Ireland v Central Coast Council

NCAT Administrative and Equal Opportunity|2021-08-09

REASONS FOR DECISION

Bede Ireland has a beneficial interest in land at Springfield on the Central Coast. In these reasons for decision the land is referred to as "No. 70".
In 2002 Mr Ireland lodged a development application with the Gosford City Council, now the Central Coast Council (the Council), for a raised residential house to be built on No. 70. The development application was refused on the basis that the land is "high hazard" for flooding. Mr Ireland states that for 20 years he has sought details of the rationale for the making of this decision but has not been provided any.
There is a long history of correspondence between Mr Ireland and the Council about the classification of No. 70. There are also applications under the Government Information (Public Access) Act 2009 (the GIPA Act) and its predecessor the Freedom of Information Act 1989 as well as applications to the NSW Ombudsman. Mr Ireland is very firmly of the view that the Council is wrong in its assessment of flood levels within the lot boundary for No. 70. He seeks to understand the basis upon which the decision to refuse the development application was made.
This review application concerns an application made by Mr Ireland to the Council on 4 August 2020 in which he sought access to certain information under the GIPA Act. The Council decided on 2 September 2020 that access would not be provided to one document it had located in response to the application on the basis that Mr Ireland had been provided with access to that document under a previous GIPA request. Access was provided to two further documents, although access to these documents was not sought by Mr Ireland.
Mr Ireland sought external review of the Council's decision by the Information Commissioner. The issue in the review was whether other information the subject of the application is held by the Council. The Information Commissioner recommended that the Council make a new decision by way of internal review as it appeared further records or information responsive to the access application may have been held by it.

The GIPA request

The information sought by Mr Ireland in his GIPA application of 4 August 2020 is: 1. A hard copy of the following document is required. A copy of the Engineer's plan, that was claimed by he [sic] Engineer to have been sent to the owner of No. 70, about 11 November 2019. According to the Engineer's advice, two points, labelled 1 and 2, were selected and circled on his plan for clear location on the ground. The Engineer's decision that No. 70 is High Hazard relied heavily on his advice to the owner, that the Depths in metres of the 1% AEP flood at each point 1 & 2 were 0.2 m and 2.1 m. [For High Hazard decision, refer Appendix L of the 2005 Manual], The Engineer further advised the Owner of the flood areas selected for his High Hazard decision was also identified on his plan. The document 1 will include this vital detail. 2. A hard copy of the following document(s): A hard copy of the document(s), of the Engineer's calculations of the quoted Depths 0.2 and 2.1 m are required. As an assistance be advised that the decision referred to comply with the Manual requires (i) the calculation of the AHD height of the 1% AEP at the two points selected by the Engineer and (ii) a knowledge of the AHD level of the ground at the two points. Therefore to clearly understand the Engineer's decision-making process the Engineer's calculation document(s) are required. To further assist as to "what is required", refer please to the attached copy of my letter the CEO dated 28 July 2020.
The application therefore sought access to: 1. a plan on which two points were numbered and circled and which had been sent to the owner of No.70 on about 11 November 2019; and 2. any documents containing the calculations by which the flood depth at the two points labelled 1 and 2 on the plan were arrived at.
I note that during the course of these proceedings Mr Ireland has described the information sought in his GIPA request in various ways. He is, however, bound by the scope of his original request which has not been amended since the request was made on 4 August 2020.

Material before the Tribunal

The material before the Tribunal in these applications includes:

the application for review
a bundle of documents filed by Mr Ireland 21 July 2021, including a statement of Mr Ireland dated 16 July 2021
a bundle of documents filed by Mr Ireland on 5 October 2021
affidavit of Peter Sheath dated 11 June 2021
affidavit of Lani Curtis dated 15 June 2021
outline of submissions filed by the Council on 9 August 2021
submissions of the Information Commissioner filed 4 August 2021.

On 17 December 2021 the Tribunal received a bundle of documents from Mr Ireland. The documents were labelled "Confidential". The documents do not appear to have been provided to the Council or the Information Commissioner and I have not had regard to them in making my decision.

