McClymont v Department of Family and Community Services

Amendment of respondent's name

1. The applicant named the New South Wales Land and Housing Corporation as the respondent in these proceedings.
2. Clause 6(1) of Sch 4 to the GIPA Act provides that the regulations may declare that a specified agency is not to be regarded as a separate agency and instead is to be regarded for the purposes of the GIPA Act as part of and included in another specified agency. Clause 12 of the Government Information (Public Access) Regulation 2009 ("GIPA Regulation") provides that, for the purposes of cl 6 of Sch 4 to the GIPA Act, each agency referred to in Schedule 3 to the Regulation is declared not to be a separate agency but is taken to be part of and included in the agency specified in that Schedule in respect of it. Pursuant to Schedule 3 to the GIPA Regulation, the New South Wales Land and Housing Corporation ("LAHC") is taken to be part of the Department of Family and Community Services.
3. For these reasons, the correct respondent to the proceedings is the Department of Family and Community Services. The parties now accept that this is the case.
4. I order that the name of the respondent be amended accordingly.

Relevant legislative provisions

1. The object of the GIPA Act is to "is to open government information to the public" in stated ways "[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" (GIPA Act, s 3(1)).
2. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (GIPA Act, s 5).
3. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
4. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).
5. Subsections 14(1) and (2) of the GIPA Act provide: "14 Public interest considerations against disclosure (1) 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. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information."
6. An agency's obligation to conduct searches for information sought by an applicant is dealt with in s 53 of the GIPA Act. Section 53(1) and (2) provide: "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."
7. A decision to refuse to provide access to information is a reviewable decision, as is a decision that government information is not held by the agency (GIPA Act, s 80(d) and (e)).
8. The applicant is a person aggrieved by the respondent's decision who is entitled to apply to the Tribunal: GIPA Act, s 100, Administrative Decisions Review Act 1997 (NSW), s 9, NCAT Act, s 30(1). The Tribunal's function is to decide what the correct and preferable decision is having regard to the material before it: Administrative Decisions Review Act, s 63(1).
9. The burden of establishing that its decision is justified lies on the respondent: GIPA Act, s 105(1).

Does the Tribunal have jurisdiction to review the agency's decision that it does not hold additional information?

