Nicholson v Sydney Children's Hospital Network

Relevant legislation

1. Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and: (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. Section 5 of the GIPA Act provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
3. Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications), unless there is an overriding public interest against disclosure of the information.
4. Section 12 provides, for public interest considerations in favour of disclosure.
5. Sections 13 and 14 provide: 13 Public interest test 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. 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). Table … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, … (f) expose a person to a risk of harm or of serious harassment or serious intimidation
6. Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information.
7. Section 53 provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake 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. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
8. Section 58 provides: (1) An agency decides an access application for government information by-- (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note : These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
9. A decision made under s 58(1)(b) of the GIPA Act is a "reviewable decision": s 80(e) of the GIPA Act. Section 100(1) of that Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of that decision. The burden of establishing that a reviewable decision is justified lies on the agency: s 105(1) of the GIPA Act.
10. In determining an application made under s 100(1) of the GIPA Act, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it: s 63(1) of the Administrative Decisions Review Act. In determining that application, the Tribunal may affirm or vary the reviewable decision, or set aside that decision and make another decision in substitution, or remit the matter for reconsideration by the administrator: s 63(3) of the Administrative Decisions Review Act.

The hearing

1. The following evidence was relied upon by each party.

Applicant

• Application filed 24 June 2020 (A1)
• Policy and Procedure - Grading and Regrading Policy (A2)

Respondent

• Affidavit of Jane Jennings 5 November 2020 (R1)
• Bundle of Appendix 1 to 11 annexed to the Respondent's written submissions (R2)

1. Each party filed written submissions and supplemented those orally during the hearing.
2. The hearing took place by way of telephone. No witness was called to be cross-examined.

Reasonable searches

1. A relevant discussion concerning reasonable searches under the GIPA Act was discussed by Principal Member Britton in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173, which I adopt: [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 exists 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.
2. I address these matters below.

Consideration

1. I deal with each of the six documents which the Applicant seeks a reviewable decision to be made concerning whether reasonable searches have been undertaken by the Respondent.

Grading Application Form for People and Culture Business Partner two FTE Positions

1. The Applicant submits that an application form (annexed at Tab A) of her submissions, is required to be completed which informs the Grading Committee on the grading of all new positions. She refers to section 7 of the Respondent's Grading, Regrading and Reclassification Policy (A2) referring to: 'The SCHN GRRC considers and makes decision on the grading of new positions. When the position has been graded, this does not guarantee the creation of the position. The final approval to create a new position (and classification/grading) rests with the SCHN Chief Executive.'
2. The Applicant goes on to set out the process in which a new position is created following the grading application form being completed as set out in the Respondent's Grading, Regrading and Reclassification Policy. Reference is made to section 11.1 appointments, contracts and regarding (Tab C of the Applicant's submissions) which outlines that the Chief Executive is the only delegation in the organisation who is able to 'approve the creation or deletion of a position or declare the employee excess to requirement.'
3. The Applicant submits that the Respondent has an obligation under the State Records Act 1998 to retain all records regarding the recruitment process for a minimum of 5 years.
4. Ms Jennings sets out the arrangements which were undertaken in responding to the Applicant's requested access to the grading application form. She deposes that new position grading application forms for services positions are normally saved within the Workforce Services Network drive as part of the Grading Committee file. She says that if a form was created, it could easily be located by undertaking a search of the drive.
5. Ms Jennings requested and was informed by Mr Ian Fuller, that Workforce Services staff after searching the Workforce Services Network drive for these forms, were unable to locate any form in answer to the access application.
6. Ms Jennings was informed by Ms Sharon Bau 'that a new Position Grading Application Form was not completed with respect to the People and Business Partner position. A direct approval had been provided by the former Chief Executive to progress to recruitment. New positions are able to be considered by the Grading Regrading and Reclassification Committee without this form where approved by Chief Executive.'
7. In the Respondent's initial decision of 26 May 2020, a copy of the Chief Executive's email giving approval referred to above was disclosed to the Applicant.
8. I accept that the Respondent has undertaken reasonable searches in an attempt to find the information sought by the Applicant in the form of the Grading Application Form for People and Business Partner positions. Ms Jennings has been informed by Ms Bau that the relevant form was not completed due to the approval being given by the Chief Executive for this position in the email from the then Chief Executive of the Respondent, Mr Michael Brydon (10 April 2019) for 'two time HM3 People and Workforce Business Partners (2 year FTC).'
9. I note and have taken into consideration the 10 April 2019 email also includes the following: 'No further brief is required as you can use this email as confirmation in TRIM. Please proceed to recruit to the remaining 2.5 FTE on term contracts as specified immediately.'
10. I am satisfied that Ms Jennings having access to the document management system 'TRIM' was able to, and did, undertake searches of that system for the purpose of identifying information in response to the access application. I also accept the other document management systems identified at paragraph 7 of Ms Jennings' Affidavit which include staff link, SCHN recruitment and onboarding system, Microsoft Outlook and the workforce network files (K drive) were searched by her to locate information sought in response to the access application.
11. I have taken into consideration the relevant requests for searches of these systems and the request of the two directorates within the Respondent, being the Workforce Directorate and the Finance and Corporate Service Directorate, to undertake searches for information as sought in the access application. The searches and the search terms in my mind are reasonable.
12. In so finding, I have considered the matters set out in sections 53(1) to (5) of the GIPA Act and I find that the Respondent has undertaken reasonable searches to find the information sought in the access application.
13. Whilst I accept the Applicant's argument that the non-completion of a grading application form for People and Culture Business Partners may not be in compliance with the relevant policy annexed at Exhibit (A2), the Respondent has proved on the balance of probabilities that the form does not exist because the then Chief Executive approved the relevant position and did not require any further brief.
14. In making these findings I am satisfied that the correct and preferable decision is to affirm the decision of the Respondent that the requested information is not held by the agency.