Issues to be determined

During the course of the proceedings before the Tribunal Mr Ireland has been provided with additional documents. At a conciliation conference on 12 April 2021 he was provided with what is described by the Council as a "depth map on which the depths of 0.2 m and 2.1 m had been circled and labelled as 1 and 2". On the same day Mr Ireland was provided with a Flood Information Certificate. An updated Flood Information Certificate was provided to him on 1 June 2021.
The parties agree that the only issue for determination is whether the Council's decision that it holds no further information responsive to Mr Ireland's request is the correct and preferable decision.

The relevant law

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done 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.
Sub-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. Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision that information is not held by an agency is a reviewable decision (s 80(e)).
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 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.
The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Council: s 105(1) of the GIPA Act.

General principles relating to whether further information is held

Mr Ireland asserts that the Council holds further information falling within the scope of his access request. The Council states that Mr Ireland has been provided with information by the Council and it holds no further information responsive to Mr Ireland's access request. The burden is on the Council to prove that the government information applied for is not held by it.
Mr Ireland makes a number of submissions in which he contests the accuracy of the information with which he has been provided in response to his request. He also criticises the Council for providing him with information he did not in fact seek. He also questions the professionalism of the Council. As was pointed out to Mr Ireland at the hearing, the Tribunal is not concerned with whether there are errors in the information provided in response to an access request or whether an agency's decisions, as revealed through that information, were reasonable: see Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 at [26]. In addition, the right to information given in s 9 of the GIPA Act is a right to access existing information, not a right to have questions about that information answered: Shvetsova v University of New England [2015] NSWCATAD 49 at [33].
In this matter, the issue that is raised by the applications is whether the Council holds further information responsive to the requests. Section 53 of the GIPA Act imposes an obligation on an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources".
As was stated by the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [43] whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether a decision that "information is not held" is the "correct and preferable decision". A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency.
In Wojciechowska at [44] the Appeal Panel summarised the Tribunal's task in reviewing a decision of an agency that it does not hold the information sought as follows: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s 63(3) of the ADR Act.

Item 1 - plan with two circled points

This part of Mr Ireland's request stems from two emails sent to Mr H Ireland from the Council in November 2019. Mr Ireland has provided a copy of the emails in his materials submitted to the Tribunal. The first, dated 6 November 2019, is from Robert Baker, Flooding & Draining Engineer and contains two images and text relating to the flood hazard classifications for No 70. It also contains links to other documents available from the Council's website. The second email of 27 November 2019 is a response by Mr Baker to various requests for further information sought by Mr H Ireland.
As explained by Lani Curtis in her affidavit dated 15 June 2021, when the Council made its decision on Mr Ireland's access application, a document responsive to the request in item 1 was not released as the officer dealing with the request erroneously believed that the document had been released to Mr Ireland in a previous access request. The Council states that Mr Ireland was provided with a document, described as a "depth plan", at a conciliation conference before the Tribunal which satisfies the terms of his request in item 1 set out above - that is, a plan that was sent to the owner of No. 70 on about 11 November 2019 with points labelled 1 and 2 circled.
Mr Ireland states that the documents he has been given do not include the document he is seeking. He states he did not request a depth plan. Mr Ireland points out that the 2019 email relating to the original plan described the flood data as red circles on a plan - "Depth (m) and Velocity (m/sec) of the 1% AEP Design Flood" whereas the plan he has been provided describes the location of "Depth and Height Level of the 1% AEP Design Flood" by red circles. He also notes that on the document he has been given the location of point 2 is not in fact on No. 70 but is located on the neighbouring property.
In her affidavit Ms Curtis sets out in detail the searches she performed of the Council's electronic record management system and other databases in order to locate information falling within the terms of Mr Ireland's request. Some of the information related to earlier access requests made by Mr Ireland. Ms Curtis states that on 14 August 2020 she received an email from H Ireland (who I understand is the owner of the land) advising that he had never received "a map or other document… any circled advice as to specific location of …depths".
Ms Curtis identified a document which she believed met the description in Mr Ireland's access request of 4 August 2020 and to which she believed he had been granted access in an earlier access application in March 2020. The document was not released in this matter as, as noted above, Ms Curtis believed it had previously been provided to Mr Ireland. Ms Curtis states that subsequent inquiries showed that the document (and other information) had not been released to Mr Ireland in the earlier GIPA application as it appears he had failed to pay the processing fee. At the hearing before me the Council's solicitor stated that the document to which access had been granted in the previous GIPA application is the document that was provided to Mr Ireland at the conciliation conference on 12 April 2021.
The Council's solicitor advised at the hearing that the depth map provided to Mr Ireland was in fact created by Council in response to the earlier GIPA application by Mr Ireland (which was in almost identical terms to the current request). Ms Curtis's evidence is that no other information meeting the terms of the current request in item 1 is held by the Council.
The evidence of Peter Sheath, Section Manager Flood Strategy & Planning at the Council is that the Council uses a flooding database called WaterRide which includes survey information. He states that a hard copy plan referred to by Mr Ireland in Item 1 is a printout of an image on a computer screen generated from the database. The image is a map that shows ground surface and flood surface and depths at particular points which are generated by clicking a mouse on various points on the screen. Mr Sheath states that the depth plan given to Mr Ireland at the conciliation conference was generated from the same database as was used by the Council officer, Robert Baker, in 2019 to create images in the email sent to Mr H Ireland on 6 November 2019.

