Miriani v Transport for NSW

Should the application be determined without a hearing?

1. Section 50 (2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. In this case Transport for NSW has indicated its agreement to the application being determined on the papers. Mr Miriani, despite being given an extended opportunity to do so, has not expressed a view. Having reviewed all the materials I am satisfied that this is matter that can be determined in the absence of the parties, by considering the materials lodged by them. I therefore dispense with a hearing.

Procedural history.

1. In an access application dated 1 March 2020 Mr Miriani sought certain information from Transport for New South Wales. At point 1 under the heading 'Use of Outdated Personal Information' he requested: 1. information relating to or referring to the inclusion of the name that the applicant was given at birth as identifying personal information used by the Department in the exercise of its statutory functions, which is making the electronic verification of his drivers licence currently impossible, including the following: (a) documents, electronic and handwritten records relating to how the set outdated personal information came to be used again by the Department. (b) …
2. On 1 April 2020 Transport for NSW made a decision in which it found that the DRIVES Customer Name History was the only information in its possession with respect to point 1. It decided to release that in full to Mr Miriani.
3. Being dissatisfied with that result, Mr Miriani filed an application to externally review the decision with the Tribunal on 1 June 2020, stating that the information provided was not relevant to his request, and noting that the agency was required to undertake reasonable searches.
4. The review application was listed for directions on 14 July 2020, when the Tribunal extended time for Mr Miriani, who attended by phone, to make his review application. It also listed the matter for mediation on 6 August 2020 and then for further directions on 11 August 2020. The order included the following note: Notes. 1. By application made on 4 March 2020, the applicant sought access to information concerning the inclusion of his birth name in the respondent's records, 'which is making the electronic verification of the validity of his driver licence currently impossible' since his release from custody about 6 months ago. 2. By decision made on I April 2020, the respondent identified certain information responding to the application and granted access in full. 3. Applicant alleges that respondent has more information than disclosed in its decision; in respect of paragraph (1) of his access application. 4. Respondent says proceedings commenced I day out of time on I June 2020. Extension of time is not opposed. 5. Respondent suggests that any practical difficulty can be resolved by applicant approaching Service NSW, by lodging all necessary documents with them to achieve name change. 6. Respondent says that documents lodged by applicant in or about 1999 have been destroyed. Applicant does not seek access to his deed poll.
5. Following the mediation, Transport for NSW says a "further/more specific" search was conducted for: [A]ny correspondence from NSW Police to TfNSW relating to the inclusion of the name that the applicant was given at birth, including but not limited to, available documents including emails, letters, faxes and written records from 1 January 2018 to 1 June 2020. Should there be documents available from NSW Police to TfNSW any return correspondence on the topic to be also disclosed.
6. In accordance with an agreement reached by the parties at mediation, neither party attended the directions hearing on 11 August 2020 and the matter was adjourned to 25 August 2020,
7. On 21 August 2020 Transport for NSW advised Mr Miriani that the further/ more specific search had yielded no result.
8. On 25 August 2020, when Transport for NSW gave notice of the application to summarily dismiss Mr Miriani's review application under the GIPA Act, the Tribunal made directions as to the progress of that summary dismissal application. These required Transport for NSW to file its submissions and materials by 11 September 2020, with Mr Miriani having until 25 September 2020.
9. On 3 December 2020, a direction was made in chambers for the matter to be relisted on 8 December 2020, as a consequence of non-compliance with directions by Mr Miriani.
10. On 7 December 2020, Mr Miriani's application for an adjournment of the directions on 8 December 2020 was refused.
11. On 8 December 2020 Mr Miriani's time for making submissions on the summary dismissal application was extended until 22 December 2020, in accordance with a request from him made on 7 December 2020. As noted in paragraph 2 above, Mr Miriani was put on notice that no further extensions of time would be granted.

