The Applicant applied to the Department of Family and Community Services ("FACS" or "the Respondent") under the Government Information (Public Access) Act 2009 ("the GIPA Act") for access to information held by that agency. Her access application request was in the following terms:
ALL documents (be the document hard copy - paper, or document held on computer data base - in which case print a hard copy) generated by employees of the State of NSW Housing Office - be it under the name Department of Housing or Housing NSW or other (noting that government departments apparently enjoy wasting taxpayer funds changing names - thus all forms and correspondence header paper) - from 1 January 1986 to current (other than information subject of emails sent to and from the Applicant during 2015 - obviously, thanks to technology, I have copies of that information) of which the Applicant (and/or the child - minor - of whom the Applicant was the Parental Legal Guardian - by birthing and Court Order) is SUBJECT.
She clarified her request as follows:
The information will include - but not be restricted to:
1. Second application for public housing (that Housing NSW declared to be the first application - then on 16 July 2015 declared to be a non-existent application) dated 16 January 1987 and/or with Applicant's address noted as Bates Avenue, Paddington.
2. All other applications for public housing and/or Priority public housing.
3. The names and job titles of every Housing public servant involved in the Applicant's housing application "history".
4. Copies of medical certificates and reports lodged with Housing (Respondent) by the Applicant.
5. Records of all interaction between Housing employees and the Applicant in 2002 - including applications for reinstatement of tenancy and/or Priority Housing; allocation of "emergency" and/or "temporary" housing.
6. Records of all interaction between Housing employees and the Applicant 2004.
7. Records of all monies spent on provision of "emergency" or "temporary" accommodation - address of the accommodation; dates; name and job title of public servants who made the allocation; cost of the accommodation (billed to the taxpayer).
8. Documents citing the Reasons that the Respondent (Housing) "declined" to reinstate tenancy and/or list the Applicant on the Priority Housing list.
9. Records of "meetings" (taxpayer funded chats) of which the Applicant is subject - including involving employees of the Department of Children's Services and "Mental Health" in the private life of the Applicant (as those to agencies are now part of FACS - this information request is within the scope of Housing/FACS).
9. Basically - the entire file; plus information hidden away off the file of which the Applicant is the Subject.
PLEASE NOTE:
This is a basic information request lodged by the SUBJECT of the information against the HOUSING department - i.e. an agency that is not even entitled to have secret (exempt) "internal working documents".
Section 57 of the GIPA Act provides that an agency must decide an access application and give the applicant notice of the agency's decision within 20 working days after the agency receives the application. The Respondent failed to determine the application within the prescribed time. Pursuant to section 63 of the GIPA Act, the Respondent is deemed to have decided to refuse to deal with the application.
Section 80(c) of the GIPA Act provides that a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), is a reviewable decision. The Applicant applied to the Tribunal for external review in relation to the deemed refusal.
The matter was listed for a planning meeting conducted by the Tribunal. Following that Planning Meeting the Respondent conducted a search of the housing tenancy file held in relation to the Applicant and identified approximately 2500 pages/folios as falling within the scope of the request. Mr Bazzo, the Respondent's Right to information Officer, estimated that it would take approximately 139 hours to decide the application.
In accordance with section 60(4) of the GIPA Act, Mr Bazzo wrote to the Applicant and provided her with an opportunity to reduce the scope of her request. In response to Mr Bazzo's letter the Applicant advised that she refused to amend the application. Mr Bazzo then determined the access application.
In his determination Mr Bazzo stated:
[A]s you have refused to reduce the scope of your request, my decision is that the time and work involved in processing your request would unreasonably and substantially divert this agency's resources away from delivering its core business to its clients and stakeholders most in need. I further advise that in accordance with Sections 58(1)(e) and 60(1)(a) of the GIPA Act 2009, I have decided to refuse to continue processing your application.
The Applicant maintained her application for external review of the Respondent's determination.
[2]
Applicable legislation
The objects of the GIPA Act as set out in section 3(1) are to advance the system of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
The term "government information" is given a wide meaning by section 4, being defined as "information contained in a record held by an agency". The GIPA Act's focus is on "information", rather than the narrower concept of "documents". "Agency" is also defined in section 4 and includes "(a) a Government Department". It is not disputed that the Respondent is such a department and therefore an agency to which the legislation applies.
The GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure: section 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: section 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: sections 11 and 14.
With respect to government information not covered by overriding secrecy laws, the GIPA Act establishes a principle that there is a public interest in favour of disclosure: section 12(1). The category of public interest considerations in favour of disclosure is not limited: section 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.
