Larsen v Department of Planning, Industry and Environment

Access application and review

1. The Applicants made an access application dated 22 November 2023 for all "correspondence to/from Penrith Press and DPE (formerly DPIE) in relation to Katoomba Airfield" for the period 1/12/2019 to 31/12/2021" ("Access Application").
2. The Respondent's evidence was that following the making of the Access Application, the Respondent decided, on 11 December 2023, that the information sought was not held by it.
3. An internal review of the Applicant's access application was carried out by Ms Jessica Khalil for the Respondent. She arranged for further searches. These further searches produced no information within scope. By notice of decision dated 22 January 2024, the Respondent decided that the information applied for was not held by the Respondent ("Decision").
4. The Applicants by application dated 24 February 2024, sought administrative review of the Decision made by the Respondent.
5. Against this background, the Applicants seeks "transparency to the Penrith Press enquiry as well as the Respondent's response on 7 December 2020" (Applicants' Submissions of 6 May 2024, p 1).

Powers of Civil and Administrative Tribunal

1. The powers of the Civil and Administrative Tribunal ("Tribunal") to review a decision arise where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") of that decision (s 100 of the Government Information (Public Access) Act 2009 ("GIPA Act")).
2. What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act. They include a decision that government information is not held by the agency (s 80(e) of the GIPA Act).
3. An "agency" is defined in s 4(1) of the GIPA Act to include a "Public Service agency". "Public Service agency" is defined in Schedule 4 to the GIPA Act as a Public Service agency under the Government Sector Employment Act 2013 (NSW), which in turn defines, by s 3 of that Act, a Public Service agency to include a Department listed in Part 1 of Schedule 1 to that Act. Part 1 of Schedule 1 to that Act includes the Department of Planning, Housing and Infrastructure.
4. It was agreed that the proper respondent in these proceedings was the Department of Planning, Housing and Infrastructure. This was the successor to the entity to whom the access application in this matter had originally been made.
5. An agency has made a "reviewable decision" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being a decision that government information is not held by the agency.
6. The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.
7. The provisions of the GIPA Act referred to above apply where the Applicants have made a valid "access application" seeking "government information". It is not in issue that the Applicants made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information". (See definition of these terms in s 4 of the GIPA Act.)

Hearing

1. The Applicants were self-represented at the hearing. The Respondent was represented by the Crown Solicitor.
2. Evidence given on behalf of the Respondent included an Affidavit of Ms Jessica Khalil dated 23 April 2024 ("Affidavit of J Khalil"). Ms Khalil was a Senior Legal Officer at the Department of Climate Change, Energy, the Environment and Water. She was acting as Manager, Information Access and Privacy, at the time of internal review of the Access Application. She was, at the time, responsible for receiving, processing and managing applications under the GIPA Act and for conducting internal reviews. Ms Khalil was unable to attend the hearing.
3. Evidence, on behalf of the Respondent, was also given by Ms Jenefer Plummer by Affidavit dated 13 May 2024 ("Affidavit of J Plummer"). She was present at the hearing to give evidence. Ms Plummer was, at the time of the hearing of this matter, Manager of Information Access and Privacy at the Department of Planning, Housing and Infrastructure. She had direct knowledge of the Access Application and assigned the application to an officer in the team when originally received in November 2023.
4. The Applicants had the opportunity to ask questions of Ms Plummer and did so. They did not have the opportunity to ask questions of Ms Khalil. Ms Plummer indicated that she was prepared to answer questions the Applicants had in respect of Ms Khalil's evidence, on the basis that Ms Plummer had sufficient knowledge of the matters put into evidence by Ms Khalil.

Submissions

1. The Applicants raised two matters for determination, namely 1. Whether reasonable searches were undertaken; and 2. Whether statements of the Applicants "sufficiently indicate that information is held".
2. The Applicants did not consider that reasonable searches were undertaken. They referred to the "Confidential Secretary Media Briefs" that recorded "Penrith Press seeks an update about the Katoomba Airfield lease process" and recorded that "Penrith Press receives update on 7/12/20". They believed documents dealing with this subject matter must exist.
3. The Applicants said that they had been told that the Respondent did "not hold correspondence to/from Penrith Press in relation to Katoomba Airport". The Applicants say that "this directly conflicts with information released under GIPA 24-3058, namely nine (9) redacted Confidential Secretary Media Briefs" that referenced "Penrith Press" (Applicants' Submissions of 6 May 2024, p 2).
4. The Respondent, on the other hand, submitted that it had complied with its statutory obligations to undertake reasonable searches. It did so in its response to the original application and alternatively, by undertaking two further searches.

