Larsen & Larsen v Department of Planning & Environment

Application for administrative review

1. On 16 February 2023, the applicants lodged an application for administrative review with the Tribunal and sought review of the internal review decision made by the respondent on the following grounds: GIPA 23-2616 sought copies of corro (including briefs) provided to the Office of Premier by Department of Planning & Environment (Dept) in relation to Katoomba Airfield & FlyBlue Management between 15/06/2022 & 28/10/2022. The decision determined no info was held. Having knowledge to the contrary we sought an internal review & referenced the knowledge. The internal review decision on 13/01/23 upheld the original decision. However, a concurrent GIPA to the Office of Premier provides contradictory inform demonstrating a briefing must have been provided by the Dept. We seek NCAT review of the original and review decisions.

Procedural matters

1. On 20 March 2023, The Tribunal conducted a case conference, at which the applicants appeared in person and Mr Sherrington, Crown Solicitors Office, appeared for the respondent. The Tribunal ordered the respondent to file and serve all evidence and material relied upon by 17 April 2023. He ordered the applicant's to file and serve all material relied upon including notice of any witnesses required for cross-examination at the hearing by 8 May 2023. He ordered the respondent to file and serve submissions in reply by 22 May 2023. He listed the matter for an in-person hearing on 31 May 2023.

The hearing

1. The matter came before me for hearing on 31 May 2023. The applicants appeared in person and Mr Sherrington, Crown Solicitor's Office, appeared for the respondent. There was no appearance by or on behalf of the Information & Privacy Commissioner.
2. With the consent of the parties, I ordered that the name of the respondent be amended to "Department of Planning & Environment".

The reviewable decision

1. The parties agreed that the reviewable decision is the respondent's internal review decision dated 13 January 2023.

Respondent's opening argument & evidence

1. Mr Sherrington confirmed that the respondent had filed a bundle of documents that set out all relevant documents and that it relied upon an affidavit of Jeremy Davis that was affirmed on 13 April 2023.
2. I note that this affidavit was admitted without objection and was marked Ex A. the deponent was required for cross-examination and he was in attendance.
3. Based on Mr Davis' evidence, the respondent argued that the correct and preferable decision is that no information within the scope of the GIPA request is held by the respondent and the decision dated 13 January 2023 should be affirmed.

Applicants' opening argument & evidence

1. The applicants filed submissions on 13 May 2023, but they did not file any evidence per se.
2. The applicants stated that in 2017, they submitted a Government tender to keep using Katoomba Airfield as an Airfield. About six years later they were told that the lease would not proceed because they did not provide a planning pack. They complained that there is false information within the public domain and they therefore wrote to the former Premier.
3. On 15 June 2022, the applicants said that they prepared a synopsis and that a friend (Les Taylor) personally gave this to the former Premier. However, their correspondence did not go through the usual channels.
4. The applicants annexed a letter from Mr Taylor dated 19 April 2023, which was addressed to the Tribunal, in which he stated: I have known the former Premier, Mr Dominic Perrottet for many years, having engaged his services whilst he was a solicitor at the law firm Henry Davis York through my capacity as General Counsel, Commonwealth Bank of Australia. On 15th June 2022 at a private NSW Liberal Party lunch, I personally hand a letter to the former Premier from Mr and Mrs Larsen outlining the matter of Katoomba Airfield, highlighting evidenced discrepancies between the legislated lease process and actions taken by the department (copy attached). The following week at a pre-budget function the former Premier informed me, in a sincere manner "I've got somebody looking into the matter". This confirmed to me that the Office of the Premier had direct oversight of the matter.
5. However, the applicants said that they did not hear anything and they contacted Federal Senator Hollie Hughes about their ongoing concerns. They stated that Senator Hughes approached the former Premier's Chief of Staff, Mr Bran Black, on their behalf. On 12 July 2022, Senator Hughes received confirmation from Mr Black that he has asked for a full briefing on his return from overseas.
6. On 1 September 2022, the applicant's received a letter from former Minister Kevin Anderson, advising that the point of contact for any enquiries is "DPE Legal: Somerset Hoy, Deputy General Counsel". This was confirmed on 20 October 2022, in a brief to former Minister Anderson by the respondent. On 13 April 2023, Somerset Hoy witnessed Mr Davis' Affidavit.
7. The applicants also stated that on 21 September 2022, in an email from Mr Rowsell, Director, Economic Policy, DPC to Mr Morrison, Officer of the Premier, Mr Rowsell stated: As legal questions have now been raised, it should continue to be referred to the relevant legal counsel for formal correspondence.
8. The applicants concluded: 38. In this Submission the Applicant has ensured the Tribunal is accurately briefed on the true history of the matter, with evidence. The "false narrative" referenced above is reflected in the "What happened?" section of Mr Rowsell's email. The misinformation is consistent with misrepresentations made by the respondent in correspondence and ministerial briefs… The same misinformation is included in Mr Rowsell's email… The Applicant considers it is not unreasonable to believe that the origins of the information (briefings) are from the same source, DPE Legal. 39. To highlight the misinformation and missing information in Mr Rowsell's email, the Applicant has filled in the gaps and corrected errors in the "What happened" section… In summary, the Applicant submits that the respondent did not conduct sufficient and reasonable searches, but limited its searches by not including the primary contact and DPE legal who has had complete oversight of the matter, including the overseeing of correspondence and communications.