There can be an overriding public interest against disclosure only when the public interest test in section 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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".
In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by section 15, which provides that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
Pursuant to section 60(1) of the GIPA Act an agency may refuse to deal with an access application in certain situations. Section 60(1) provides:
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,
(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,
…
[3]
The issue for determination
The issue for determination by the Tribunal is whether or not the decision to refuse to continue to deal with the application is the correct and preferable one.
[4]
The material before the Tribunal
The Applicant relies on her own evidence. The Respondent relies on two statements provided by Mr Bazzo. Each of the parties has provided written submissions.
[5]
Mr Bazzo's evidence
Mr Bazzo is an officer in the Respondent's Right to Information Unit ("the RTI Unit"). The RTI Unit is located within the Respondent's Legal Services Branch. Mr Bazzo's responsibilities include assessing access applications and preparing notices of decision under the GIPA Act.
He gave evidence in regard to the resources that the Respondent has available to deal with GIPA Applications. His evidence is that:
The RTI Unit is staffed by ten people. There are eight officers determining GIPA applications and working on other matters.
In the 2014/15 financial year FACS received 739 access applications.
Many access applications received by FACS relate to child protection or tenancies, the former of which are particularly complex and consume the bulk of the RTI Unit's time in processing GIPA applications.
A notable portion of the RTI Unit's work concerns formal and informal requests for information relating to child sexual abuse, particularly historical information, arising from the current political climate and Royal Commission.
The vast majority of the Respondent's records are stored in a management system known as TRIM. TRIM is designed to alleviate the need for paper filing systems. Records pre-dating 2009 have been 'back-scanned' into TRIM from the previous paper file, and filed accordingly.
In relation to tenancy records, every person has a unique identifying T-number. TRIM can be searched by this number which will identify all records attributed to that person. Alternatively, it is possible to search the system by means of different criteria such as a name, title words and more.
In his determination Mr Bazzo estimated the time that the Respondent would need to take to process the access application to be at least 139 hours. This comprised:
Description of functions required to be performed by the Right to Information Unit (RIU) Approximate amount of time required
Download, print and folio approximately 2500 pages/folios from the Departments electronic records management system (TRIM) that fall within the scope of your request 4 hours
Read, analyse and determine the disclosure of the subject information in accordance with section 58(1) of the GIPA Act (It is estimated that each page/folio would take approximately 3 minutes to read and analyse) 125 hours
Where applicable, conduct and prepare subject information for consultation in accordance with section 54 of the GIPA Act, in regards to third party information and consider the responses to the consultation requests affected third parties (The RTI Unit are unable to provide an estimate of time required to conduct relevant consultations until such time that the approximate total of 2500 pages/folios have been properly assessed) Unable to estimate hours at this point in time
Prepare a written schedule of information and a legal notice of decision in accordance with section 126 of the GIPA Act 10 hours
Total 139 hours
[6]
In his statement Mr Bazzo explained that the estimate of 139 hours is based on information he identified arising from a search of the Applicant's T-number on TRIM and that the ultimate processing time would exceed 139 hours as a result of a number of factors:
It is likely that there will be additional time required if there is a need to engage in consultation with third parties as required under section 54 of the GIPA Act. It is not possible to estimate how much time this will take without reviewing the documents.
Some additional time would be required in applying any necessary redactions to the information.
Further searches may need to be carried out in relation to any previous names that the Applicant had used to ensure they had not been assigned a different T-number.
Additional searches of TRIM may be required due to interpreting the Applicant's request more broadly beyond just the T-number. Searches may be required under the Applicant's name(s) or other identifying details. As the Applicant does not identify herself by a first and last name, a search of TRIM using only 'Morgan' would likely yield a large amount of results which would require extensive work in order to distinguish between relevant and irrelevant documents.
Mr Bazzo subsequently explained that in 2004 the Applicant had made a similar request under the Freedom of Information Act 1989 ("the FOI Act"). About 1000 documents were provided at that time and they were from the same source. Accordingly, the Respondent is not required to provide those documents again: section 60(b1) of the GIPA Act. He said that as a result the number of documents in issue is reduced to around 1500 pages and the time required to process the application would be reduced to around 80 hours.
Nevertheless, the Respondent still maintains that dealing with the application would require an unreasonable and substantial diversion of its resources. Mr Bazzo explained that third party consultation may be necessary in regard to information from sources such as psychologist, police and NGO's and information that concerns third parties.
