Mino v Legal Aid NSW

The issues to be decided

1. The following issues remain for determination: Does the Respondent hold other information that falls within the scope of the access application that has not been located or provided to the Applicant? Has the Respondent provided all information that it holds that falls within the scope of the access application? Does the Tribunal have jurisdiction to review the Respondent's decision in relation to the inclusion (or otherwise) of this matter on the disclosure log?

The decision that the information is not held by the agency

1. The Respondent relies on the evidence of its Acting Executive Director Strategic Policy and Planning, Ms Erin Gough. Ms Gough provided a statement in these proceedings and set out the steps that she had taken to locate information that fell within the scope of the Applicant's request.
2. Ms Gough stated that the Respondent has two electronic filing systems that contain records of client files. The systems are known as ATLAS and CASES. She described the two systems as follows: CASES is the electronic record management system used primarily by the in-house practice to record client information in litigation matters. For in-house matters, client files may be partly electronic and partly paper files. ATLAS is the electronic record management system used to record all client matters which are the subject of a grant of legal aid. Both systems were established in or around 2009 and contain all records of client files. The Applicant's request was for files from 2012 and therefore they should be located in those management systems.
3. Ms Gough stated that she conducted a search of those two systems. She set out the process that she undertook in conducting the searches. As a result of the searches several file references were located. The contents of those files have been provided to the Applicant via his nominated representative.
4. Ms Gough stated that the Applicant has been provided with a copy of all relevant Legal Aid NSW files which relate to his Local Court criminal law proceedings.
5. The Applicant contends that the Respondent should hold other information that has not been located or provided to him. He explained why he believed that the information should exist and he undertook to attempt to locate other material that supported his contention. However, he has not filed any further material in that regard.
6. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (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.
7. The decision in Shepherd has been followed in a number of decisions of this Tribunal in matters under the now repealed Freedom of Information Act 1989 ("the FOI Act") and under the GIPA Act. See, for example, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, which reviews a number of the authorities on the point and the discussion in BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156.
8. In Beesley v Commissioner of Police [2002] NSWADT 52, the Tribunal described its role: To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate custodians of agency documents. All that the Tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them: at [19].
9. While that decision concerned the FOI Act, the comments are equally applicable to the Tribunal's role in relation to the GIPA Act. Thus, the Tribunal must form a view as to whether or not there may be some further records relevant to the application and, if so, whether the effort that the Respondent made to find them was sufficient.
10. The first question therefore, is whether there are reasonable grounds for believing that there are additional documents. The Tribunal need not first be satisfied that the searches conducted have been inadequate, as that would not be consistent with the Shepherd approach. There is, however, "some overlap in consideration of the two limbs of Shepherd, such that the overall consideration may appear somewhat circuitous": McCabe v Workers' Compensation Commission [2012] NSWADT 30 at paragraph [40].
11. While the Applicant has raised concerns about the adequacy of the searches, he has not suggested other searches that might have revealed the information.
12. On the basis of the information that I have been given, it seems unlikely that the record that is sought in item 1 of the access application was ever created. Therefore, there would not appear to be reasonable grounds for believing that the Respondent would hold additional records that fall within the scope of the access application.
13. The question then arises as to whether the respondent's search efforts have been reasonable in all the circumstances of the case. In Miriani v Commissioner of Police, New South Wales Police Force [2005] NSWADT 187 at paragraph [30], the Tribunal's President considered the key factors in assessing whether a sufficient search had been carried out. There he said that those factors included the manner in which the agency's record-keeping system is organized and the ability to locate any documents that are the subject of the request by reference to the identifiers supplied by the applicant or those that can reasonably be inferred by the agency from any other information supplied by the applicant. What constitutes a sufficient search will vary with the circumstances of the case. The onus of showing that the search efforts made were reasonable in all the circumstances of the case is on the Respondent.
14. In Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 at paragraph [63], the President said: The sufficiency of search standard is simply whether `reasonable' searches have occurred.
15. Miriani and Patsalis were also decisions under the FOI Act but I consider that the comments are equally applicable to proceedings in relation to the GIPA Act. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its record-keeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate. As I noted in Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80 at paragraph [51], the question is whether further searches would locate other documents. In that case there was no evidence that the documents sought could not be located by the searches that had been undertaken.
16. In this matter, on the basis of Ms Gough's evidence, it is my view that the searches that were undertaken were reasonable, sufficient and adequate. I accept that the Respondent does not hold the information requested in item 1 of the access application and therefore the decision should be affirmed.
17. For completeness, I note that section 75 of the GIPA Act provides: 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following: (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.
18. The Applicant has requested that the Respondent provide him with several items of information. If the information is not held, the agency is not prevented from creating a new record. However, the Tribunal does not have jurisdiction to require the Respondent to create a new record.

Has the Respondent provided all information that it holds that falls within the scope of items 2 and 3 of the access application?