Evidence of Mr Davis

1. In Ex 1, Jeremy Andrew Davis deposed that he is the Director of the Office of the Deputy Secretary, Crown Lands, within the respondent. He stated that he has been a public sector employee for over 20 years and has held his current role with the respondent since May 2020. Prior to that, he was Manager, Office of the Deputy Secretary, Corporate Services, Department of Communities and Justice; and Director, Office of the Secretary, Department of Family and Community services.
2. Mr Davis stated that he reports directly to Ms Melanie Hawyes, the Deputy Secretary of the Crown Lands Group within the respondent. He directly or indirectly supervises approximately 12 people and he is responsible for leading Crown Lands' central executive support and corporate functions, including Lands Stakeholder Relations, the business unit responsible for coordinating ministerial briefings and correspondence. He is also a member of the Crown Lands executive leadership team. Ms Hawyes reports director to the Secretary of the respondent, Mr Mich Casell.
3. Mr Davis stated that in 2022, the respondent was responsible to a number of ministers. The Hon. Anthony Roberts MP, Minister for Planning and Homes was the Lead Minister for the respondent cluster. The Hon. Kevin Anderson MP was Minister for Lands and Water and he was responsible for Crown Lands. The Ministers' offices were (and the current Ministers' offices) are separate from the respondent and they have separate records keeping systems.
4. Mr Davis stated that before he became aware of the GIPA request, he was generally familiar with the issues relating to Katoomba Airfield and that the applicant's operate a business called "FlyBlue" from Katoomba Airfield. The Airfield is on Crown Land. He stated that he was aware that the applicants were aggrieved by a decision not to permit them to retain occupation of the Airfield. That decision was made on the basis that they were unable to demonstrate that they had a viable planning pathway for the operation of an airfield on the site. He was aware that the applicants had communicated on a number of occasions with the former Premier and Ministers, as well as with Government Departments.
5. In relation to the briefing process, Mr Davis stated that if the Premier, the Premier's Office or the Premier's Chief of Staff had sought a briefing about a particular matter from the respondent, the process would have been as follows: 1. A request for a briefing would have been received by the respondent; 1. The most likely way in which a request would be received is from the relevant Minister's Office, which in turn would receive a request from the Premier's Office. 2. In the case of a matter relating to Crown Land, the relevant office is Minister Anderson's Office. It is also possible that a request for a briefing could come from the Department of Premier & Cabinet (DPC); 3. Finally, briefing requests sometimes come directly from the Premier's Chief of Staff. 1. In any of these cases, it is likely that any request relating to Crown Land would come directly either to Ms Hawyes or to me, since she is responsible for Crown Lands. 2. He would then allocate the request to the relevant business unit within Crown Lands to prepare a response to the request. 3. Once a briefing note had been prepared, it would be approved and progressed by a number of people within Crown Lands and the respondent before being provided to an external party such as the Premier's Office, the Minister's Office or DPC. 4. In the case of a briefing relating to Katoomba Airfield, it is likely that any briefing would have been approved by at least the Director, Operations East, Crown Lands (because Katoomba is in the Eastern Division of NSW for Crown Land purposes) and the Executive Director, Land and Asset Management, Crown Lands, before being provided to Ms Hawyes for her approval. Depending on the nature and the sensitivity of the matter, the briefing might also be approved by the Secretary before being provided to the requesting party. 5. Because of this process of requesting and making briefings for the Premier, he was confident that a briefing note could not have been provided without his knowledge except in the case referred to in the following paragraph. Further, he was confident that any written briefing note would have passed through his email account, except in the kind of case referred to in the following paragraph: In a rare case, it may be that a briefing is provided by Ms Hawyes personally, without my involvement, for example if the matter is highly confidential. I think it is unlikely that a briefing relating to Katoomba Airfield would have been provided in that way. In any case, such a briefing, if provided in written form, would have passed through Ms Hawyes' email account. 1. In addition to the briefing note itself, he would expect that preliminary documents would exist in his email account and/or the email account of Ms Hawyes. For example, he would expect to find the original request or the briefing note in draft form being provided to Ms Hawyes for her approval.
6. Mr Davis deposed that Content Manager (also known as CM9) is the respondent's formal record-keeping system. This includes a system for sending documents for approval. Each person in a line of management is able to indicate their approval electronically before forwarding the link in Content Manager to their line manager. The final approver also affixes their e-signature to the document to indicate their approval. Once every person required to approve the document has done so, the document remains in content manager as to record to document in its final form. While Content Manager should contain any briefing note that has been finalised and provided to an external party, it is always possible that this has not occurred. Because of that possibility, he was more confident in concluding that a document does not exist after searching his email account.
7. Mr Davis stated that the respondent also uses SharePoint and various network drives to share documents internally. The purpose of using network drives is that links to working documents can be shared for the purpose of collaborating on those working documents. Although a draft briefing note might well be stored in a network drive, it would be usual for a briefing note that had been finalised to be transferred into Content Manager for approval as outlined above. He would not expect a finalised briefing note that had been provided to the Premier to remain in a network drive.
8. On/around 9 November 2022, he received a request to conduct searches in relation to the GIPA request. He responded to that request by carrying out searches and completing a "GIPA Search and Certification Form", a copy of which he annexed and marked "A". This records that Ms Hawyes endorsed the searches that he carried out on 14 November 2022 and that he only searched "Email/Inbox", using the key words "Katoomba", "Airfield" and "Premier". Although Annexure A does not record this specifically, his searches included Ms Hawyes' email account as well as his own.
9. Mr Davis stated: 39. Because of my knowledge of the briefing process outlined above, when I received a request to make searches in response to the access application, I did not consider that it was necessary to carry out any searches beyond my email account and Ms Hawyes' email account. I formed the view, having searched those accounts, that there was no briefing that was responsive to the access application.
10. Mr Davis stated that he had conducted additional searches of Content Manager and the respondent's network drives, for the purposes of preparing his affidavit and he set out the additional key word search combinations that he used (10 in total). None of those additional searches turned up any documents and he remained of the view that no brief exists that is responsive to the GIPA request.