Applicant's right to information

1. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
2. A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
3. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government Information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
4. There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only 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). However, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act).
5. The burden of establishing that a reviewable decision made under the GIPA Act is justified lies on the agency (GIPA Act (s 105(1)).
6. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1): "(a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency…"
7. The GIPA Act requires an agency to undertake 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. That obligation is set out as follows in s 53 of the GIPA Act. "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".

Reasonable searches

1. The Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 ("Klaric") considered the effect of s 53 and specifically what powers the Tribunal had where a question arose as to whether reasonable searches had been conducted. It said, 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".
2. While the reasonableness of searches is not, in and of itself, reviewable, it is, however, a relevant consideration as to the correctness of a determination that information is not held. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 ("Wojciechowska") at [41], the Appeal Panel clarified the finding in Klaric in the following terms: "… whether the agency has complied with the obligation imposed by s 53 is plainly a relevant factor in determining whether an 'information is not held' decision is the 'correct and preferable decision'".
3. In Wojciechowska, the Appeal Panel also said that an access applicant is not required to establish that there are reasonable grounds to believe that the requested information exists and is held by an agency, before that agency must undertake searches. Instead, it falls to the agency to assess whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by the agency. It went on to describe how the question of whether searches are "reasonable" should be addressed. It said, at [43]): "In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "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": s 53(2) of the GIPA Act. 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. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act".
4. The Appeal Panel then summarised the task for the Tribunal in reviewing a decision that information is not held by an agency at [44]: "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 Administrative Decisions Review Act".

Electronic retrieval

1. In Robinson v Commissioner of Police [2014] NSWCATAP 73, the Appeal Panel at [28] observed that, in establishing whether adequate searches had been made, evidence must be shown as to the nature of searches undertaken, the means of the searching used and whether systems of electronic retrieval have been used.

Were the Respondent's searches "reasonable"?

