The Applicant, Mr Jeray seeks information held by Blue Mountains City Council about an annual event held within the local government area of the Council.
The Council refused to deal with Mr Jeray's application for access on the basis that to do so would require an unreasonable and substantial diversion of the Council's resources, relying on s 60(1)(a) of the Government Information (Public Access) Act 2009 (GIPA Act).
The application for review was made by Mr Jeray on 31 January 2022.
[2]
Background
Mr Jeray sought access to the following information in an application for access made on 23 July 2020:
All records concerning the North Face 100/Ultra Trail event.
If there are many records please provide me with a list of records so that I may select the documents required.
In Jeray v Blue Mountains City Council [2021] NSWCATAD 67, the Tribunal ordered:
(1) The decision of the agency on the original application is affirmed.
(2) The matter is remitted to the respondent to consider and decide within 28 days of publication of these reasons whether to provide the applicant with the list of information prepared by it in response to the original application.
Then in Jeray v Blue Mountains City Council [2021] NSWCATAP 310 the Appeal Panel set aside that decision of the Tribunal and instead ordered:
(1) Orders 1 and 2 made by the Tribunal on 17 March 2021 are set aside.
(2) In substitution for those orders, pursuant to s 63(3)(d) of the Administrative Decisions Review Act 2013 (NSW) the following order is made:
The decision of the Blue Mountains City Council dated 29 July 2020 is set aside and Mr Jeray's amended application is remitted to the Blue Mountains City Council for reconsideration with the following direction:
The amended application is deemed to have been received by the Blue Mountains City Council on the date of these reasons.
Following remittal, the Council informed Mr Jeray by letter dated 26 October 2021 that:
1. the Council had calculated the minimum estimated processing time for the application on a preliminary assessment to be 640.97 hours;
2. the Council considered dealing with the application for access would result in an unreasonable and substantial diversion of the Council's resources; and
3. invited Mr Jeray to amend his application to narrow the scope of the application for access.
On 10 November 2021 Mr Jeray responded to the Council. His response did not include any narrowing of the scope of the information requested.
On 19 November 2021 the Council determined to refuse to deal with the application for access on the basis that to do so would be an unreasonable and substantial diversion of the Councils' resources.
Since that time the Tribunal published a further first instance decision, Jeray v Blue Mountains City Council [2022] NSWCATAD 343 on 27 October 2022 which was set aside by the Tribunal on 25 November 2022. The Appeal Panel has also considered a number of related matters: Jeray v Blue Mountains City Council [2023] NSWCATAP 120, Jeray v Blue Mountains City Council [2023] NSWCATAP 325, and Jeray v Blue Mountains City Council [2024] NSWCATAP 66.
The decision of the Tribunal in this review is an administrative review of the Council's 19 November 2021 decision to refuse to deal with Mr Jeray's 23 July 2020 application for access to information on the basis that to do so would be an unreasonable and substantial diversion of the Councils' resources.
[3]
Hearing on papers
On 17 September 2024, following an application by Mr Jeray, the Tribunal made an order vacating a hearing date scheduled for 26 September 2024 and an order that a hearing was dispensed with and the matter was to be determined by considering the written materials filed by the parties under s 50 of the Civil and Administrative Tribunal Act 2013 (the CAT Act).
I am also satisfied that the parties were given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and that the matter can be adequately determined in the absence of the parties.
Therefore, in this review a hearing is dispensed with under s 50(2) of the CAT Act.
[4]
Material before the Tribunal
The 31 January 2022 application for administrative review attaching the 19 November 2021 notice of refusal and grounds of review was before the Tribunal. Mr Jeray also provided written submissions and a bundle of documents lodged with the Tribunal on 18 July 2024 to the Tribunal and the Council.
The Council provided an affidavit of Ms Hinder, an officer of the Council sworn 20 April 2022, an affidavit of Mr Doyle, an officer of the Council sworn 29 April 2022 to the Tribunal and Mr Jeray. The Council also provided written submissions lodged on 16 May 2022, a summary of legal argument lodged on 7 August 2022 and written submissions in reply lodged on 12 August 2024 to the Tribunal and Mr Jeray.
The Information Commissioner provided written submissions lodged with the Tribunal on 22 July 2022.
[5]
Applicant's case
Mr Jeray submits the correct and preferable decision is for the Council to deal with his application for access. The grounds of review as set out in the application for review include:
1. that it is not reasonable to expect an applicant to know what information an agency holds;
2. Mr Jeray was not given a reasonable opportunity to respond to the Council's letter of 26 October 2021;
3. The Council did not provide sufficient assistance to Mr Jeray;
4. Mr Jeray's request for a list of documents is reasonable and permitted by s 75 of the GIPA Act;
5. The Council's estimations of costs and time are unjustified; and
6. The balancing test of s 60 should result in s 60(3B) matters outweighing s 60(3A) matters.
[6]
Respondent's case
The Council submits its decision should be upheld because it is the correct and preferable decision. The Council submits Mr Jeray's request for information is "impossibly broad" and despite several invitations and opportunities, Mr Jeray has refused to consider narrowing the scope of his request.
The Council submits it has made reasonable searches, has carefully estimated the time and resources to answer Mr Jeray's request for information and has correctly concluded that dealing with the request would be an unreasonable and substantial diversion of the Councils' resources.
[7]
Jurisdiction
The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of reviewable decisions made by an agency. A decision to refuse to deal with an access application is a reviewable decision (s 80 of the GIPA Act).
[8]
Administrative Review
When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.
