Loussikian v University of Sydney

The issues for determination.

1. It is common ground that the following issues arise for determination 1. What constitutes an unreasonable and substantial diversion of an agency's resources? 2. Would dealing with the application constitute an unreasonable and substantial diversion of the University's resources in accordance with section 60 of the GIPA Act? 3. Should the Tribunal affirm, vary or set aside the University's decision?

Applicable Legislation

1. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Pursuant to subsection 9(1) of the GIPA Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act, unless there is an overriding public interest against disclosure.
2. Pursuant to section 13 of the GIPA Act, there will only be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
3. However, in accordance with section 60 of the GIPA Act, an agency may refuse to deal with an access application in prescribed circumstances. The power of an agency to refuse to deal with an access application is a powerful one and should be used only as a last resort after making every attempt to assist an applicant to narrow their request.
4. Section 60 relevantly states 60 DECISION TO REFUSE TO DEAL WITH APPLICATION (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, ... (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. (3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. (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.
5. A decision to refuse to deal with an access application is a reviewable decision under section 80(c) of the GIPA Act.
6. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. Section 60(5) requires that the notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. An assertion without any explanation or supporting reasons will be insufficient to meet those requirements. In Taylor v Destination NSW [2017] NSWCATAD 272 Senior Member Dinnen noted at paragraph [32]: In addition, whilst the reviewable decision referred to s60 of the GIPA Act as "the reason of dealing with this application would require an unreasonable and substantial diversion of the Destination NSW resources", this is in the nature of an assertion without any explanation or supporting reasons provided as required by s60(5) of the Act. Whilst the Respondent has sought to characterise submissions and evidence filed in these proceedings as proof of its compliance with s60(5) of the GIPA Act, I reject those as irrelevant in circumstances where they have only been provided following the applicant's request for administrative review by this Tribunal, for the purpose of these proceedings.

What constitutes an unreasonable and substantial diversion of resources?

1. The section 60 discretion to refuse to deal with an application is based on an assessment of the resources that would be needed to deal with the application. It relates to the resources that are available to the University and the available resources are solely within the control of the University.
2. The GIPA Act does not define what is meant by 'an unreasonable and substantial diversion of resources', however the Tribunal has considered these concepts in matters under the former Freedom of Information Act 1989 and more recently in decisions under the GIPA Act.
3. The parties agree that the factors listed by O'Connor DCJ in Cianfrano v Premier's Department [2006] NSWADT 137 at paragraphs [62] to [63] ("Cianfrano") are relevant considerations on any assessment of what constitutes an unreasonable and substantial diversion of resources. In Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130, the Tribunal confirmed that the considerations identified in Cianfrano remained relevant to the assessment to be performed under section 60(1)(a) of the GIPA Act. This approach has been adopted in other matters before the Tribunal.
4. In Cianfrano O'Connor DCJ identified a non-exhaustive list of factors that he considered relevant to the assessment of what might constitute an unreasonable and substantial diversion of resources, for the purposes of section 25(1)(a1) of the Freedom of Information Act 1989 (NSW). He stated, references omitted: 62 As I see it, the factors that are relevant to an assessment of the kind required by this case, include: (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' … (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort … (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency … (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications. 63 This is, of course, not intended, in any way, to be an exhaustive list of possible considerations.

Would dealing with the application constitute an unreasonable and substantial diversion of the University's resources?

