Solicitors:
S Nandutu (Applicant in person)
University of Sydney Office of General Counsel (Respondent)
File Number(s): 1510558
[2]
Background
This matter concerns an application by Ms Nandutu ("the Applicant") for review of a determination by the University of Sydney ("the Respondent"). The Respondent's determination was in relation to two access applications brought by the Applicant under the Government Information (Public Access) Act 2009 ("the GIPA Act").
In her access application dated 26 May 2015 the Applicant sought:
Part A
"A copy of the email and attachments concerning me - Susan Nandutu sent by Ass/Prof Christopher Jordens sent to Dr Zakia Hossain on 4 July 2014 12:39
From: Christopher Jordens
Sent: Friday, 4 July 2014 12:39 PM
To: Zakia Hossain
Subject: RE: Possible supervision for Susan Nandutu
Attachments: Transcript of Academic record to 2010 Nandutu.pdf; NANDUTU Susan - APR 2011.pdf; NANDUTU Susan - Suspension 2012 Semester 2.pdf; NANDUTU Susan -APR2013.PDF'
Part B
"emails against me, sent out to a number of people by Ass/Prof Jake Lynch. He has done so since 2012.
I am noting below a few of the people Ass/Prof Jake Lynch sent his defamatory emails against me:
Associate Prof Anna Snyder (Canada) email: … Olufemi Oluniyi (Nigeria) email: … Prof Kodama Katsuya (Japan) email: …"
In her access application dated 24 June 2015 the Applicant sought:
"1. Copy of Email that I sent to Professor Simon Chapman on 14 June 2012.
From: …
To: …
Subject: Draft on approach
Date: Thu, 14 Jun 2012 15:07:48 +1030
…
2. Copies of emails written by Associate Professor Jake Lynch concerning me, and /or which make reference to me from 2012 up to now June 2015."
The Applicant was not satisfied with the Respondent's determination of those access applications and she applied to the Tribunal for external review. The matter first came before me for a planning meeting in November 2015 and a timetable was set for the progress of the matter. In December 2015, the application was remitted to the Respondent for redetermination pursuant to section 65 of the Administrative Decisions Review Act 1997.
The redetermination was completed in February 2016. A total of 568 pages of information were identified as a result of the searches that were undertaken in the determination process. However, much of this material was duplication and when the duplicates and out of scope material was removed, 167 pages of relevant information remained to be considered.
The Respondent's determination was to release to the Applicant all the information that it held that fell within the scope of the access applications. However, third party consultation was necessary in relation to some of the information. Therefore, that information was withheld to allow time for those persons who had objected to the release of the information to seek review, or until the period within which they might seek that review had expired.
The information which was not the subject of any objection was forwarded to the Applicant by email and, by Cloudstor (a secure online document delivery utility) on 18 February 2016. A copy of the information was also sent by Express Post.
The outstanding information, which the University had decided to release but which had been the subject of objection, was sent to the Applicant in April 2016. A copy of that information was also sent by Express Post.
[3]
Directions Hearing of 26 April 2016
On 26 April 2016, the parties attended a directions hearing before Deputy President Hennessy. The Deputy President dealt with this matter and two other applications ("the Privacy applications") that the Applicant had brought under the Privacy and Personal Information Protection Act 1998.
The Respondent requested that this matter be listed for a dismissal hearing on the basis that the Applicant had been given all the information that it held which fell within the scope of the access applications. The Deputy President directed that the Privacy applications be listed for jurisdictional hearing on 15 June 2016 and that this matter be listed for a dismissal hearing on that same date.
Section 55 of the Civil and Administrative Tribunal Act 2013 provides for dismissal of proceedings. Section 55 states:
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
[4]
Dismissal Hearing of 15 June 2016
The matter again came before me on 15 June 2016. On that occasion the Applicant insisted that she was unaware that the matter was listed for a dismissal hearing. She stated that she understood that the matter was listed for a directions hearing. She also asserted that the Respondent holds further information that is within the scope of her access applications but which the Respondent had not identified or disclosed.
The Respondent maintained that Deputy President Hennessy had ordered the matter to be listed for dismissal hearing without the necessity for the parties to file and serve submissions or other materials; that the Applicant ought reasonably have been aware of this, and that she could have contacted the Tribunal to confirm the position if necessary. The Respondent also maintained that it had disclosed all the information that it holds that is within the scope of the Applicant's access applications, and it had discharged its obligations to conduct reasonable searches for information within the scope of the access applications. The Respondent also submitted that if it had been given notice that the Applicant intended to raise the issue of reasonable searches, it would have been prepared to meet that submission with evidence on 15 June 2016.
At the conclusion of the hearing on 15 June 2016 I directed that the Registry obtain a recording of the 26 April 2016 Directions Hearing and that the parties be given a copy of that recording. I have listened to the recording of the 26 April 2016 Directions Hearing and I am satisfied that it is clear that Deputy President Hennessy ordered that this matter was to be listed for dismissal hearing on 15 June 2016.
