of the GIPA Act

1. Section 60(4) of the GIPA Act requires that 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. In Taylor (at [31]) the Tribunal held that "compliance with s 60 (4) of the GIPA Act must be demonstrable prior to a decision being made under s 60(1) of the GIPA Act" and that the onus is on the Respondent to prove its compliance.
2. Further, in Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 (at [102]) and Hanna (at [9]), the Tribunal stated that the power of an agency to refuse to deal with an access application should be used only as a last resort after "making every attempt to assist an applicant to narrow their request". Section 16(1) provides that an agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available. Section 16(2) requires an agency to provide specific advice and assistance including advice as to whether or not the information is publicly available from the agency and how it can be accessed. Section 16(3) qualifies the extent of the advice and assistance obligation on agencies to that which is reasonable to expect the agency to provide. Therefore, an agency's obligation to assist an applicant is limited to what is "reasonable".
3. In undertaking the administrative review, the Tribunal must be satisfied that the Respondent sufficiently assisted the Applicant to narrow the scope of the application. The Information Commissioner noted the correspondence between the Respondent and the Applicant's solicitors between June and October 2020 regarding the scope of the access application and stated: 75. Where an access application seeks information that falls within the definition of "open access information" under section 18 of the GIPA Act, such as policy documents which require an exercise of functions by the agency "that affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, liable or subject" the agency should pro-actively disclose the information as open access information: section 23.

Section 60(1)(a)

1. The Respondent's primary contention is that dealing with the remainder of the application would require an unreasonable and substantial diversion of its resources. It argues that dealing with the request would be onerous given the volume of records, the time involved and the fact that while it is a large agency, its resources are not unlimited.

Time to process the remainder of the application

1. The Respondent's evidence is to the effect that the requested information comprises paper and electronic records, including legacy records, which are not centrally located and that more than 5000 pages of paper records may be produced. It also estimates that between 431.5 and 594 hours' work, or possibly more, would be required to process the remainder of the application and Mr Rigney estimated between 125.5 and 195 hours' work will be required to comply with category (v) alone.
2. However, the Applicant argues that the Respondent's evidence is not reliable and has provided examples of where those time estimates were significantly reduced following further consideration by the Respondent.
3. With the exception of Mr Rigney's evidence, which is restricted to category (v), the Respondent has not filed any evidence about its other divisions calculated their time estimates which were provided to Ms Prendergast. The Applicant argues that the Tribunal should regard the time estimates with scepticism and I consider that this argument has some force given the examples provided by the Applicant which are set out in her written submissions.
4. The Respondent asserted that dealing with the application would require a significant amount of searching by the Principal and Executive of WCC, which would divert them from their primary role of educating students. However, the Applicant argues that there is no evidence before me that supports this assertion. I accept the Applicant's argument and I am satisfied that this is a bare assertion and that it should be afforded little weight.
5. The Applicant argued that the GIPA application was necessitated due to WCC's inability to respond to the repeated requests for information made on behalf of all of the applicants and that the Tribunal should not give much weight to WCC's asserted record-keeping issues as a reason for making a finding under section 60(1).
6. In my view, the Applicant's argument has merit and I have decided to give it considerable weight in the circumstances of this matter.
7. The Applicant does not dispute the Respondent's estimate that more than 5,000 pages of records are likely to be produced in response to the application, but she argues that this factor does not outweigh the factors under s 60(3B) of the GIPA Act. I have decided these factors should be given moderate weight.

The agency's size and resources

1. In cases such as Loussikian (at [50]) and Hanna (at [41]), the Tribunal found that it is a matter for an agency to determine what resources it makes available to process applications and whether or not it is large and well-endowed is not relevant in determining whether dealing with an application would unreasonably and substantially divert its resources. However, the express reference to "the agency's size and resources" in s 60(3A) now makes it clear that whether the agency in question is large and well-resourced will generally be relevant to the Tribunal's determination regarding matters under s 60(1)(a) of the GIPA Act.
2. Based upon the evidence before me I am satisfied that the Respondent is a large agency and that it has substantial resources.
3. The Respondent states that it usually regards a maximum of 40 to 50 hours' work as being reasonable to allocate to an application and that the current application has already taken 100 hours' work. However, the Applicant argues that there is no "40-hour benchmark" that applies to GIPA applications and that the Tribunal should consider the significant public interest considerations in favour of disclosure of the information and the clearly demonstrable importance of the information to the Applicant. In any event, she argues that there is no evidence about: (a) how each division of the Respondent would respond to the relevant requests for information; (b) who, within those divisions, would have that responsibility; and (c) what other tasks they would be diverted from attending to. Evidence of this nature is required to enable the Tribunal to form a view regarding the reasonableness, or otherwise, of the diversion of resources needed to respond to the application.
4. In my view, the Applicant's arguments on this issue have merit and I have decided that they should be given considerable weight.

Section 57 of the GIPA Act

1. The Applicant concedes that based upon the Respondent's time estimates, the time to respond to the application would exceed that permitted in s 57. However, she argues that this factor is not determinative and that the Tribunal should not give this factor much weight given the evidence of its size and available resources and the lack of evidence supporting most time estimates.
2. In my view, the Applicant's argument has merit and I have decided that this factor should be given moderate weight in the circumstances of this matter.

Repeat Applicant

1. The Respondent argued to the effect that the fact that the Applicant has made a previous application is a matter that favours a finding that responding to the current application would require an unreasonable and substantial diversion of its resources. However, the Applicant disputes this argument and states that while she previously made an application, seeking both personal information and a generic request, the current application was separately lodged at the Respondent's request. Further, the other applicants are not her "associates" in the sense that there is any collusion or conspiracy between them. Rather, they are individuals who hold legitimate concerns about WCC and the objects of the GIPA Act entitle them to obtain the requested information.
2. In the circumstances of this matter, I have decided that this factor should be given moderate weight.