Mr Davis - oral evidence in chief

1. The applicants required Mr Davis to attend for the purposes of cross-examination and he was called and affirmed. He stated that the contents of his affidavit were true and correct.

Mr Davis - cross-examination

1. The applicants asked the witness what was meant by para 15 of his affidavit. He replied to the effect that a decision was made by reference to a brief that was produced by the Deputy Secretary.
2. The applicants referred the witness to para 39 of his affidavit , in which he deposed that because of his knowledge of the briefing process, he did not consider that it was necessary to carry out any searches beyond his own email account and Ms Hawyes' email account. The applicant's referred to an email that he sent to Louise Courtney dated 7 September 2022, found at page 13 of his affidavit, in which he stated: Liz Moore forwarded your email to me. Minister Anderson's office requested that DPE draft a response to the Larsens for the Minister's signature on behalf of all other Ministers who were emailed. The response was sent to the Larsens last Thursday and is attached for DPC's and the PO's information. Please note the contact officer in DPE Legal is Somerset Hoy, Deputy General Counsel, Property and Commercial - contact details in the letter. Please let me know if you or the PO require further advice.
3. The applicants noted that the email indicated that the point of contact was "DPE Legal" and that annexure "K" to their submissions, is a "Briefing note Minister for Planning and Public Spaces" dated 2 June 2021, which was conducted in Minister Stokes' office (and at which they were present). They put to the witness that this shows that the "point of contact" is DPE Legal. The witness replied that in relation to GIPA requests, all correspondence goes through his office.
4. The applicants also referred the witness to annexure "P" to their submissions, which is an email from Simon Rowell (DPC) to Tom Morrison dated 21 September 2021. This referred to level questions being raised and they put the witness that failing to conduct a search for documents held by DPE legal was "an oversight" on his part. The witness disagreed and he repeated that all briefings go via his department.
5. Further in relation to annexure "P", Mr Larsen put to the witness - "Would it not be appropriate to search "Legal"?" The witness disagreed, as the GIPA request referred to "Crown Lands" and the Crown Lands Group does not have access to the records held by DPE Legal. He said that he did not only search for formal briefing notes, but also for emails etc. He said that the relevant Deputy Secretary would have been fully briefed on anything that was provided to the Premier's Office and Mr Morrison was an officer within the Office of the Premier.
6. The applicants asked, "Is it possible that there was a briefing between Mr Morrison and DPC?" The witness replied, that it was possible that there was a briefing from Minister Anderson's office. However, his search terms (set out at para 41 of Ex A) all include "+ brief". He searched the Content Management System of the Crown Lands database using each of those combinations.
7. The witness also stated that in the normal course of events, all information provided to the Premier is sent from the Deputy Secretary to the Secretary and then to Minister Anderson and from the Minister's Office to the Office of the Premier.
8. A general discussion followed about what were "the usual channels", which did not greatly assist the Tribunal. Ultimately, the witness stated that he is employed by the respondent as a People Leader, process expert and that he is generally aware of the background to this GIPA request.
9. The applicants sought to cross-examine the witness on the basis that Ms Hoy witnessed his affidavit. However, the Tribunal disallowed that question on the basis that it was not relevant to the dispute before me.
10. The respondent did not seek to re-examine the witness and he was excused from further attendance.