1. In a case where electronic retrieval systems were used as in the present matter, there is evidence of the search parameters including the range of the terms searched, the date range of the searches and the extent of the databases brought within the searches. The evidence was that there were three searches carried out on electronic data bases, each within different search parameters. They were as follows: 1. The original search used keywords of "Katoomba Airfield and Penrith Press". The date range of these searches was 1 January 2019 to 31 December 2021. The search covered the personal and Microsoft Outlook emails of a member of the Respondent's "Media Team" and "any Media team files, drives or shared inboxes that he had access to". The search produced correspondence from other media outlets concerning Katoomba Airport but no communications from or to "Penrith Press". 2. The second search was conducted by 17 January 2024. It covered all emails over a specified period from an address ending in the domain containing "@penrithpess.com.au" containing the keyword "Katoomba". It produced 65 results. The period covered by the search was 1 December 2019 to 31 December 2019. No information was found within scope (Affidavit of J Khalil, paras 20-22). The search used the system "CS Connect". The request covered "all outlook inboxes in the department" (Affidavit of J Khalil, para 20). 3. On 8 May 2024, further searches covered emails to or from "news.com.au" containing the terms "katoomba" or "Penrith". The request covered "all staff". The search covered the period 1 December 2019 to 21 December 2021. The search request went to the Respondent's "ICT division - DPHI's dedicated Corporate Services Portal, CH Connect". Seventeen documents contained the terms "katoomba airstrip", "katoomba airport" or "ykat". None involved "Penrith Press" or were close to December 2020 (Affidavit of J Plummer, para 11, numbered para 8).
2. Each of the searches carried out appears to have covered a different range compared with the other searches, first of all, in terms of the words and phrases searched. The terms searched were "Katoomba Airfield and Penrith Press"; "Katoomba" and "Penrithpess.com.au"; "Katoomba" or "Penrith" and emails to or from "news.com.au". The evidence of the Respondent was that none of these searches produced results that were in scope.
3. The scope of these searches appears to have been restrictive. The first search looked for documents within a limited data base, based on what one person could access. The second search, covered a wider range of databases, using the terms "Katoomba" and "@penrithpess.com.au". The third search looked for "Katoomba" or "Penrith" and emails to or from "news.com.au". The second and third of these searches may not have found any relevant material that did not involve either "@penrithpess.com.au" or "news.com.au".
4. Searches for the terms "Penrith" and "Katoomba" together with the appropriate terms or terms capturing the asset in question, such as "Airfield", "Airport" or "Aerodrome", without limitations upon the searches based on particular domain names or email addresses, in my opinion, are more likely to answer the description of "reasonable" searches. However, it is the Respondent who should be in the best position to understand its own data system and workings of the search engines used for finding information. It is therefore a matter for the Respondent, when making reasonable searches, to identify search parameters that are not unduly restrictive.
5. The extent of the data bases searched also requires consideration. 1. The first search appears to have been limited to the data available to a member of the Respondent's "Media Team" and "any Media team files, drives or shared inboxes" that he had access to. 2. The second search appears to have covered a wider range of data bases, using "CS Connect", although exactly what these data bases encompassed is less clear. The Respondent describes the scope as covering "DPIE as a whole" (Submissions of Respondent dated 23 April 2024, p 7). It produced 65 results. It is unclear whether data bases other than "outlook inboxes" were searched (Affidavit of J Khalil, para 20). 3. The third search request went to the Respondent's "ICT division - DPHI's dedicated Corporate Services Portal, CH Connect". The request covered "all staff". A search that covered "all staff" appears wide. However, what is less clear is what databases the search encompassed and whether the databases searched covered all records that could have been reasonably searched.
6. The question, however, is not one of the sufficiency of the Respondent's searches. That there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate (Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]). The facts at hand, however, do not involve simply inferences of weaknesses in searches or failures in recordkeeping. What the evidence discloses is unexplained restrictions of the search terms used as I have found at [44] - [45] above, as well as a lack of sufficient identification of the electronic databases that kept relevant information, to allow a determination to be made that reasonable searches were made.
7. The requirements upon an agency to discharge the onus of proving that searches of electronic databases were reasonable were described in Alam v Insurance and Care NSW, [2020] NSWCATAD 148. Higgins SM said, at [55] "In opinion, s 53 of the GIPA Act does not require the agency to provide specific details of search engines or algorithms of its electronic data systems. Nor, in my opinion, was it necessary for the respondent to provide any information or an explanation of this kind. What is required, in order to discharge its onus that its search efforts were reasonable, an agency must identify the electronic systems and platforms on which it retains information of the kind sought by the access applicant and what searches were conducted on those systems and platforms for the information sought". The Respondent on the evidence has, in general terms, identified the electronic systems and platforms on which it retains information and what searches were conducted. However, from the general descriptions given, what is less clear is whether the Respondent identified the particular databases within the system it has described, to meet the test of "reasonable". Simply searching "outboxes" may not be sufficient, depending on what other folders are in use by the Respondent to store data, such as inboxes, drives and folders that store documents other than emails. The Respondent should give further consideration to what data bases could reasonably be searched and if not all relevant databases were searched, make reasonable searches.