Consideration

1. Transport for NSW argues that Mr Miriani's application is lacking in substance and is therefore frivolous or misconceived: Worldwide Enterprises Proprietary Limited v Westpac Banking Corporation [2010] VCAT 1125. It refers to the initial request for information which suggests that difficulties with respect to Mr Miriani's birth name are making "the electronic verification or the validity of his driver licence currently impossible…" The submissions suggest that this is a problem he could rectify by attending Service NSW.
2. The submissions go on to argue that Mr Miriani's real concerns are with NSW Police, and that those concerns are unrelated to the proceedings. This, it is suggested, is a collateral ulterior purpose, and renders the review application vexatious: Attorney-General v Wentworth (1988) 14 NSWLR 481. In making that submission Transport for NSW, does not suggest what Mr Miriani's collateral purpose is, or how Mr Miriani is seeking to use his access application to achieve it.
3. In his access application Mr Miriani seeks information concerning why his birth name is included in Transport for NSW records. If information has been provided by NSW Police which explained or lead to that inclusion, it would fall within the scope of his request. Mr Miriani has not asked that such information be corrected in any manner by Transport for NSW.
4. There is a chain of authorities that follow the decision of the Court of Appeal in Crewdson v Central Sydney AHS [2002] NSWCA 345 that are concerned with applications under freedom of information and privacy legislation not being used for a collateral purpose. In Crewdson an application to correct or amend information under the Freedom of Information Act 1987 (NSW) (now repealed) was not allowed to be used to challenge a historical record, rewrite history, or as a mechanism to review a decision already made. In GA v, The University of Sydney (GD) [2010] NSWADTAP 31 the Appeal Panel wrote, at [24-25] - 24 The amendment rights given by Privacy and FOI applications belong to the practical world of administration in regulated agencies. Here the regulated agency is a major university and the dispute goes to records of fundamental importance, student admission and enrolment records. GA does not himself dispute the University's understanding of the process the University engaged in and the accuracy of its records insofar as they follow from and are based on that understanding. In our view, concessions of this kind must bring to an end any debate as to accuracy and completeness in the practical world of a regulated agency. 25 GA's essential case is that he should have been treated differently, and, insofar as he was not, the University's conduct was invalid and unlawful. We agree with observations of the Member below, drawing in turn on the following remarks of Handley JA in Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24]: 24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki [1986] USCA9 1380; 794 F. 2d 1373 (9th Circuit 1986), 1378.
5. This has since been followed in many cases of which VZ v University of Newcastle (No 2) [2012] NSWADT 167; ARC v Northern NSW Local Health District [2014] NSWCATAD 109; and ABA v Department of Human Services, Community Services [2012] NSWADT 117 are a few.
6. Transport for NSW has not articulated in its submissions how Mr Miriani seeks to use the current review application for a collateral purpose, or what that purpose is. Yet, it relies on the allegation that he is pursuing a collateral purpose to demonstrate that the review application is vexatious.
7. The Tribunal, when conducting reviews under the GIPA Act, is not generally concerned with the motivations of applicants seeking access to government information. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
8. The GIPA Act establishes a presumption in favour of disclosure of government information and does not require that access applicants disclose their motivations for seeking access to government information, or the uses to which they wish to put that information once obtained. Applicants for access to government information have a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws, it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14).
9. The Act also establishes a principle that there is public interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - "Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information : (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform he public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct."
10. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - "There is an overriding public interest against disclosure of government information for the purposes of this 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."
11. It is not unusual for applications to be made for access to government information in the hope of using that information to support of litigation against others, or to seek information to demonstrate maladministration, incompetence or corruption. Members of the public seeking access to government information are exercising the right to do so given to them by the GIPA Act. They are not required by the GIPA Act to explain their motivations.
12. I do not accept that Mr Miriani, by seeking access to information relating to difficulties concerning his birth name in Transport for NSW records, is pursuing concerns that somehow taint his review application. There is no evidence to demonstrate that he is seeking to achieve a collateral purpose (or of what that purpose is) so as to make his review application vexatious.
13. If one of his objects is to obtain correspondence concerning his name between the NSW Police and Transport for NSW, that should not be a concern of the agency or the Tribunal. That is information that he has a right to access under the GIPA Act. The issues will be whether such information is held and if so whether it should be released in the public interest.
14. I therefore reject Transport for NSW's submission with respect to the review application being vexatious as Mr Miriani has a collateral or ulterior purpose for making it.
15. In Choi v University of Technology Sydney [2019] NSWCATAD 176 I had occasion to consider an application under section 55(1)(b) of the CAT Act in review proceedings under the GIPA Act. Having reviewed the law with respect to the summary dismissal of proceedings for being frivolous, vexatious, misconceived or lacking in substance, I noted: 37. The words "frivolous, vexatious, misconceived or lacking in substance" are well recognised legal terms that can be found in a broad spectrum of statutes dealing with summary dismissal in a wide variety of forums. In each case, it is important that the legal and legislative context in which those proceedings arise be taken into consideration. … 40. Reviews under the GIPA Act are a good example of the nature of the proceedings, and applicable legislation, having a significant impact on whether proceedings are frivolous, misconceived or lacking in substance. This is so because the GIPA Act has among its objects the conferral on members of the public of a right to access government information; restricted only when there is an overriding public interest against disclosure: see s 3. In aid of that right s 105(1) of the GIPA Act provides: In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. 41. As a consequence, applications for summary dismissal based on an argument that review applications are without merit and destined to fail (and therefore frivolous, misconceived or lacking in substance) are unlikely to succeed, as the burden of justifying that the decision is correct lies with the respondent agency. Thus, the submission by UTS in this case that Ms Choi's attempt to review the not held decision (which it is now clear she is not pursuing) had "no prospect of success" because UTS "has already conducted reasonable searches" could not succeed. This is because the onus of proving that the searches were adequate falls on UTS.