Respondent's submissions

1. The respondent filed written submissions on 17 April 2023,. After setting out a background to this matter, the respondent particularly focussed on its internal review decision, which found that the requested information was "not held". In response to the grounds raised by the applicants on internal review, the respondent stated, relevantly: 15. …Given that no one in the relevant offices have any record of such a briefing, it seems unlikely that he was referring to any request for a formal written briefing. Instead, it is likely he meant this in the colloquial sense of speaking to someone to get the full story. 16. This explanation is plausible and there is nothing in the material before the Tribunal which suggests that it is not the correct explanation for why the Premier's Chief of Staff referred to a "full briefing", and yet no written briefing exists.
2. The respondent stated that s 53 of the GIPA Act requires an agency, inter alia, to "undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received". Until recently, the adequacy of a respondent's searches in response to a GIPA request was determined in accordance with the decision in Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 (Camilleri), which approved and applied the earlier Queensland decision of Shepherd v Department of Housing, Local Government and Planning (1994) 1 QAR 464 (Shepherd). As Judicial Member Isenberg stated in Camilleri at [10]-[11]: In deciding whether a sufficient search has been carried out, the ultimate issue for the Tribunal is whether the agency's conclusion, that it does not hold the documents sought by the applicant, is sound. What constitutes a sufficient search has been considered by the Tribunal in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the President said that the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning ( 1994) 1 QAR 464, should be adopted in addressing sufficiency of search issues. In Shepherd the Information Commissioner said at [19] that there were two questions for consideration were: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
3. However, in Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173 (Wojciechowska), the Appeal Panel concluded that the ling-applied test in Shepherd (as set out in Camilleri) was "plainly wrong". This was because the test in Shepherd required the Tribunal to first determine whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency, and, if it concludes that the answer to that question is "no", the antecedent question as to whether the agency has undertaken reasonable searches does not arise. The Appeal Panel considered this to be at odds with s 105 of the GIPA Act, which places the burden on the agency to prove that the correct decision is that the information is not held (at [39]).l
4. The Appeal Panel considered the nature of the issues on an application to review a decision that information is not held and it stated (at [40]-[42]): 40. In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal's power when reviewing an "information not held" decision, stating at [33]: The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. 41. I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". I do not understand the Appeal Panel in Klaric to suggest otherwise. 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.
5. Applying these principles, the Appeal Panel considered the correct approach to be as follows: 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: a. 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); b. determine whether the agency has proved any relevant factual issues on the balance of probabilities; c. 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; d. applying those findings, decide what the correct or preferable decision is; e. affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
6. The Tribunal has affirmed the decision in Wojciechowska in a number of subsequent matters, including Seremitis v Commissioner of Police [2020] NSWCATAD 317; Tisdale v Cumberland City Council [2021] NSWCATAD 132 and CLT v Secretary, Department of Education [2022] NSWCATAD 34. However, principles that were developed under Shepherd remain relevant to considering the factual questions that Wojciechowska requires the Tribunal to be asked and, particularly whether the obligation under s 53 of the GIPA Act has been complied with. Therefore: 1. 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, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. 2. A key question is whether further searches will locate other documents: Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80 at [51]; Mino v Legal Aid NSW [2015] NSWCATAD 245 at [30]; 3. While there may be an expectation or obligation that an agency holds the information requested, a failure to locate the information does not automatically mean that the agency has failed to comply with the requirements of s 53(2). Rather, it can also mean that the agency does not hold the information, which is a decision open to the agency to make under s 58(1)(b) of the GIPA Act: Fisher v Upper Lachlan Shire Council [2022] NSWCATAD 65;
7. The respondent stated that applying these principles, the key issue for determination is whether the information sought is held. However, the Tribunal may be satisfied that the answer to that question is "no" by having regard to the sufficiency of the searches conducted, which establish that it complied with s 53 of the GIPA Act, and the fact that those searches did not turn up the information that was sought. The Tribunal would also consider any material provided by the applicants in support of a different conclusion.