Mr Bazzo disagreed with the Applicant's view that the time estimates are excessive. He agreed that he did not need to analyse documents other than to the extent that it is necessary to read the documents to know what information would be being disclosed. He identified examples of the types of information that would need to be considered such as information received in confidence from other agencies or emails that relate to other clients. He agreed that consultation has not been undertaken yet.
Mr Bazzo also disputed the Applicant's assertion that the Respondent's records do not show that the Applicant had used different names in her dealings with the Respondent. He made references to variations on her name that she has used.
[7]
The Applicant's evidence
The Applicant provided evidence in regard to her circumstances and her motivation in seeking the requested information. Essentially she is seeking access to her own file. She alleges that there are errors in documents that she has been given and maintains that she has a right to her own information and to have errors corrected.
The Applicant's challenged some of Mr Bazzo's evidence however, the majority of her evidence concerns conduct of various officers of the Respondent and takes issue with decisions relating to her request for public housing. It addresses public interest considerations in favour of release of the information and to that extent is not relevant to the issue for determination in this matter.
[8]
Discussion
The information that the Applicant has request from the Respondent is information "of which the Applicant (and/or the child - minor - of whom the Applicant was the Parental Legal Guardian - by birthing and Court Order) is subject". It is probable that much of this information this will be her personal information.
An individual seeking their personal information from a public sector agency has the choice of applying under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") or under the GIPA Act. In this matter the Applicant has requested the information under the GIPA Act.
In Colefax v Department of Education and Communities No 2 [2013] NSWADT 130, Judicial Member Molony explained that one significant difference in the approaches taken under the GIPA Act and the PPIP Act. He stated at paragraphs [42] - [43]:
42. Given that the information Ms Colefax seeks is her personal information, whether or not the 135 hours plus required to meet her access request requires an unreasonable and substantial diversion of the Agency's resources within the meaning of s 60 is problematical. If Ms Colefax had applied for access to this personal information under s 14 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act), then the Agency would not be able to refuse access on the basis that the request would require an unreasonable and substantial diversion of the agency's resources. On the other hand the Agency would have longer to process the request, and may be able to exclude some of the information to which the GIPA Act applies due to the differences in the definition of personal information between the two Acts.
43. While the PPIP Act does not affect the operation of the GIPA Act, the fact agencies are unable to refuse to deal with requests for personal information under the PPIP Act on the basis of an unreasonable and substantial diversion of resources, points to the importance of the distinction between applications seeking access to government information that includes their personal information, and those seeking access to other government information. That distinction in my view, is a relevant factor when deciding whether or not an access request is unreasonable.
As noted above, the Respondent determined to refuse to deal with the access application on the basis that to do so would require an unreasonable and substantial diversion of the agency's resources.
In Cianfrano v Premier's Department [2006] NSWADT 137 at paragraphs [62] - [63] O'Connor DCJ identified considerations relevant to the assessment of that would represent an unreasonable and substantial diversion of resources for the purposes of the FOI Act. He stated:
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' (see Rowlands P in [Re Borthwick and University of Melbourne (1985) 1 VAR 33] at 35)
(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 (see further Rowlands P in Re Borthwick)
(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 (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)
(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.
In Colefax v Department of Education and Communities (NSW) No 2, 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.
The Respondent has determined to refuse to deal with the application on the basis that it was estimated that it would take approximately 139 hours to decide the application. This estimate has now been revised to approximately 80 hours however the agency contends that the decision is still warranted because dealing with the application would require an unreasonable and substantial diversion of the agency's resources.
I have taken the Applicant's arguments into account. I also note that she has declined to reduce her request. In the circumstances I accept Mr Bazzo's evidence in regard to the scope of the work that would need to be done to process the application. I am satisfied that while the original estimate of the time to deal with the Applicant's application was made in good faith, it was a significant overstatement of what is required. Nevertheless, I am satisfied that while the revised estimate is reasonable. This estimate is well beyond the 40 hours referred to in the Cianfrano v Premier's Department decision. In the circumstances I am also satisfied that the Respondent's determination to refuse to deal with the application was a reasonable one.
I note that the Applicant contends that she is seeking her own information. It is probable that a large part of the information that falls within the scope of her request would be personal information as defined by the GIPA Act or the PPIP Act. If she had made this request under the PPIP Act, to the extent that the request concerned personal information, the Agency would not be able to refuse access on the basis that the request would require an unreasonable and substantial diversion of the agency's resources. Nevertheless, section 60(1) of the GIPA Act applies in the circumstances of this access application and, in my view, the correct and preferable decision is to affirm the Respondent's determination to refuse to deal with the application.
[9]
Orders
1. The decision 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: 21 June 2016