8. As to why the searches did not reveal any information concerning "Penrith Press" despite evidence of the existence of such documents, the Respondent appeared to have two explanations. They were firstly that, the references to "Penrith Press" may have been an error, in that the term may have actually meant the "Blue Mountains Gazette". This explanation is puzzling. The names of the two press organisations are quite different. The geographical locations of "Penrith" and the "Blue Mountains" are also different.
9. The Respondent further explains the media briefs in question were "dynamic documents". If the process of updating such documents involved the deletion of prior content and no record of that prior content being kept, this may hypothetically explain why references to "Penrith Press" could not now be found. Implicit in the Respondent's explanation, is the proposition that earlier drafts of "dynamic documents" are either not kept or are outside the reach of the searches undertaken. However, a more complete explanation was not given, leaving doubt as to the explanation provided.
10. There is no necessary requirement for looking for information once held but no longer on the primary systems. In Robinson v Commissioner of Police [2014] NSWCATAP 73 at [26] - [27], the Appeal Panel made the following observations about s 53 of the GIPA Act: "It will be seen that s 53 commences by confining limiting the agency's obligation to respond to a request to information held by it at the time of receipt of the request (sub-s (1)).This protection against having to look for information once held but no longer in the primary systems of the agency is buttressed by sub-s (4), which makes it unnecessary for the agency to search electronic back-up systems (subject to narrow exceptions). Importantly, sub-s (2) states that the agency 'must undertake reasonable searches as may be necessary' to find the requested information, and must do so 'using the most efficient means reasonably available to the agency'. The latter obligation is amplified by the obligation imposed by sub-s (3). As already noted, sub-s (4) protects the agency from having to make searches of electronic back up systems. Sub-s (5) contains the important qualification that searches that involve a 'substantial and unreasonable diversion of resources' need not be undertaken".
11. While searches of backup systems may not be required, the obligation to make reasonable searches remains.
12. The further observations of the Appeals Panel in Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAP 257 as to the adequacy of searches of electronic databases are also relevant: "I accept…. , that a relevant factor in determining whether the NSWPF satisfied .. [its obligations under s 53] …. is whether, at the time …[the person carrying out searches] … searched for the requested information, he had sufficient knowledge of the NSWPF's databases and how to search those databases together with the skill to be able to apply that knowledge. I accept…. , that he is familiar with the NSWPF's databases and has received some training in how to search them. Nonetheless, he could not be described as a forensic IT expert. A person with such expertise is likely to have been able to conduct a more rigorous and comprehensive search. It does not follow that the obligation imposed by s 53 is not satisfied. It requires "reasonable searches" to be undertaken using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically" (s 53(3)). Notably, an agency is not required to undertake any search that would require a "substantial and unreasonable diversion of the agency's resources": s 53(5). There may be cases where a person's lack of knowledge of an agency's databases and/or lack of knowledge and/or skill in retrieving information, tends to indicate that the search undertaken could not be characterised as reasonable….. While s 105 requires the NSWPF to establish that the "information not held" decision is justified, it does not require the NSWPF to disprove that it holds the requested information. Having reviewed the available material and the submissions made by the parties, I am satisfied on balance that the NSWPF has discharged the obligation imposed by s 53".
13. I accept that Ms Khalil and Ms Plummer had sufficient knowledge of the Respondent's data system. Ms Khalil, acting as "Manager, Information Access and Privacy", at the time of internal review of the access application, was, at the time, responsible for receiving, processing and managing applications under the GIPA Act and for conducting internal reviews. Ms Plummer, Manager of Information Access and Privacy at the Department of Planning, Housing and Infrastructure, had direct knowledge of the access application and assigned the application to an officer in the team when originally received in November 2023. I accept the evidence of Ms Khalil and Ms Plummer as far it goes.
14. Nevertheless, on the balance of probabilities, I find that "reasonable searches" were not undertaken, having regard to the following matters: 1. the restrictive parameters of the search terms used ([44] - [45] above); 2. the uncertainty as to whether the databases searched covered all data bases that could be expected to hold the information the Applicants seek and be found through reasonable searches ([48] above); 3. the incomplete explanations given by the Respondent as to why the documents in question were not found ([49] - [50] above).
15. The Respondent bears the onus of proving in this matter that its search efforts were reasonable. I am unable to satisfy myself that it has done so for the reasons set out above.

Conclusions

1. I find that the Respondent has not proved on the balance of probabilities that it did not hold the information the subject of the Applicants' access application and undertook reasonable searches for that information. Accordingly, I set aside the administratively reviewable decision made by the Respondent on 22 January 2024 and remit the matter for reconsideration by the Respondent, having regard to the matters at [45] and [48] above.

Orders 1. The administratively reviewable decision of the Respondent of 22 January 2024 is set aside. 2. The administratively reviewable decision of the Respondent of 22 January 2024 is remitted for reconsideration by the Respondent.

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 June 2024