Conclusions on item 1

An agency is required to carry out reasonable searches to locate information responsive to an access request. What constitutes a reasonable search will vary with the circumstances, however, key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is the subject of the request: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. That there may be some weaknesses in an agency's searches or failures in recordkeeping within the agency, does not necessarily lead to the conclusion that the search has not been reasonable: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49].
A cursory search which is unable to find the requested information is unlikely to satisfy the obligation imposed on an agency by s 53: Wojciechowska at [36].
In item 1 Mr Ireland is seeking access to a particular document as described in his access request. This document was purportedly supplied to Mr H Ireland in November 2019. Mr H Ireland has stated to Ms Curtis that he has never received such a document as described in the access request. It is therefore impossible to state with any certainty that such a document in fact now exists, although it may have existed at the time the original email was sent to Mr H Ireland, but, it seems, not received by him at the time.
Mr Ireland makes various criticisms of the Council's administrative processes and its ability to provide information that is requested. I note that under s 53 an agency is required to undertake "reasonable searches". Ms Curtis has set out in detail what searches she undertook of the Council's relevant records management systems and databases and consultations she held with relevant Council offices. In my view the searches undertaken and the search terms used to locate information responsive to the request in my view were reasonable.
It appears that the document which should have been attached to the email to Mr H Ireland in 2019 was in fact not provided at that time. As noted above, Mr H Ireland states he has never received such a document. It also appears that a copy of that document is not retained by Council. In circumstances where the document is a printout of an image which is generated at a point in time from a database by clicking a mouse on a screen, it is possible that the document was not retained by Council. Vagaries or errors in the Council's record keeping do not mean that reasonable searches have not been undertaken.
Mr Ireland has been provided with a document which, according to Mr Sheath, replicates the information he described in his request. It seems this document was in fact created in response to an earlier GIPA request. I note that Council is not required to create records in order to satisfy an access request (s 75 of the GIPA Act), but in this case has chosen to do so. The mere fact that the document which has now been provided to Mr Ireland contains a different descriptor to that which was set out in the email of 27 November 2019 to Mr H Ireland, does not mean that the information it contains is not the same.
In addition, that there may be errors in the information provided, for example that one of the circled points is in fact on an adjacent lot, does not mean that the information sought has not been provided. As noted above, the Tribunal is not concerned with whether there are errors in the information provided in response to an access request.
I am satisfied that Mr Ireland has been given access to information held by the Council falling within the terms of his request in item 1 and that no further information responsive to that aspect of his request is held by the Council. The Council's decision in relation to item 1 of Mr Ireland's request is therefore affirmed.