8. The respondent relied upon Mr Davis' evidence to demonstrate that its searches were sufficient. In particular, it argued that: 1. He was the appropriate person to conduct the searches because he is directly involved in each of the three pathways that he identified by which a brief could have been provided to the Premier, Office of the Premier or the Premier's Chief of Staff. His involvement is in his capacity as the Director of the Office of Ms Melanie Hawyes, the Deputy Secretary with ultimate responsibility for Crown Lands (subject to the overall supervision of the Secretary of the respondent) and as a leader of the business unit responsible for coordinating Ministerial briefings and correspondence - Lands Stakeholder Relations. Because of her overall responsibility for Crown Lands, Ms Hawyes must have been involved in any briefing that was produced; 2. He explained why, in a usual case, a brief being provided would necessarily pass through his email account. This explains why he only searched email accounts in answering the GIPA request. He did identify a rare case in which a brief would not pass through his email account, but said that this rare case is accounted for by searching both his email account and Ms Hawyes' email account; 3. He carried out additional searches of Content Manager - the respondent's formal record keeping system and other network drives in preparing his affidavit. He conducted these searches although he did not believe that they were required and they did not turn up any responsive documents; 4. He expressed his opinion, at the time of the original decision and as at the date of affirming his affidavit, that the requested brief does not exist. His evidence on this issue should be accepted; 5. Mr Davis' searches did turn up relevant document that were produced to the applicants even thought they were outside the scope of the GIPA request.
9. The respondent argued that two other pieces of evidence are broadly consistent with Mr Davis' affidavit, namely: 1. In the context of making enquiries for the internal review decision, the original decision maker stated that she conducted a search of all CM9 datasets and found nothing relevant to the scope of the GIPA request. Those searches were conducted in parallel to Mr Davis' own searches; and 2. DPC received a similar application and also did not have any responsive information. Based on Mr Davis' evidence, that is not necessarily because a briefing did not exist, since a briefing would not necessarily be provided via DPC. However, that DPC does not have a briefing is consistent with the respondent's finding to the same effect. In addition, on the applicants' case, there was also a "concurrent GIPA to the Office of the Premier", which also apparently did not turn up any briefing.
10. The respondent noted that the applicants relied upon two documents in support of an assertion that the requested information does exist, namely: 1. A text message sent by an unnamed third party apparently to one of the applicants, which reads: "Spoken to Bran. He's overseas until Monday but has asked for a full briefing when he gets back. I'll call him mid-next week to follow up". The respondent understood that this was the "correspondence" referred to in the internal review application. It noted that "Bran" was the then-Premier's Chief of Staff. However, the respondent does not know the provenance of that message and cannot comment on its reliability. It is at least third-hand hearsay and on its own it is not reliable evidence of anything. In the event that the text message is what the applicants allege it to be, it records a request for a briefing, but not the fact that a briefing was ultimately provided. That is relevant where there is evidence from Mr Davis that a "backgrounder" was requested from the respondent, but that because of the timing of the request, none was provided 2. An email from Simon Rowell, Director, Economic Police, DPC, to Mr Tom Morrison dated 21 September 2022. That email was apparently provided to the applicants in answer to a GIPA request made to the Office of the Premier and the respondent assumed that Mr Morrison was employed by that office. The respondent notes that the applicants rely upon this as evidence that a briefing exists because the information known to Mr Rowsell (under the heading "What happened?) is information that was held by or originated from the respondent. It understands that this is the "contradictory info" referred to in the grounds for the current administrative review application. However there are a number of difficulties with this argument: 1. There is no evidence beyond the applicants' assertion that the information in the email came from the respondent; 2. To the contrary, Mr Rowsell's email states that the "sources" of the information are two publicly available websites - (i) an article in the Sydney Morning Herald dated 7 November 2021; and (ii) Crown Lands' website about the proposed Katoomba Airfield lease; 3. The email from Mr Rowsell also states that it is "an initial review" and "we have not discussed yet with agencies"; 4. Mr Rowsell is an officer of DPC. Even if, contrary to what the email says, information in it came from the respondent, that would not be a briefing responsive to the GIPA request since briefings from DPC are not sought.
11. The respondent argued that the other documents relied upon by the applicants do not provide a sound basis from departing from Mr Davis' coherent and direct evidence.
12. Therefore, the Tribunal should be comfortably satisfied that the information sought in the GIPA request is not held by the respondent and it should affirm the decision under review.