1. The applicant disputes the respondent's position that the only information it holds, meeting the description in his access application, is that identified in its original and supplementary determinations. The applicant contends that the respondent in fact holds more information than this because its searches for information were insufficient. He says that there are reasonable grounds to believe that there are further documents relevant to the access application in existence and that the respondent has not used its best endeavours to locate them.
2. The respondent focused in its original submissions on its obligation to conduct searches under s 53 of the GIPA Act. It referred to the two-stage approach to the question of whether an agency has conducted an adequate search for government information which was adopted by the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. That approach is to consider: 1. Whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and, if so, 2. Whether the search efforts made by the agency to locate such documents have been reasonable in all of the circumstances of a particular case.
3. This test has been applied in many decisions of the Administrative Decisions Tribunal and this Tribunal, such as Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5 at [11] to [12] and BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 at [27] to [28]. It was applied by the Administrative Decisions Tribunal in relation to applications made under the former Freedom of Information Act 1989 (NSW) until the Court of Appeal held that the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24 of that Act (and therefore not reviewable) (see Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140). The legislature addressed this issue, in the GIPA Act, by the inclusion of ss 58(1)(b) and 80(e), which make clear that a decision that an agency does not hold information is reviewable.
4. Notwithstanding that the Tribunal now has jurisdiction to review a decision that an agency does not hold information, it does not have jurisdiction to review an alleged failure by an agency to comply with the obligation under s 53(2) of the GIPA Act to conduct reasonable searches.
5. In this case, the agency has not included in its original notice of decision any explicit decision that it does not hold information. The notice of decision identified certain information and provided the agency's decisions to grant and refuse access to subsets of that information.
6. After the hearing, the Tribunal wrote to the parties, inviting submissions on the question of whether the word "decision" in ss 58(1)(b) and 80(e) of the GIPA Act includes an implicit decision. The word "decision" is not defined in the GIPA Act. It is arguable that s 80 and Division 4 of Part 4 of the GIPA Act uses the words "decision" and "deciding" to refer to explicit decisions made by an agency in response to a GIPA application. The requirement to provide reasons for a "decision" to refuse to provide access to information, in s 61 of the GIPA Act (within Division 4), might suggest that an implicit decision (including an implicit decision that an agency does not hold information) is not a "decision" for the purposes of that division. It is also possible that the alleged failure to identify or locate sufficient information in response to an access application is not a decision at all (implicit or otherwise), at least in circumstances where the agency has identified some information which is responsive to the application and assumes that it does not hold anything else.
7. The respondent submitted that the Tribunal has power to review an implicit decision that an agency does not hold information and that one of the decisions the subject of review was the implicit decision that the respondent did not hold information in relation to paragraph 11 of the access application. Paragraph 11 sought documents relating to charges by FACS to residents to recover costs for works carried out by contractors at a specified property.
8. The applicant submitted that, in the supplementary determination, the respondent made an explicit decision that it did not hold information. The supplementary decision explicitly provides that the decision-maker is satisfied that the agency "does not hold any further documents" relevant to the part of the applicant's application seeking documents relating to charges by FACS to residents to recover costs of work of a tenancy private nature carried out by FACS contractors on residents' and/or common properties at the relevant property in 2014 or 2015.
9. In circumstances where the agency has made an explicit decision that it does not hold information, the question of whether the Tribunal has jurisdiction to review an implicit decision that it does not hold information does not arise. I am satisfied that the Tribunal has jurisdiction to review the agency's decision that it does not hold information under ss 80(e) and 100 of the GIPA Act.