Item 2 - engineer's calculations

In item 2 Mr Ireland seeks the "Engineer's calculations" which underpin the flood depth at the two points labelled 1 and 2 on the depth plan - depths 0.2 and 2.1 m. The Council has submitted that it holds no information responsive to this aspect of Mr Ireland's request.
Mr Sheath has provided evidence that the flood depths to which Mr Ireland refers are generated by a computer flood model database. He states they are not calculated by Council flood engineers. Mr Sheath states that the database is a proprietary flooding database called WaterRide. As I understand it, it uses data from a flood model which was developed for the Council by a private engineering consultancy, WMA Water, in 2013. The model calculates flood depths by overlaying a flood surface map and a ground surface map which is based on a LiDAR aerial laser survey.
During the course of the Tribunal proceedings the Council gave Mr Ireland a Flood Information Certificate for No 70 on 12 April 2021. An updated Flood Information Certificate was provided to him by Mr Sheath on 1 June 2021. A person can obtain a Flood Information Certificate from the Council at any time for a fee. Both certificates were provided to Mr Ireland free of charge. The certificates contain information about the maximum flood levels within the boundary of No 70 - PMF (the largest flood that could conceivably occur), a 1 in 100 year event and a 1 in 20 year event. The information in the certificates is derived from the flood model database.
Mr Ireland notes he has never asked to be provided with the Flood Information Certificates and states he has not been provided with the information he sought which, in essence, is the calculations that underpin the flood depth levels. Based on the Council's submissions and evidence at the hearing, it seems that in dealing with Mr Ireland's GIPA request the Council has focussed on the request for "the Engineer's calculations" rather than the nature of the information sought. Because the depths were not "calculated" by a Council Engineer and there is no particular document that sets out those calculations, the Council decided it does not hold the information sought. The Council did not give any consideration to whether it in fact holds information about how the depths of 0.2 and 2.1 m were calculated.
As noted above, the GIPA Act gives people a legally enforceable right to access "government information". "Government information" is defined in s 4(1) of the GIPA Act as meaning "information contained in a record held by an agency". "Record" is defined in cl 10 of Sch 4 to the GIPA Act to mean: any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.
As the Information Commissioner points out in her submission, the statutory definition of "record" includes "electronic process" which may encompass more complex digital forms of information such as algorithms, software specifications and source code. No detail has been provided to the Tribunal about the flooding database other than that it is used to calculate flood depths and other matters such as velocity in various scenarios. Without any evidence about the data stored in the flooding database, it is not possible to conclude whether there is information that may be retrieved from the database and capable of being released. As was stated by the Tribunal in Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 at [74], the issue for an agency is whether the record is "capable of being produced or released to the applicant as information for the purpose of clause 10 of schedule 4 to the GIPA Act".
In that context it should be noted that an agency is not required "to create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency": GIPA Act, s 75(2)(c).
In this matter other issues arise about whether the information sought is information which is held by the Council. Clause 12 of Sch 4 sets out what government information is "government information held by an agency". Clause 12(1)(b) includes within the ambit of government information "information contained in a record held by a private sector entity to which the agency has an immediate right of access".
In her submissions the Information Commissioner notes that information about the depths 0.2 and 2.1 m on No 70 has been calculated by a proprietary flooding database developed by a private engineering consultancy. It is not clear whether ownership of the data set rests with the Council or the Council has an "immediate right of access" to the information under a contract with the developer of the database. There is also no information before the Tribunal which would allow a determination to be made whether there is a "government contract" within the meaning of s 121 of the GIPA Act and whether the calculation which appears to be undertaken by way of an algorithm is provided to the Council under the contract with a third party and thus is government information in relation to which an access application can be made to the Council.
In addition to these questions there is no evidence before the Tribunal which would establish whether the information sought is "government information" which is held by the agency when the application is received: s 53(1) of the GIPA Act. In the recent case of Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288 the Tribunal examined some of the issues which are relevant to this case. In that matter, while the database in question - the COPS database - held a large number of records, the information sought by the applicant could only be provided by the creation and application of a bespoke computer program. The Tribunal found that in those circumstances the information was not held by the agency when the application was received and was not, therefore "government information".
In this matter there are many unanswered questions about whether the Council holds information which is responsive to Mr Ireland's access request in item 2. In the circumstances, the appropriate course is to remit the application to the Council for reconsideration in relation to item 2.

Orders 1. The decision under review is affirmed in respect of item 1 of the access request of 4 August 2020. 2. The decision under review is set aside in respect of item 2 of the access request of 4 August 2020 and the matter remitted for reconsideration by the respondent in accordance with the reasons for this decision. 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: 15 November 2022

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (5)