Applicants' submissions

1. In their written submissions filed on 8 May 2023, the applicants stated that they challenge "the false narrative in the 'history of matter' by the respondent and the affidavit of Mr Davis". They argued that they had lodged "indisputable evidence" and that it was imperative that the Tribunal is informed of an accurate and factual background. The purpose of the GIPA request was to seek transparency to information provided to the former Premier. For the Tribunal to be able to determine that the information is held, it must first understand the matter along with the "respondent's misrepresentation of facts".
2. The applicants then set out an extensive history of the matter that led to the GIPA request and current application before the Tribunal. I have not extracted this in these reasons because I do not consider that they are relevant to the dispute that the Tribunal is required to determine, namely whether the respondent conducted reasonable searches in order to locate information within the scope of the GIPA request.
3. The applicants stated, relevantly: Briefing of (former) Premier Perrotet 25. Since January 2020 the Applicant has repeatedly communicated with (former) NSW Government Ministers raising concerns, referencing, and providing copies of irrefutable evidence that contradicts "the false narrative" by the respondent. 26. Dissatisfied by the NSW Government's ongoing handling of the matter, on 15 June 2022, at a private NSW Liberal Party luncheon, a long-time friend of the (former) Premier, Mr Les Taylor AM, handed the Premier a letter from the applicant outlining the Katoomba Airfield matter, highlighting evidenced discrepancies between the legislated lease process and actions taken by the Department: Annexure A and B. 27. The following week at a pre-budget function the (former) Premier remarked directly to Mr Taylor "I've got somebody looking into the matter": Annexure A. 28. Following the applicant's discussions with Federal Senator Hollie Hughes regrading its ongoing concerns, Senator Hughes approached the (former) Premier's Chief of Staff, Mr Bran Black, on the applicant's behalf. On 12 July 2022 Senator Hughes subsequently received confirmation from Mr Black that he has asked for a full briefing on his return from overseas: Annexure N. DPE Legal Oversight 29. 15 September 2020, following the applicant's appeal to Secretary DPE Mr Jim Betts, the applicant was provided with a point of contact within DEP Legal for future correspondence: Annexure O. 30. 13 November 2020, DPE Legal approved the introduction of the new requirement for the applicant to demonstrate the existing use rights of Katoomba Airfield as a prerequisite to lease negotiations: Annexure I. 31. 2 June 2021, in a brief to (former) Minister Stokes the respondent states: …the whole matter is now oversighted by DPIE Legal to ensure probity, legality and governance are upheld: Annexure K (p5). 32. 2 September 2021, the respondent provided the applicant with 7-days to demonstrate a planning pathway (existing use rights) to the satisfaction of the Department. The point of contact provided to the applicant is DPE Legal: Somerset Hoy, Deputy General Counsel: Annexure J. 33. 1 September 2022, Davis Affidavit Annexure "C", letter from (former) Minister Anderson to the applicant, states the point of contact for any queries is DPE Legal: Somerset Hoy, Deputy General Counsel. 34. & September 2022, Davis affidavit Annexure "B", email from Mr Davis to Ms Courtney states: Please note the contact officer in DPE is Somerset Hoy, Deputy General Counsel… 35. 20 October 2022, in brief to (former) Minister Anderson, the respondent references the applicant's point of contact is DPE Legal; Somerset Hoy, Deputy General Counsel; Annexure L. 36. 13 April 2023 Affidavit of Mr Jeremy Davis was witnessed by Solicitor Somerset Hoy. Office of the (former) Premier/Premier and Cabinet 37. 21 September 2022, in an email from Mr Rowell, Director, Economic Policy, DPC to Mr Morrison, Office of the Premier, in the opening paragraph, Mr Rowell states: As legal questions have now been raised, it should continue to be referred to the relevant legal counsel for formal correspondence: Annexure P. 38. In this submission the applicant has ensured the Tribunal is accurately briefed on the true history of the matter, with evidence. The "false narrative" referenced above is reflected in the "What happened?" section of Mr Rowell's email. The misinformation is consistent with misrepresentations made by the respondent in correspondence and Ministerial briefs (Annexures I, J, K, L and M).The same misinformation is included in Mr Rowell's email (Annexure P). the applicant considers it is not unreasonable to believe that the origins of the information (briefings) are from the same source, DPE Legal. 39. To highlight the misinformation and missing information in Mr Rowell's email, the applicant has filled in the gaps and corrected errors in the "What happened?" section: Annexure Q. In summary, the applicant contends that the respondent did not conduct sufficient and reasonable searches, but limited its searches by not including the primary contact and DPE Legal who has had complete oversight of the matter, including the overseeing of correspondence and communications.