Section 60(3B) matters

1. Subsection 60(3B) of the GIPA Act requires consideration of the following matters: (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.

(a) General public interest in favour of disclosure

1. In Ruyters, Senior Member Ransome found that the term "general public interest" in s 60(3B) of the GIPA Act should be given the same meaning as in s 12(1), which is the inherent public interest in the disclosure of any government information. I agree and find accordingly.

(b) Demonstrable importance of information to the Applicant

1. Based upon the available evidence, I am satisfied that the requested information is of significant importance to the Applicant. There is evidence from the Applicant that she wants the information to enable her to understand what is happening at WCC and to explore whether the School has "done the right thing" or has acted in breach of its duty of care to its students and the community. It is also required to ascertain whether there are possible options for making a claim against the School in respect of any such breaches. I note that the Respondent did not challenge her evidence.
2. Based upon Ms Cregan's evidence, which was not challenged by the Respondent, I am satisfied that the Applicant's concerns and purpose are consistent with those of the other 21 applicants.
3. While the Respondent considered the s 60(3B) factors in both the decision dated 10 December 2020 and the internal review decision, I accept the Applicant's argument that it did so in a cursory manner only and that it did not properly grapple with their force. For example, I note that in the decision dated 10 December 2020, the Respondent asserted that there were options available outside GIPA to enable the Applicant to obtain information held by it and that this reduces the weight given to this factor.
4. However, as the Applicant correctly argues, the Respondent did not identify any other options that are available to her and/or whether such options are realistically accessible and/or viable. I accept the Applicant's argument that this statement is a bare assertion and I have decided that it should be afforded minimal weight.

Conclusions

1. Section 60(3B) provides that any consideration under s 60(3A) must, on balance, outweigh the general public interest in favour of the disclosure of government information and the demonstrable importance of the information to the Applicant. The general public interest in favour of disclosure of government information is relevant in this case, as it is in every case. Further, much of the requested information relates to the Applicant's children and in my view, this factor weighs heavily in the balance.
2. I find that the Respondent is a large agency and that it is well-resourced. While the categories of the second amended access application appear voluminous, I have previously found that with the exception of category (v), which is the subject of the internal review decision, there is no evidence before me that directly supports the Respondent's time estimates.
3. In my view, the Respondent's time estimates should be considered cautiously noting the numerous examples provided by the Applicant where estimates were significantly reduced by the Respondent after further consideration. While I accept that it may not be possible for the Respondent to process the application within the permitted s 57 timeframe, I am satisfied that this factor is not determinative.
4. Further, based on the available evidence, I am not satisfied that responding to the application will require the Principal and Executive of WCC to spend a significant amount of time searching for information and/or that this would divert them from their primary role of educating students.
5. Accordingly, I am not satisfied that the s 60(3B) factors are outweighed by the s 60(3A) factors and I am not satisfied on the balance of probabilities that dealing with the application would require an unreasonable and substantial diversion of the Respondent's resources.
6. It follows that I am satisfied that the correct and preferable decision is to set aside each of the decisions under review and to remit the matter to the Respondent for reconsideration under s 65 of the ADR Act. It will then be a matter for the Respondent to make a decision in relation to the application in accordance with the relevant principles set out in the GIPA Act, including possible consideration of the revised categories set out by the Applicant in Annexure "A" to her Outline of Submissions (to which it objected at the hearing).
7. During the hearing, I asked the Respondent to provide to the Applicant and the Tribunal an indication of the time it would require to reconsider the matter if the Tribunal rejected its arguments under s 60 of the GIPA Act. On 1 September 2021, the Respondent's solicitor provided the following advice by email: On the assumptions outlined below, the respondent estimates that it would take a minimum of approximately 8 weeks for Walgett Community College (WCC) to complete its searches (i.e. find, copy and collate) and send that information to the Right to Access Unit (RAU). During this period, other areas would also send their information to the RAU. The RAU will then need at least a further 4 weeks to process the information, review, sort and make the decision whilst liaising with relevant areas - totalling approximately 12 weeks for the respondent to finalise the access application and provide the requested information to the applicant. Assumptions 1. The above timeframes are based on the estimates provided from the relevant areas to RAU in the table attached to the letter from the Respondent to the applicant dated 10 November 2020: see CB305-322. 2. The calculations do not take into account that there is currently a lockdown affecting Greater Sydney and regional NSW, with most of the respondent's staff working remotely, and there only being a skeleton staff at WCC, which is presently closed due to the restrictions. The Respondent requests that any final orders that may be issued reserve the parties' rights to approach the Tribunal for a variation to the relevant date as may be necessary because of the prevailing circumstances.
8. I note that since the hearing date, the Public Health Orders that locked-down Greater Sydney and regional NSW have been revoked. In view of the findings that I have made regarding the Respondent's time estimates, I consider that its suggested period of 12 weeks to for responding to the application is excessive and I consider a period of 8 weeks as being reasonable.

Orders

1. I make the following orders: 1. The decisions under review are set aside. 2. The application is remitted to the Respondent under s 65 of the Administrative Decisions Review Act 1997 (NSW) for reconsideration. 3. Within 8 weeks of the date of these orders, the Respondent is to inform the Applicant of the outcome of the reconsideration. 4. Within 4 weeks after that date the Applicant is to advise the Respondent and the Tribunal whether she wishes to: 1. Continue with the review of the varied or new decision; or 2. Withdraw the application for review. 1. The matter is listed for directions or dismissal on 21 January 2022 at 9:30am. 2. I grant all parties leave to appear on 21 January 2022 by way of either AVL or telephone.

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: 22 October 2021