The applicant made an access application under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") to the respondent for various species of information set out in a schedule to the access application.
Following a deemed refusal of the access application, the applicant filed an application for administrative review in the Tribunal.
In accordance with directions made by the Tribunal, the respondent provided a Notice of Decision ("Decision") in which it identified a series of documents in a Schedule of Documents containing information responsive to the access application and decided to grant access to all of those documents in their entirety.
The applicant's position is that the respondent has not provided him with access to all of the information within the scope of his access application.
For the reasons set out below, the decision under review is affirmed.
[2]
Jurisdiction and the Tribunal's role
The respondent did not expressly state that it decided, under s 58 (1)(b) of the GIPA Act, that it did not hold particular information, however it is implicit within the Decision that the respondent decided that it did not hold information responsive to that application other than that identified in the Schedule of Documents. This implied decision is reviewable by the Tribunal under s 80(e) of the GIPA Act: see CLT v Department of Education [2021] NSWCATAD 249 at [104]-[106] and the authorities there cited.
The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act").
The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 of the ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. A convenient summary of the Tribunal's role in conducting a review of a decision that information is not held by an agency is found in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [42]-[44]:
42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.
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.
44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:
(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.
[3]
Material before the Tribunal
The material before the Tribunal includes:
1. the application for review;
2. submissions from the applicant, with attached evidence; and
3. submissions from the respondent, with attached evidence.
The Tribunal notes that directions were made for the parties to file further evidence and submissions. However, no such further evidence or submissions were filed. In this regard, the applicant sought extensions of time based upon medical evidence, which the respondent opposed. The Tribunal has considered that application and it is rejected in circumstances where there has been a significant passage of time and the evidence relied upon is insufficient to support an extension of time of that length.
The applicant also sought a confidentiality order with respect to his medical evidence. The Tribunal declines to make such an order in circumstances where there is insufficient evidence to justify it. It is not necessary to refer to the detail of that evidence in these Reasons.
[4]
Is there further information held by the respondent?
The Decision included:
"You asked for the following information:
1. Summary of access application
...
1. File ID 19C038021 ext 2 - Information pertaining to the written warning given to the applicant by the Grants Division on 2 September 2019 including the following:
(a) documents, electronic and handwritten records kept in the case file, and elsewhere;
(b) internal and external correspondence (emails and letters);
(c) internal and external correspondence (memoranda and faxes);
(d) notes of meetings, phone calls or conversations;
(e) discussion notes, briefing papers and minutes.
2. File ID 19C038021 ext 2 - Information pertaining to the cancellation of the applicant's grant of legal aid on 6 September 2019, including the following:
(a) documents, electronic and handwritten records kept in the case file, and elsewhere;
(b) internal and external correspondence (emails and letters);
(c) internal and external correspondence (memoranda and faxes);
(d) notes of meetings, phone calls or conversations;
(e) discussion notes, briefing papers and minutes.
3. Ref L2-115 - Information pertaining to Monique Hitter's decision to limit the way in which the applicant gets access to services provided by Legal Aid, including the following:
(a) documents, electronic and handwritten records;
(b) internal and external correspondence (emails and letters);
(c) internal and external correspondence (memoranda and faxes);
(d) notes of meetings, phone calls or conversations;
(e) discussion notes, briefing papers and minutes.
4. A document containing the full name and position title of the person who made the decision in relation to the warning given to the applicant by the Grants Division on 2 September 2019.
5. A document containing the full name and position title of the person who made the decision in relation to the cancellation of the applicant's grant of legal aid on 6 September 2019.
6. Documents outlining every collaborative initiative, strategy and action plan for multi-agency risk assessment and management of which Legal Aid is a partner.
7. Current version or the most recent previous version of policies, guidelines, directives, rules, codes of practice and procedures governing the following:
(a) the exercise of any discretionary power, if it exists, to refuse consent for public disclosure of full name and non-personal contact details of individuals engaged in the exercise of public functions that affect or are likely to affect the rights, privileges or entitlements of members of the public;
(b) Legal Aid's public disclosure of full name and non-personal contact details of individuals engaged in the exercise of public functions that affect or are likely to affect the rights, privileges or entitlements of members of the public;
(c) Legal Aid's cross-agency interaction for any coordinated response which affect or is likely to affect the rights, privileges or entitlements of members of the public;
(d) interaction among Legal Aid's own business units and divisions for a coordinated response which affect or is likely to affect the rights, privileges or entitlements of members of the public.