Review of the decision that the agency does not hold information

1. The Tribunal's task to consider whether the correct and preferable decision is that the agency does not hold information responsive to an access application, other than that it has identified. It is relevant, when undertaking this task, to consider that the agency's obligation is only to conduct reasonable searches and to consider the extent and effectiveness of those searches. Nevertheless, if the Tribunal is persuaded that the agency does hold information it has not identified, the correct and preferable decision will not be that the agency does not hold that information, irrespective of whether its searches were reasonable.
2. The applicant relied upon the following to support his contention that the respondent held further information: 1. The documents were not produced by the respondent in an easy to follow sequential order; they were in fact disordered; 2. The disordered provision of documents created confusion; 3. Some of the documents were produced twice, some documents were produced which were not requested, and some pages were missing; 4. The way in which the documents were produced made it appear that more responsive documents were produced than was the case (due to duplication and the production of documents which had not been requested).
3. In supplementary submissions, the applicant criticised the process undertaken to locate documents for the purposes of the supplementary determination. He said that, contrary to the respondent's claim, no relevant documents were identified in the supplementary searches conducted. He submitted that some of the documents identified in the supplementary determination had been identified earlier but had been withheld; one "was a flagrant duplication and re-presentation of an Original Decision document", some were not responsive to the access application and three pages "were created internally as spreadsheets for two documents [and?] were allegedly fabricated and could not be the product of a search".
4. In support of its contention that it did not hold any further information, the respondent relied upon the evidence of two staff members, Anke Gibbons and Maria Reid. Ms Gibbons has been a "GIPA officer" for LAHC since 30 June 2016 and Ms Reid is a legal officer who has been in the legal team of the Department of Family and Community Services since April 2016. Prior to that, Ms Reid was employed as a legal officer in the LAHC legal team.
5. Mr Reid's evidence was that she reviewed the electronic TRIM file and requested documents relevant to the applicant's access application for the executive officer of LAHC Assets. She made the original decision in the matter in April 2016. Under cross examination, Ms Reid gave evidence that Alberto Marino in the Assets team did the original searches in the HOMES database and provided the results of the searches to her.
6. Ms Gibbons gave evidence that she took primary carriage of the applicant's GIPA application from 30 June 2016. She said she reviewed LAHC Legal's TRIM file and found a schedule identifying additional information relevant to the applicant's access application. During October and November 2016, she then conducted searches of LAHC's records to locate further information captured by the access application. She conducted an electronic search of TRIM by keyword searches including the street name and number of the property, the street and suburb names, and "property assessment survey" followed by the street name. She then reviewed the documents located to determine whether they were captured by the application and additional to those already provided.
7. In addition to conducting the electronic search of TRIM, Ms Gibbons conducted an electronic search of a database called "HOMES". This is an electronic system which records details of all properties owned by LAHC. It includes details of repairs and maintenance carried out at tenanted properties.
8. Ms Gibbons also consulted with LAHC's assets team and finance team, including the Property and Information Unit which is part of the finance team, asking them to provide any relevant information that they hold in their systems. Ms Gibbons did not have access to those systems to conduct a search. She asked for all documents relating to requests for and payments related to maintenance and repairs undertaken at the property address and for documents relating to particular maintenance issues which had arisen at that property. She was provided with a list which was said to be a list of all works carried out at the property during the relevant period.
9. Ms Gibbons then prepared a supplementary notice of decision dated 15 November 2016.
10. Ms Gibbons accepted, during cross examination, that she had not personally conducted all of the searches, but had relied upon the Property and Information Unit to conduct some of them and report back to her. She also conceded that matters in the right to information unit were "in disarray" prior to annual reporting and that she invited the Information and Privacy Commission to assist them with this, around September 2016. She said that she was trying to get some structure around GIPA matters which were not effectively managed before then.
11. The applicant submitted that, in Morgan v Department of Family & Community Services [2016] NSWCATAD 125 at [20], an officer of the respondent's right to information unit estimated that it would take four hours to download and print 2500 pages. He said that he had only been given 132 documents, even though the estimate of time taken to process his request was 43 hours. The applicant submitted that this indicated that the search had not been carried out effectively.
12. The applicant also made the following submissions in support of the proposition that the respondent held information, captured by his application, which it had not yet identified: 1. In its first decision, the respondent only identified 80 documents out of 132 which were relevant. This process took 16 months. 2. Some of the searches were conducted by persons or a person who did not give evidence at the Tribunal. The persons who conducted searches in the Assets team and finance team did not provide statements or affidavits setting out what they had done to locate the information. 3. A search cannot be adequate if it only produces a meagre amount of documents, as was the case here.
13. As indicated above, the applicant addressed this issue further in supplementary submissions. The Tribunal invited supplementary submissions on specific issues it had raised, and did not invite further submissions on the question of whether the respondent "holds" the relevant information. The Tribunal has read the applicant's supplementary submissions concerning the question of whether the respondent holds information but takes into account that the respondent has not had an opportunity to respond to these submissions, and that the submissions contain factual assertions in the nature of evidence. The Tribunal has not had regard to any additional factual material contained in the applicant's supplementary submissions which was not before the Tribunal at the hearing.
14. The circumstance that the documents were presented in a disordered fashion, and that some documents were produced twice, even if accepted, does not logically lead to the conclusion that further information exists and has not been located by the respondent. The Tribunal notes the concession that the respondent's right to information unit had matters which were "in disarray" prior to September 2016 and that access applications were not effectively managed before then. However, the Tribunal is satisfied, from Ms Gibbons' evidence, that any deficiencies in the searches conducted before the original determination were remedied by the time of the supplementary determination (whether or not more information was in fact located).
15. The Tribunal is concerned, to some extent, about the issue raised by the applicant, being that there is no affidavit as to the searches carried out in the Property and Information Unit or by the Assets Team. Ideally, an agency should provide affidavit evidence from each person who carried out a relevant search. However, Ms Gibbons gave evidence that she had been in communication with other teams, checking on the searches that were conducted and asking specifically for documents relating to certain topics. She also gave evidence of having spent a significant amount of time on the searching. I am satisfied, from this evidence, that the searches were conducted appropriately and that there is nothing to suggest that the respondent holds any information other than that it has identified.
16. It is not correct, as the applicant submits, that a search cannot be adequate if it only produces a meagre amount of documents. Where an agency only has a limited amount of information meeting the terms of an access application, no amount of searching will produce more than that amount of information. For this reason, the applicant's reliance upon Morgan v Department of Family & Community Services [2016] NSWCATAD 125 is misplaced.
17. The applicant's objection that some pages "were created internally as spreadsheets for two documents [and?] were allegedly fabricated and could not be the product of a search" does not lead me to conclude that the respondent holds information that it has not identified. It is legitimate for an agency provide access to information by creating a new record (GIPA Act, s 75). I do not accept the applicant's submission that the information in the spreadsheets was "fabricated."
18. Ms Gibbons explained that the reasons why there were not more documents meeting paragraph 11 of the access application is that contractors are not required to submit hard copy invoices for certain works but rather lodge payment claims through an electronic system. I accept that explanation.
19. For these reasons, the correct and preferable decision is that the only information held by the respondent, which is responsive to the applicant's access application, is that already identified in the original and supplementary determinations.