SCHN stafflink position creation requisition form for two FTE People and Culture Business Partner positions

1. The Applicant submits that this form is one which informs the Grading Committee of the grading of all new positions. The Applicant asserts that at no point in the Respondent's Grading, Regrading and Reclassification Policy does it allow the Chief Executive to directly approve a newly created position without this information, inclusive of a financial review. In that regard she refers to section 7 of that Policy at Exhibit (A2).
2. The Respondent also makes a similar submission in relation to the obligation of the Respondent to retain such records in accordance with the State Records Act 1998 for a minimum of 5 years.
3. Ms Jennings deposes that the usual practice of the Respondent, if such a form was created, is that it would be saved in the K drive and could be easily located by searching that drive.
4. However, due to the direct authority of the then Chief Executive approving the position in his email of 10 April 2019, a position creation request form was not completed in this case.
5. I accept both the Applicant and the Respondent's evidence that a position creation request form is normally created by the manager of the position, and sent to the Respondent's workforce services for processing. However, I make similar findings to those as set out above with respect to the grading application form. I am satisfied that reasonable searches have been undertaken by the Respondent and particularly the searches to locate such a document in the K drive. I am also satisfied and find that the Respondent has on the balance of probabilities proved that the relevant form was not completed due to the then Chief Executive's approval of the subject position.
6. I have considered the submissions of the Applicant in so far as the usual policy and practice of the Respondent would have been to complete the subject form. However, given my findings in relation to the procedure undertaken and despite it being outside of policy, I accept Ms Jennings' evidence that the approval was given by the Chief Executive to create the position in his email dated 10 April 2019. I affirm the decision of the Respondent.
7. In making these findings I am satisfied that the correct and preferable decision is to affirm the decision of the Respondent that the requested information is not held by the agency.

Financial review documents (emails, briefs) of the People and Culture Business Partner positions indicating financial source

1. The Applicant contends that the Respondent has not provided any evidence in relation to which vacant positions approximately $500,000 was made available for the two FTE People and Culture Business Partner positions. Nor has it provided any documentation regarding the financial information supporting the recruitment of the two positions, which the Applicant contends is required of the Respondent prior to the Chief Executive approving the positions. In that regard reference is made to section 7 of the Respondent's Grading, Regrading and Reclassification Policy: 'STEP 1 • Documentation (e.g. brief) from the Department Manager/Clinical Program Director indicating support of the request and indicating the funding source. Creation of new position requires approval of Tier 2 Director and the Chief Executive.'
2. The Applicant also relies upon the Respondent's obligation under the State Records Act to keep the records for a minimum of 5 years.
3. Ms Jennings deposes that if a brief, as referred to by the Applicant, exists it would have been saved in TRIM. The document would have referred to the People and Business Culture Partner (or shortened version) positions in its title. Ms Jennings says she has undertaken various searches of TRIM using variations of the words as set out in paragraph 13 of her Affidavit. Those searches include the words ('people', 'culture', 'business', 'partner', 'brief', 'Nicholson', 'funding', '696700', '696701'). Despite undertaking these searches, no information in accordance with the access application was located by Ms Jennings.
4. Further, Ms Jennings deposes that Mr Fuller and Ms Bau said that 'A brief was not prepared with respect to the People and Culture Business Partner positions in this case, as they already had direct approval from the Chief Executive'. I accept this evidence.
5. I am satisfied having considered the matters set out in s53(1) to (5) of the GIPA Act that reasonable searches as identified by Ms Jennings have been undertaken in relation to locating information sought in the access application.
6. I am further satisfied having considered the email of the then Chief Executive Mr Brydon of 10 April 2019 that, on the balance of probabilities, no brief was indeed compiled despite the matters referred to by the Applicant in terms of the Respondent's Grading, Regrading and Reclassification Policy.
7. Further, I am satisfied that Ms Jennings has set out the usual practice of the Respondent with respect to any brief which if compiled usually being 'run through the finance directorate for review as part of the process of its progression'. Ms Jennings requested that Ms Salkeld of that directorate undertake further searches in relation to finance related information concerning such a review, including email searches. No information was identified as a result of those searches in answer to the access application.
8. Ms Jennings was informed that the two positions were 'unfunded'. She deposes that this means there is no separate budgetary allocation for these roles. As such, it is reasonable to expect there are not any documents regarding funding sources for the positions to be located. I accepted this uncontested evidence and I find that the Respondent has proved, on the balance of probabilities, that it does not hold the information.
9. In making these findings I am satisfied that the correct and preferable decision is to affirm the decision of the Respondent that the requested information is not held by the agency.