I note that the Applicant has not yet accessed the copy of that recording that has been held for her at the Tribunal registry. However the Respondent has provided written submissions and it has included a transcript of the recording of the 26 April 2016 Directions Hearing in its submissions. Those submissions were filed on 5 July 2016 and Ms Tronson advised that a copy was provided to the Applicant.
I am satisfied that from about 5 July 2016 the Applicant ought to reasonably have been aware of the outcome of the 26 April 2016 Directions Hearing.
At the conclusion of the hearing on 15 June 2016 I also set a timetable for the parties to file further material in relation to the issue of the dismissal of this matter. Any further material on which the Respondent wished to rely was to be filed and served by 8 July 2016 and any further material on which the Applicant wished to rely was to be filed and served by 18 July 2016. The matter was listed for further hearing on 25 July 2016.
On 5 July 2016 the Respondent filed a statement of Timothy Robinson dated 4 July 2016 and written submissions in support of its application for dismissal.
The Applicant subsequently wrote to the Tribunal seeking to have the 25 July 2016 hearing vacated. She was directed to seek a response to her request from the Respondent and to provide that to the Tribunal along with evidence to support her request. She was also advised that the matter would remain listed for hearing until such time as the parties were advised not to attend the hearing.
The Respondent advised the Tribunal that it opposed the application to vacate the hearing.
The Applicant reiterated her request and provided an outline of her reasons for the request but did not provide any evidence in support of it. She did not respond to numerous requests from the Tribunal for that evidence. The hearing of 25 July 2016 was not vacated and proceeded as listed. The Applicant did not appear at the hearing.
The Applicant has not filed any material in relation to the application for dismissal. While she has asserted that the Respondent holds other information that is within the scope of her access applications, she has not provided any particulars or evidence of any such further information, or any credible material or submission that suggests that such information exists.
At the conclusion of the hearing on 25 July 2016 I indicated that the matter would be determined on the basis of the material that has been filed.
[5]
The Respondent's case
As noted above, the Respondent contends that it has undertaken reasonable searches to locate information that is within the scope of the Applicant's access applications.
While it submits that it is not necessary to address the issue of the adequacy of the searches that were undertaken, the Respondent relies on the statement of Mr Timothy Robinson dated 4 July 2016. Mr Robinson is the Respondent's Manager, Archives and Records Management Services. He stated that in his role he is responsible for, among other things:
a. processing applications for access to information held by the University under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), which includes:
i. communicating with the applicant;
ii. conducting searches for relevant information;
iii. advising the authorised decision maker (which is the University's Group Secretary, currently Mr Alex Maitland) in relation to the applications; and
b. providing the University with recordkeeping services in respect of current and archival records in accordance with the State Records Act 1998 (NSW).
He outlined the steps that were taken in relation to the Applicant's access applications. He stated:
Based on my knowledge of the University's information technology systems, including the way in which emails are stored, there are no other locations in which I would expect to locate emails sent by Associate Professor Lynch which would be reasonable to search, given the scope of Ms Nandutu's access applications.
Further, I consider that conducting a search using the search terms "Susan", "Nandutu" and "Susan Nandutu" in the period from 1 January 2012 to 20 June 2015 meant that the scope of the search was as wide as it could possibly be. I consider it highly unlikely that any emails which did not contain at least one of these search terms would contain information falling within the scope of Ms Nandutu's access applications. I have not been able to identify any other reasonable search criteria which would be likely to identify any other emails containing information falling within the scope of Ms Nandutu's access applications which would not have been identified using the search terms "Susan", "Nandutu" and "Susan Nandutu" in the period from 1 January 2012 to 20 June 2015.
The Respondent contends that, in accordance with section 53 of the GIPA Act, it has discharged its responsibility to conduct reasonable searches for all information held that is within the scope of the Applicant's access applications.
[6]
Discussion
As noted above, the recording of the Directions Hearing of 26 April 2016 shows that Deputy President Hennessy listed this matter for a dismissal hearing on 15 June 2016.
I am satisfied that the Respondent has provided the Applicant with its submissions and evidence. The Applicant therefore has had access to the Respondent's transcription of the recording of the Directions Hearing of 26 April 2016.
Notwithstanding that the matter was listed for dismissal hearing on 15 June 2016, the Applicant has been given an opportunity to provide material in support of her contention that the Respondent holds information that has not been identified as falling within the scope of her access applications. She has not done so nor has she provided any explanation for not doing so. She has not requested further time to provide additional material. In the circumstances it is my view that it is futile to pursue this issue any further.
I note Mr Robinson's evidence in regard to the steps that were taken to identify all the information that the Respondent holds that falls within the scope of the Applicant's access applications. In my view those steps are reasonable and the Respondent should not be required to undertake further steps in that regard.
I note that the Applicant expressed concern that while a total of 568 pages of information were identified she was not provided with all those documents. I am satisfied that the remainder of the documents were duplicates of those that she was given. The GIPA Act is concerned with information, not documents. I am satisfied that she has been given a copy of all the information that has been located as falling within the scope of her access applications.
It follows that there is nothing further that can be achieved through these proceedings and that what remains of the matter is lacking in substance. I agree with the Respondent that the matter should be dismissed.
[7]
Order
The application is dismissed.
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: 29 July 2016