Respondent's written submissions in reply

1. The respondent filed submissions in reply on 19 May 2023, in which it stated that most of the applicants' submissions is directed to establishing that it has submitted a "false narrative" about the background to the matter. It argued that except as it bears upon the circumstances of the GIPA request being made, and potentially upon its proper interpretation, that material is irrelevant as neither of those specific issues in in dispute. The Tribunal has no power to determine what is ultimately a contention about the validity of past administrative action taken by a Minister under the Crown Land Management Act 2016.
2. The respondent also noted that annexure Q to the applicants' submissions is a document that they prepared. In addition to being irrelevant, it should be treated as part of the submissions rather than evidence.
3. The respondent otherwise stated: 7. It may be accepted that Ms Hoy and other officers of DPE Legal - and, no doubt, many other officers of the Department over the past six years - have been involved in the Katoomba Airfield dispute. In the case of Ms Hoy specifically, it may also be accepted that she has been nominated as a point of contact. 8. The respondent's evidence is focussed on the information actually sought by the applicants. The information sought is limited to a "brief" provided by the respondent to the Premier or his Office. The Davis affidavit demonstrates that that could not have occurred, except with the involvement of Ms Hawyes: at [17]-[28]. Her office was the gateway through which a briefing must have passed, if it existed. Assuming, favourably to the applicants' hypothesis, that Ms Hoy had been involved in preparing a responsive brief, it would still have had to pass by Ms Hawyes, and Mr Davis would have found it during his searches. 9. The obligation is for the respondent to have made reasonable searches: s 53(2) of the GIPA Act. That obligation was met by referring the matter to Mr Davis, who was in the best position to conduct the searches. It is no part of the respondent's obligations, in answer to the access application, to ask every officer involved in a matter to conduct searches. That the applicants can identify an officer who did not personally conduct searches is therefore not to the point. The submission does not raise any basis to doubt the evidence of Mr Davis that, if a briefing had been prepared, he would have turned it up by conducting the searches that he did.
4. The respondent stated that to the extent that the Premier's reference to somebody "looking into the matter" is relied upon, it would be purely speculative to find, on the basis of a passing comment, that it subsequently provided him with a briefing.
5. Further, to the extent that the applicants maintain the argument that Annexure N calls into question its findings, that submission should be rejected. To the extent that the applicants suggest that Annexure P demonstrates that a briefing was provided, the submission should be rejected. The applicants appear to acknowledge, in saying "it is not unreasonable to believe" that the documents have a common source, that there is no evidence for that conclusion. However, there is evidence to the contrary as Annexure P expressly lists its sources.
6. Accordingly, the respondent concluded that nothing in the applicants' submissions or its annexures provides any basis for finding that its searches were not sufficient, much less that the information sought by the applicants was held by it. Therefore, the Tribunal should affirm the decision under review.

Respondent's oral submissions

1. In its oral submissions, the respondent argued that Mr Davis' evidence was not seriously challenged in cross-examination. Therefore, the tribunal should find that the requested information is not held by the respondent.