1. Section 58(1)(c) of the GIPA Act provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (c) deciding that the information is already available to the applicant (see section 59), or ... Note : These decisions are reviewable under Part 5.
2. Section 59 of the GIPA Act provides: 59 Decision that information already available to applicant (1) An agency can decide that information is already available to an applicant only if the information is: (a) made publicly available by the agency or some other agency in accordance with a legislative instrument other than this Act, whether or not availability of the information is by inspection only and whether or not availability is subject to a charge, or ... (2) An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate how the information can be accessed by the applicant.
3. As noted above, Ms Gough stated that the information that was located and identified as falling within the scope of items 2 and 3 of the access application has been provided to the Applicant's nominated representative. This evidence was not challenged in any way.
4. On the basis of Ms Gough's evidence I am satisfied that the Respondent has provided the Applicant with a copy of all the information that it holds that falls within the scope of items 2 and 3 of the access application. Pursuant to Section 59(2) of the GIPA Act the Respondent is not required to provide the Applicant with another copy of the information.

The Tribunal's jurisdiction in relation to the inclusion of a matter on the disclosure log

1. Section 25 of the GIPA Act requires an agency to keep a record (a disclosure log) that records information about formal GIPA Act applications that it receives. The disclosure log sets out information that is released under the GIPA Act that the agency considers may be of interest to other members of the public.
2. Section 26 of the GIPA Act requires: 26 Required information about access applications (1) The information about an access application that is required to be recorded in an agency's disclosure log is as follows: (a) the date the application was decided, (b) a description of the information to which access was provided in response to the application, (c) a statement as to whether any of the information is now available from the agency to other members of the public and (if it is) how it can be accessed. (2) No details are required to be recorded in the agency's disclosure log: (a) if no objection is made under section 56 to the inclusion of information in the log before the access application is decided - until the application is decided, or (b) if an objection is made under section 56 to the inclusion of information in the log before the access application is decided - until the agency is entitled under that section to include the information in the log. Note : See section 56 (5) and (6) as to when an agency is entitled to include information in its disclosure log following an objection under that section. (3) An agency is not required to include in its disclosure log information about any application: (a) for personal information about the applicant (the applicant being an individual) or any other individual, or (b) in respect of which any factors particular to the applicant were otherwise a consideration in the agency's determination of the public interest in connection with the disclosure of the information to the applicant.
3. The Respondent maintains a disclosure log on its website. The Applicant requested that the entire contents of his access application and released information be placed on the disclosure log. However, the Respondent made the decision not to disclose the information on its disclosure log.
4. As noted above, the Applicant has sought review of that decision. The Respondent contends that the Tribunal has no jurisdiction to determine this aspect of the Applicant's application.
5. The Tribunal has jurisdiction to review a decision of an agency as set out in section 80 of the GIPA Act. Section 80(m) provides: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are "reviewable decisions" for the purposes of this Part: … (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
6. The GIPA Act is silent on whether the Tribunal has jurisdiction to review an agency's decision not to include information in its disclosure log. The Respondent submits therefore that the decision not to include information in its disclosure log is not a reviewable decision and therefore the Tribunal does not have jurisdiction to review the Respondent's decision.
7. I agree with that view.
8. Section 28 of the Civil And Administrative Tribunal Act 2013 ("the Tribunal Act") provides: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction: (a) the general jurisdiction of the Tribunal, (b) the administrative review jurisdiction of the Tribunal, (c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction), (d) the enforcement jurisdiction of the Tribunal. (3) Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal.
9. Section 30 of the Tribunal Act provides: 30 Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has "administrative review jurisdiction" over a decision of an administrator. Note : See section 9 of the Administrative Decisions Review Act 1997 . (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note : See section 7 of the Administrative Decisions Review Act 1997 . (4) An "administrator" , in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note : See section 8 of the Administrative Decisions Review Act 1997 . (5) An "administrative review decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction. (6) An "administrative review application" is an application made to the Tribunal for an administrative review decision.
10. Section 9 of the Administrative Decisions Review Act 1997 provides: 9 When administrative review jurisdiction is conferred (1) The Tribunal has "administrative review jurisdiction" over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. (2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. (3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the administrator by reference to the holding of a particular office or appointment-a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (4) If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by: (a) the person for the time being holding or performing the duties of that office or appointment, or (b) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists-such person as the President (or another person authorised by the President) specifies. (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
11. There does not appear to be any provision that permits an application to be made to the Tribunal for review of an agency's decision not to include information in its disclosure log. It follows, in my view, that the Tribunal does not have jurisdiction to review that aspect of the Respondent's decision.

Orders

1. The decision that the document is not held by the Respondent in respect of item 1 of the access application is affirmed.
2. The decision that the Respondent has provided the Applicant with a copy of all the information that it holds that falls within the scope of items 2 and 3 of the access application is affirmed. The Respondent is not required to provide the Applicant with another copy of the information.
3. The application for review of the Respondent's decision not to include the Applicant's information in its disclosure log is dismissed for want of jurisdiction. 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: 24 November 2015