...
3. Searches for Information
Under the GIPA Act, we must conduct reasonable searches for the government information you asked for in your application. I have searched our records to find any information that falls within the scope of your application.
I conducted the following searches:
• I searched File No 19C038021 in our electronic grants management system, ATLAS, for any records that come within items 1, 2, 4 and 5 of your access application.
• I searched File No L2-115 in our Complaints Management System for any records that come within item 3 of your access application.
• I emailed Monique Hitter, Deputy CEO, Mia Zahra, Manager CLC Program and Alice Stiles, Manager WDVCAP Unit, requesting any records that come within item 6 of your access application.
• I searched our intranet and internet websites for any records that come within item 7 of your access application.
The records found are listed in the attached Schedule of Documents with reference to the business centre holding the records.
The Tribunal has considered the submissions made by each of the applicant and the respondent. Those submissions raise the following matters relevant to the question whether the respondent may hold further information responsive to the access application.
The first is the applicant's submission that "there is evidence to suggest that the Agency 'concealed/tampered with information'". That submission is not supported by reference to any evidence and need not be considered further.
The second is the applicant's submission that "there is a possibility that [the decision-maker] did not have a full and clear understanding of the scope of my access application and was therefore unable to locate some of the documents I seek. However, it is evident that she knew or ought to have known that I was not given access to all the information to which I am entitled." Again that submission is not supported by reference to any evidence and need not be considered further.
The third relates to item 1 in the access application. On 2 September 2019, the respondent wrote to the applicant indicating that it was considering terminating the applicant's grant of legal aid "because of [the applicant's] failure to co-operate in the preparation and progress of [the applicant's] case by withdrawing instructions from [the applicant's] assigned practitioners".
The applicant submitted that the documents produced in response to item 1 do not contain information which "confirms or supports the allegations" made in the 2 September 2019 letter.
The Tribunal has examined the documents produced in answer to item 1 of the access application. Those documents relate to the reasons given by the respondent in that letter. It follows that the applicant's submission is rejected. Further, there is nothing on the face of those documents (or otherwise) to suggest that other information responsive to item 1 of the access application may be held by the respondent.
The fourth relates to item 2 of the access application, which concerns the cancellation of the applicant's grant of legal aid on 6 September 2019. That letter includes:
"Legal Aid NSW is terminating your grant of legal aid because of your failure to co-operate in the preparation and progress of your case.
Following is an explanation for the specific reasons why your grant of legal aid is being terminated.
Your matter was assigned from inhouse to Ms Fouadi Khahil at your specific request.
Ms Khalil's office then advised Legal Aid NSW that they were no longer prepared to act for you as you were not prepared to co-operate with them.
You asked specifically for your matter to be assigned to Mr Jonathan Jaramillo.
This was done and you were advised in writing on 2 September 2019 of a warning of termination pursuant to section 38 Legal Aid Commission Act 1979 if you failed to provide instructions to, and co-operate with, your new legal practitioner.
You have now asked for your matter to be re-assigned from Mr Jaramillo to Mr Alexander.
Mr Jaramillo has confirmed that you have limited the instructions that you will provide and have failed to co-operate including by dictating how your matter is to be run."
The applicant submitted that the documents produced in response to item 2 do not contain information which "confirms or supports the allegations made by [the respondent] in its letter of termination of my grant of legal aid".
The Tribunal is satisfied that the documents produced in response to item 2 contain information relating to the matters described in the letter. Thus, the applicant's submission is rejected. There is also nothing on the face of those documents (or otherwise) to suggest that other information responsive to item 2 of the access application may be held by the respondent.
The Tribunal has also considered the explanation provided in the Decision as to the searches that were undertaken by the respondent, the Schedule of Documents and the terms of the access application. Having done so, it is not apparent that there are any factual issues concerning the searches undertaken, or whether the respondent may hold further documents responsive to the access application, which require investigation.
For all of the above reasons, no factual issues requiring further enquiry arise, and the decision under review should be affirmed.
[5]
Orders
The Tribunal orders that:
1. The decision under review is affirmed.
[6]
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: 18 November 2021