The University's case

1. As noted, the University refused to deal with the original application. A preliminary search revealed that there were more than 1,300 emails falling within the scope of the request.
2. The Applicant narrowed the scope of the request to only seek emails sent and received by Dr Anderson in April and May 2017 that included the words 'Bashar al-Assad', 'Syria' and 'Palestine'. The University's search revealed that there were 674 emails that fell within the scope of that narrowed request.
3. Mr Macpherson, the University's Right to Information Officer, processed the first 25 of the identified emails. He calculated that to process the 674 emails would require at least 139 working hours. This included the time required to list, number, assess for public interest considerations against disclosure and consultation requirements, and convert the emails to PDF format. It also included the time required to prepare consultation letters and make draft redactions to the emails. It did not include any additional time for following up and acting on the outcome of consultations with third parties, drafting the decision, peer review, communications with the decision maker, or filing.
4. The Applicant subsequently narrowed the scope of the request further by limiting the search to the term 'Syria' in April 2017. The University proceeded on the basis of that revised application.
5. Mr Macpherson's evidence is that there are 243 email chains with 103 attachments, totalling 1,123 pages that fall within the scope of the Applicant's revised application.
6. Based on the earlier 25 emails trial that he had conducted he estimated that it would take approximately 50 hours to process the relevant documents. This estimate did not take account of the time required to send and follow up consultation letters, negotiate with third parties or act on third party consultations. Nor did it include any time for drafting the decision, peer review, communications with the decision maker, or filing.
7. Mr Macpherson's evidence, also based on the earlier 25 emails trial, is that he anticipated that the emails would contain a significant amount of personal information, which would require extensive consultation with third parties. He considered that these consultations were likely to be protracted and time-consuming and that the balancing of factors in favour of and against disclosure would require quite difficult and time consuming consideration. Mr Macpherson is also of the view that dealing with the application would require the full-time attention of an experienced staff member.
8. Taking into account all of the relevant factors, he estimated that it would take between 10 and 15 staff days for the University to process the revised application. The approximate cost per day is $600.
9. In regard to the resources available to the University to deal with GIPA applications, Mr Macpherson stated that: Applications for access to information under the GIPA Act and the PPIP Act, and internal reviews under the PPIP Act, are handled by a team of three people employed in the University's Archives and Records Management Services, including one full time Information Access and Privacy Officer. The full time equivalent is approximately two staff, plus the decision maker, Mr Alex Maitland, Group Secretary. In 2017, the University received 51 new applications for access to information under the GIPA Act, of which 44 were decided in the 2017 calendar year. In addition, the University decided six applications for internal review under the GIPA Act. The University also responded to five internal review requests, one amendment of records and three requests for access to information under the PPIP Act. In July 2017, the University received seven new applications for access to information under the GIPA Act, including four from the Applicant.
10. Mr Macpherson further stated that: In my work diary, I record the time that I spend on each task. Between 24 July and 6 September 2017, I recorded that I had spent 37 hours and 15 minutes on the Applicant's original application, revised application and second revised application. I am aware that Mr Robinson and my colleague, Ms Deborah Gibson, Information Access and Privacy Officer, had also spent time on those applications between 13 and 24 July 2017.
11. Mr Macpherson also noted that the University had processed the Applicant's other GIPA Act access applications.
12. The present access application was made in the Applicant's capacity as a journalist. The University contends that the importance of the information to the Applicant should be viewed in that context, and relative to the importance of access to information by, for example, people seeking access to their own information or information about them.
13. The University acknowledges that caution needs to be exercised by the Tribunal with respect to estimates of processing time but notes that Mr Macpherson's estimate of 10 - 15 days processing time is well in excess of the 40 hours referred to by O'Connor DCJ in Cianfrano. Ms Heesom, solicitor for the University, submits that when the trial undertaken by Mr Macpherson is taken into account, the Tribunal could be satisfied that the estimate of 10-15 days processing time is a reliable estimate.
14. Ms Heesom submits that the diversion of resources required to deal with the revised application would be both unreasonable and substantial. Accordingly, the Tribunal should affirm the University's decision.
15. I note that Ms McInnes was critical of some aspects of the University's submissions. I also note that Ms Heesom responded to that criticism. I am satisfied that her response clarifies and answers the issues that Ms McInnes raised.

The Applicant's response

1. The Applicant accepts the factual background as outlined by the University and agrees with its construction of the issues for determination. However, he contends that the University's dealing with the revised access application would not constitute an unreasonable and substantial diversion of its resources and that the University is not able to rely on section 60(1)(a) of the GIPA Act in its refusal to do so.
2. In support of that position the Applicant contends that the terms of the revised application give a description that is sufficiently precise to permit the University to locate the documents sought. He disputes the University's contention that the nature of Dr Anderson's work makes the revised application "very broad". He notes that Dr Anderson's published works encompass a wide range of geopolitical concerns.
3. The Applicant concedes that the documents sought under the revised application are not of demonstrable personal importance to him. However, he submits that the subject matter of the revised application involves the allocation of public funding to a senior university professor who has a history of supporting and taking travel from governments that both the UN and Australia consider have committed, and continue to commit, war crimes. As such, the Applicant submits that the documents sought are of public importance.
4. The Applicant also notes that in Cainfrano the subject matter of the application was one of public importance.
5. The Applicant concedes that his original access application was unreasonably broad. However, he submits that he acted in a timely, co-operative fashion to narrow the scope of his request and that his revised application is distinguishable from the original application.
6. In regard to the question of whether the request is a reasonably manageable one the Applicant contends that the revised application is one of a very limited scale. He submits that the University has a team of three employed staff, plus a Group Secretary, dedicated to processing requests made under the GIPA Act. He contends that the University is a large, well-endowed agency, with a dedicated archives and records management resource available to it, and that this should be borne in mind when assessing whether the University has reasonably relied upon section 60(1).
7. The Applicant questions the reliability of Mr Macpherson's estimate that it would take 10 to 15 working days to process the revised application. He contends that this estimate is primarily based upon a trial conducted by reference to an application that was cast in broader terms than the revised application. He submits the trial cannot reasonably be used as a measure for estimating the processing time of the revised application.
8. The majority of time spent during the trial is attributable to drafting consultation letters. The Applicant further submits that Mr Macpherson's estimate is unreasonable because it proceeds on the basis that each set of 25 emails will require the drafting and issue of 23 consultation letters. He concedes that third party consultation would likely be required in relation to the revised application. However, he submits that there would inevitably be some overlap between the third parties required for consultation.
9. The Applicant further submits that the University has not adequately demonstrated that the consultation would be more protracted and time-consuming than usual. He submits that whilst the consultations may require a degree of political sensitivity, they would not necessarily take up more staff time.
10. Further, he submits that the estimate does not take into consideration that repeat emails in email chains would not require detailed scrutiny. He submits the University's estimate of processing time is unreliable and that the actual processing time would be considerably lower.
11. However, he submits that even if the estimate of 10 to 15 staff days is accepted as reliable, such an estimate does not constitute an unreasonable and substantial diversion of agency resources as the University is an agency of considerable capacity to deal with the request. Further, even accepting the 10 to 15 staff days estimate, he says that the University ought to have been able to process the revised application within the 20 working days stipulated in the GIPA Act, or only marginally in excess of the 20 working days. He maintains that the estimate is unreliable and, in any event, is well within the University's processing capacity.
12. The Applicant submits that the 40 hour period referred to in Cianfrano should be regarded with caution because, as indicated in Colefax at paragraph [28], it was made in the context of the facts and evidence in that case, and should not be taken as establishing something in the nature of a 40-hour rule.
13. The Applicant accepts that he made a number of other GIPA applications to the University in 2017, several of which pertained to Dr Anderson. However, he submits that each was quite distinct and that the revised request cannot be characterised as a repeat application and it is not otherwise an abuse of process.