Applicants oral submissions

1. The applicants maintained their argument that DPE Legal had oversight and that as Mr Davis did not request any search by DPE Legal, the respondent had not conducted reasonable searches.
2. At the conclusion of oral submissions, the Tribunal reserved its decision.

Applicable law

1. In determining an application for review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: s 63(1) of the ADR Act. For this purpose, 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.
2. The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3) of the ADR Act.

The agency's search obligations

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

Relevant legal principles

1. The principles regarding the issue of reasonable searches under the GIPA Act were canvassed by the Appeal Panel in Wojciechowska. I have applied those principles to the circumstances of this matter.
2. Based upon Mr Davis' evidence, I am satisfied that: 1. The most likely way in which the respondent would have received a request for a Ministerial briefing is via a request from the relevant Minister's Office, which in turn would receive a request from the Premier's Office. In the case of a matter relating to Crown Land, Minister Anderson's office is the relevant office, but it is also possible that a request for a briefing could issue from the Department of Premier & Cabinet (DPC). In some cases, briefing requests come directly from the Premier's Chief of Staff. 2. In any of these cases, it is likely that any request relating to Crown Land would come directly either to Ms Hawyes or to Mr Davis, as Ms Hawyes is responsible for Crown Lands. Mr Davis would then allocate the request to the relevant business unit within Crown Lands to prepare a response; 3. Once a briefing note had been prepared, it would be approved and progressed by a number of people within Crown Lands and the respondent before being provided to an external party such as the Premier's Office, the Minister's Office or the DPC; 4. In the case of a briefing relating to Katoomba Airfield, it is likely that any briefing would have been approved by at least the Director, Operations East, Crown Lands (because Katoomba is in the Eastern Division of NSW for Crown Land purposes) and the Executive Director, Land and Asset Management, Crown Lands, before being provided to Ms Hawyes for her approval. Depending on the nature and the sensitivity of the matter, the briefing might also be approved by the Secretary of the respondent before being provided to the requesting party. 5. Based on his knowledge of this process of requesting and making briefings for the Premier, Mr Davis was confident that a briefing note could not have been provided without his knowledge, except in one case that he discussed in his affidavit. He was confident that any written briefing note would have passed through his email account, except as where the matter was highly confidential. In that event, Ms Hawyes would provide a briefing without his involvement. However, it was unlikely that a briefing relating to Katoomba Airfield would have been provided in that way and in any event, it would have passed through Ms Hawyes' email account, which he searched.
3. I am satisfied that Mr Davis searched the respondent's Content Manager (also known as CM9) and that this should contain any briefing note that has been finalised and provided to an external party. However, I accept his evidence that it is possible that this did not occur and for this reason, he was more confident in concluding that the requested document did not exist after searching his email account. He also searched SharePoint and various network drives, but he would not expect a finalised briefing note that had been provided to the Premier to remain in a network drive.
4. The applicants assert that the respondent did not conduct reasonable searches because DPE Legal was not involved in the searches and DEP Legal had oversight of the matter. However, with respect to the applicants, while DPE Legal may have had oversight of the dispute under the Crown Lands legislation, there is no evidence before me to establish that DPE Legal had oversight with respect to either the GIPA request or the "Briefing" sought in it.
5. On the contrary, I accept Mr Davis' evidence that his office was responsible for answering the GIPA request and that any Ministerial briefing in relation to Crown Lands would pass through his email account and/or that of Ms Hawyes. He searched both and found no evidence of a briefing.
6. Although the applicants argue to the effect that there must have been a briefing, based upon communications that they received from Mr Taylor, the information provided by Mr Taylor does not provide a sound basis for finding that a request for a Ministerial briefing was issued by the former Premier, his Chief of Staff or the DPC to the respondent. It does not provide a sound base for a finding that either an oral or written request for a briefing of the type sought in the GIPA request was ever issued to the respondent.

Conclusion

1. For these reasons I am satisfied that the searches that the Council undertook to locate the documents sought by the applicants were reasonable for the purposes of meeting its obligations under s 53 of the GIPA Act, and that the searches yielded no relevant documents. In my view it is unlikely that further searches would be successful in locating information which falls within the scope of the GIPA request.
2. In these circumstances, the correct and preferable decision to be made by the Tribunal is to affirm the respondent's decision.

Order

1. I make the following orders: 1. The name of the respondent is amended to "Department of Planning & Environment". 2. The decision under review is affirmed. 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

Amendments 23 August 2023 - Paragraph [44] Ms Hawyes amended to Ms Hoy 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: 23 August 2023