Review of the decision to refuse to provide access to some information

1. In my invitation to the parties to make supplementary submissions, I noted that the applicant did not seek access to personal information. I then asked the parties to clarify whether my review of the decision to refuse access to information was now limited to that contained in two spreadsheets concerning maintenance and repairs at the respondent's properties.
2. The respondent indicated that it understood the issues to include the respondent's decision to refuse access to certain commercial information, which it identified in a schedule. This information extended beyond the documents contained in the spreadsheets to information in three further documents, referred to below.
3. The applicant indicated that he did not consider the spreadsheets to be responsive to the access application. He also argued that they were falsified. He concluded by stating: "The applicant did not seek disclosure of the monetary amounts contained in those irrelevant documents by way of review of the Respondent's decision to not fully release those internally created records - Schedules P and Q spreadsheets."
4. The Tribunal is satisfied, from the applicant's submissions, that he is not seeking access to the information in the spreadsheets.
5. The other documents identified by the respondent containing information which it redacted on the basis of cl 4(c) and (d) of the table to the GIPA Act are "Ref A: Work order details unit 23", "Ref F 47-52: HOMES detail report - Unit 23" and "Ref F 34-41: HOMES detail report - Unit 24." In his submissions the applicant said that the two HOMES detail reports did not meet the terms of the access application as they related to the wrong time period. The other document, "Ref A: Work order details unit 23", is also outside the time period identified in the application and he did not press for it.
6. Accordingly, I conclude that the applicant does not now seek access to any of the information to which access was denied by the respondent.

Other matters

1. The applicant raised a number of concerns about the way the respondent dealt with his access application and the way it conducted the proceedings. He objected to the inclusion of a created document by the respondent, after the time for adducing evidence had closed and said it attempted to mislead the Tribunal. He also argued, as indicated above, that the respondent had fabricated one document.
2. The "created document" to which the applicant refers was in the nature of an aide memoire and was not in evidence. The Tribunal does not accept that the respondent intended to mislead it by providing this document. Nor does the Tribunal accept that the respondent fabricated any documents.

Orders

1. For the reasons given above, the Tribunal makes the following orders, pursuant to s 63 of the Administrative Decisions Review Act: 1. The name of the respondent is changed from "NSW Land and Housing Corporation" to "Department of Family and Community Services". 2. The administratively reviewable decisions made by the respondent on 6 April 2016 and 17 November 2016 are 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: 22 June 2017