[9]
Legislative Framework
Section 3 of the GIPA Act sets out the object of the Act:
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by -
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament -
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The GIPA Act provides that there is a presumption in favour of the disclosure of government information and a person who makes an access application has a legally enforceable right to be provided with access to the information, unless there is an overriding public interest against disclosure: see ss 5 and 9 of the GIPA Act. There is a general public interest in favour of the disclosure of government information and public interest considerations in favour of disclosure are not limited in scope: s 12 of the GIPA Act. There is an overriding public interest against disclosure of government information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13 of the GIPA Act.
Section 60 of the GIPA Act sets out the circumstances in which an agency can refuse to deal with an application for access and relevant provides:
(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -
(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,
…
(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.
(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.
(5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal.
(6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
The matters which may be considered under s 60(3A) of the GIPA Act are non-exhaustive.
Section 75 provides for the creation of new records:
(1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information.
(2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following -
(a) make a new record of information held by the agency,
(b) update or verify information held by the agency,
(c) 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.
[10]
Procedural matters
Mr Jeray contends that following a previous decision of the Tribunal in these proceedings, Jeray v Blue Mountains City Council [2022] NSWCATAD 343 he cannot be given a fair hearing in this review.
The test for determining apprehended bias is whether "a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8]; 205 CLR 337 at p 345.
I am not satisfied there is any basis on which an independent observer might reasonably apprehend the Tribunal would be biased in this review following the making and setting aside of a decision by another member and I therefore reject Mr Jeray's submissions as to bias of the Tribunal.
Mr Jeray also objected to the participation of the Information Commissioner, who provided submissions, and made allegations as to alleged bias of the Commissioner without any factual basis.
The Information Commissioner has a right to appear and be heard in this review under s 104(1) of the GIPA Act and cl 9(4)(a) of Schedule 3 to the CAT Act. Therefore the written submissions of the Information Commissioner is relevant material before the Tribunal in this review.
Mr Jeray also alleges bias on the part of the Tribunal because the Tribunal permits the Information Commissioner to participate in the proceedings. I am not satisfied there is any basis on which an independent observer might reasonably apprehend the Tribunal would be biased in this review because the Information Commissioner is exercising the Commissioner's statutory right to appear and be heard. I therefore reject Mr Jeray's further submissions as to bias of the Tribunal.
[11]
List or index request
I accept the evidence of the Council that providing a list or index document, as requested by Mr Jeray would take at least 43.7 hours and I also accept the Council's submission that creating a list is outside the scope of an application for documents "of this kind": see Walker v Northern Beaches Council [2021] NSWCATAD 251 at [107]-[118]. I am therefore satisfied that the correct and preferable decision is that no list be provided under s 75(1) of the GIPA Act and that the production of such a list is not required under s 75(2)(a) of the GIPA Act and is outside the scope of the decision under review.
[12]
Issue for determination
In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] the Tribunal considered the factors to be considered in making an assessment in a review of this type to be:
(a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in Re Borthwick at 35)
(b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick)
(c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications
(d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost
(e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application
(f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)
(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.
The Tribunal confirmed those matters are relevant to an assessment under s 60(1)(a) of the GIPA Act as well as a further matter being whether an applicant is seeking their personal information and noting the potential for the need to consider the s 3(2)(b) object of the GIPA Act to affect the balancing exercise: see Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130.
In this review the Tribunal is to identify and take into account any matters falling within the scope of s 60(3A) of the GIPA Act and then to determine if, on balance, those outweigh the matters within s 60(3B) of the GIPA Act. If the s 60(3A) matters outweigh those of s 60(3B), an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of that agency's resources: see Else v Ministry of Health [2021] NSWCATAD 381 at [54].
[13]
Opportunity to reduce scope
The Council offered Mr Jeray several opportunities to refine the scope of his application for access, including by suggesting categories or topic areas, and suggesting he reduce the relevant time period, which was 13 years.
On the material before the Tribunal, I am satisfied Mr Jeray has been given a reasonable opportunity to amend his application in compliance with s 60(4) of the GIPA Act.
[14]
Section 60(3A) matters
The unchallenged evidence of the Council is that:
1. initial searches revealed the request included at least 2,623 individual records comprising over 14,000 pages;
2. at least 75 third parties would need to be consulted; and
3. the Council estimated dealing with the application for access would take in excess of 640.97 hours and take at least 10.5 weeks using all the Council's available resources, which are 1.75 full time employees who processed 133 requests in 2021, solely for Mr Jeray's application.
This time period calculated is well in excess of the period specified in s 57 of the GIPA Act.
I am satisfied, on the material before the Tribunal, the searches conducted by the Council were reasonable and the time estimates calculated by the Council, supported by a sampling exercise, were carefully considered and are justified.
[15]
Section 60(3B) matters
The relevant s 60(3B) matters include the general public interest in favour of the disclosure of government information and the objects of the GIPA Act.
On the material before the Tribunal I am not satisfied Mr Jeray has demonstrated any basis to establish any importance of the information to him, nor that the information contains his personal information, or could assist him in exercising any rights under any Act or law.
[16]
Balancing
Considered together, the s 60(3A) matters carry significant weight and I am satisfied that the s 60(3A) matters identified above, including the volume of the information involved, the number of parties required to be consulted and the estimated time and resources needed to deal adequately with the application for access, outweigh the matters identified above as s 60(3B) matters.
I am therefore satisfied that dealing with the application for access would require an unreasonable and substantial diversion of the Council's resources.
It follows that the correct and preferable decision is to refuse to deal with the application for access and that the Council's decision to do so should be affirmed.
[17]
Order
1. The decision under review is affirmed.
2. An oral hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.
[18]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 November 2024