16. In Mr Miriani's case, Transport for NSW asserts that it has made reasonable searches for the information he seeks and that he, "…bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists, which has not been supplied."
17. The submission says that Transport for NSW then bears the burden of demonstrating that the searches were reasonable in the circumstances: Zonneyvylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186.
18. Transport for NSW's submissions rely on a chain of authority for those propositions, commencing with Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 and including Miriani v Commissioner of Police, New South Wales Police Force [2005] NSWADT 187. The submission appears to invite a summary dismissal of the review application because: 15. In further support of the dismissal application, the respondent submits that various searches conducted of its records have been reasonable. And 16. …To date, the applicant has not provided any evidence in support of his claim that the searches conducted were not reasonable, nor is any apparent.
19. This is not a reason to which s 55(1)(b) of the CAT Act applies.
20. Further, in Wojciechowska v Commissioner of Police [2020] NSWCATAP 257 an Appeal Panel noted that chain of authority cited above by Transport for NSW had evolved under the repealed Freedom of Information Act 1989 (NSW). It has been followed in the Tribunal since the commencement of the GIPA Act. Principal Member Britton noted that the legislative scheme under the two Acts were materially different. She explained: 36 Section 53 of the GIPA Act imposes an obligation on an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). That obligation is limited to "information held by the agency when the [access] application is received": s 53(1). The search must be conducted "using the most efficient means reasonably available to the agency": s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources". 37 The question of whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches required to be undertaken to discharge the obligation under s 53. Where, for example, the likelihood of the requested information existing and being held by the agency is farfetched or fanciful, for example, NSW Health holding information about US President Donald Trump's Twitter account or evidence of alien life in Wagga Wagga, arguably no search could properly be characterised as being a "reasonable search … as may be necessary to find any of the government information applied for" and, therefore no obligation to search arises. Conversely, where it is reasonably likely that the requested information exists and is held by the agency, a cursory search said to be unable to find the requested information, is unlikely to satisfy the obligation imposed by s 53. 38 However, in my view, there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake "reasonable searches" is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that "there are reasonable grounds to believe that the requested information exists and is held by the agency". Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant's belief that the requested information exists and is held by the agency. Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency's "information is not held" is the correct and preferable decision. 39 While reluctant to depart from a long line of authority, I have concluded that in the context of an administrative review of an "information is not held" decision made under s 58(1)(b) of the GIPA Act, the application of the two-step test in Shepherd is plainly wrong. Applying that test requires the Tribunal to first determine whether there are "reasonable grounds to believe that the requested documents exist and are documents of the agency". If the Tribunal concludes that the answer to that question is no, the antecedent question of whether the "search efforts made by the agency to locate such documents have been reasonable" does not arise. In my view, that approach is at odds with s 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held, is justified. 40 In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal's power when reviewing an "information not held" decision, stating 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. 41 I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". I do not understand the Appeal Panel in Klaric to suggest otherwise. 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.
21. This analysis was subsequently accepted by a differently constituted Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [19-20] and followed by the Tribunal in cases such as Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286 and Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317. It represents the current status of the law with respect to who holds the burden of proof with respect to decisions that information is not held under the GIPA Act. I consider that I should follow it. It is contrary to the position advanced by Transport for NSW in submissions.
22. As a consequence, the submissions made by Transport for NSW with respect to Mr Miriani not being able to meet an initial burden of proof with respect to the existence of additional information responsive to his access request must fail. This is so as the authorities relied on by Transport for NSW are no longer good law. It is for Transport for NSW to demonstrate the correctness of its decision under section 105 of the GIPA Act.
23. Transport for NSW's reliance on the burden of proof argument in support of its application for summary dismissal is misconceived.
24. It follows from all of the above, that Transport for NSW have not persuaded me that Mr Miriani's review application is frivolous, vexatious, otherwise misconceived, or lacking in substance. Transport for NSW's application for summary dismissal cannot succeed.

Orders.

1. The Tribunal makes the following orders: 1. The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The respondent's application for summary dismissal of the applicant's review application under section 55(1)(b) is dismissed. 3. The applicant's review application is to be listed for further case conference at a date and time to be fixed by the Registrar. 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: 28 January 2021