Discussion

1. The question of what constitutes an unreasonable and substantial diversion of an agency's resources is not in dispute. As noted above, the parties are in general agreement on the issue as I have outlined. I am satisfied that the steps taken by the University to assist the Applicant to narrow his request were reasonable. I also agree with the Applicant that his approach has been a reasonable one and that the information that he is seeking is of public interest.
2. The significant areas of disagreement are whether the estimate of 10-15 days processing time is reliable and whether dealing with the application would constitute an unreasonable and substantial diversion of the University's resources in accordance with section 60 of the GIPA Act.
3. Mr Macpherson's estimate of 10-15 days processing time is based on a trial that was undertaken on a sample of 25 emails identified as falling within the scope of an application that was in broader terms than the revised application. However, Mr Macpherson's estimate took account of the scope of the revised application. I note the Applicant's submission that the estimate is based on the assumption that each set of 25 emails will require the same level of consultation and consideration as those in the sample. I agree with the Applicant in that regard and I accept that it is probable that there would be some overlap between the third parties required for consultation. Some allowance needs to be made for that reduced level of consultation.
4. I also agree that some doubt attaches to the University's assertion that the consultation would be more protracted and time-consuming than usual because of the political sensitivity involved. However, to require the University to provide a more accurate estimate of processing time would necessarily require it to undertake a broader trial. This raises the question of whether that would be a reasonable requirement. In my view it would not be reasonable.
5. It is a matter for the University to determine what resources it makes available to process GIPA access applications. Whether or not the University is a large, well-endowed agency is not a relevant consideration in this matter.
6. I agree with the Applicant that the Cianfrano 40 hour reference should not be regarded as establishing a 40-hour rule. Each matter is to be considered on its own facts and an assessment is to be made in regard to whether the resources available to the agency are such that the time required to process the access application would constitute an unreasonable and substantial diversion of the agency's resources in accordance with section 60 of the GIPA Act.
7. In my view, the University has taken reasonable steps to form an estimate of the processing time that would be required. While I agree with the Applicant that Mr Macpherson's estimate is probably greater than the time that would actually be required to process the application, I accept that the actual time required would be well in excess of the 40 hours referred to by O'Connor DCJ in Cianfrano.
8. I am satisfied that even if allowance is made for the probability that the University's estimate of processing time may be excessive, the time required to process the access application would nevertheless constitute an unreasonable and substantial diversion of the agency's resources. That would remain the case unless the Applicant is able to narrow the scope of his request even further.
9. Mr Macpherson has already spent over 37 hours in dealing with the Applicant's access application and other officers have also spent time on the application. In my view it is not reasonable to require the University to process the access application in circumstances where it could take well in excess of a further 40 hours to undertake that task.
10. That being the case, it is my view that the University's decision should be affirmed.

Order 1. The University of Sydney's decision to refuse to deal with the Applicant's revised access application on the grounds that dealing with it would require an unreasonable and substantial diversion of the University's resources 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 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: 02 July 2018