Approval documentation from the Tier 2 Director and Chief Executive for the recruitment of two People and Culture Business Partners

1. The Applicant submits that the Respondent's Grading, Regarding and Reclassification Policy, grading of a new position process flowchart, indicates a brief with the Chief Executive approval, including financial information, needs to be provided.
2. Further, it is contended that the Respondent must keep records under the State Records Act for a minimum of 5 years.
3. Ms Jennings deposes at paragraph 45 of her Affidavit that any approval documentation would be saved in TRIM. Despite her undertaking searches of TRIM on multiple occasions, and using the search terms as set out in paragraph 50 above, information falling within the access application was not located.
4. Ms Jennings also confirms that she has been advised by Ms Bau that a brief was not completed in this case, due to the 10 April 2019 email of the then Chief Executive.
5. After considering section 53 of the GIPA Act, I am satisfied that reasonable searches for the same reasons as I have recited above have been completed by the Respondent. I am also satisfied that the Respondent has proved on the balance of probabilities that the requested information is not held by the agency.
6. The correct and preferable decision is to affirm the decision of the Respondent.

Approval to fill (ATF) for People and Culture Business Partners positions endorsed by Tier 2 Finance and the Chief Executive

1. The Applicant submits that the Respondent has disclosed an 'approval to fill form' that does not contain any financial details as outlined in the financial details, financial figures available, cost centre amount section contained in that document. The Applicant also repeats the requirement of the Respondent to maintain its records under the Records Act for a minimum of 5 years.
2. Ms Jennings deposes at paragraph 51 of her Affidavit the relevant form was filled out within the Respondent's recruitment and onboarding system ("ROB"). At paragraph 7 of her Affidavit at (c.) she describes the 'ROB' system as being 'used to initiate and manage recruitment of positions/staff to NSW Health. ROB contains information from the initiation of an approval to recruit to a position, through to the advertising and the recruitment process, including position descriptions details of advertisements, applications submitted, and information relating to the outcomes of a recruitment process. The Workforce Directorate can access all information relating to recruitment processes that the Directorate is managing or has managed.'
3. Ms Jennings says that she has been informed that once the approval to fill form is approved within ROB, the system automatically creates a requisition. All of the information submitted in the approval to fill form process becomes part of the requisition information.
4. Ms Jennings said that the forms relating to position numbers 696700 and 696701 were provided to the Applicant in the initial decision of the Respondent on 19 May 2020. It is Ms Jennings' evidence that the information provided reflected the information that was provided in the approval to fill form when initiating the recruitment process within the system.
5. Ms Jennings deposes that the Respondent is unable to print or reproduce the initial approval to fill form from ROB, once it has progressed beyond the approval stage.
6. I am satisfied that the Respondent has undertaken reasonable searches to locate information sought in the access request having considered section 53 of the GIPA Act. In this regard the approval to fill form has been produced and provided to the Applicant. I note the Applicant's view that the information concerning financial details is not included in the approval to fill form.
7. I accept Ms Jennings' explanation as to the process that the Respondent undertakes in relation to the approval to fill form and the ROB system. I am satisfied and I find that on the balance of probabilities the information sought in the access application is not held by the agency.
8. It would appear to me that certain fields within the approval to fill form have not been completed. Given my finding that reasonable searches have been made to locate that information, it is not for the Tribunal to go behind the accuracy or inadequacies of the form being filled out correctly.
9. For these reasons the correct and preferable decision is to affirm the decision of the Respondent.

Clarification regarding 'Grading briefing paper' and 'Memo from the Grading Committee to Workforce'

1. The Applicant acknowledges that the Respondent has provided redacted minutes of the Grading, Regrading and Reclassification Committee Meeting on 23 May 2019. She says that through her employment with the Respondent she had the opportunity to review multiple grading briefing papers.
2. The information provided to the Applicant has been redacted, and the Applicant submits it would be unclear to the Tribunal that each grading that is discussed at the Committee has a 'TRIM reference number', under which holds all records relevant to the grading, finances and approval of the position prior to being discussed at the committee.
3. The Applicant says it is a concern that the two People and Culture Business Partners positions discussed at this committee do not have a TRIM reference number where all relevant documentation and supporting papers should be kept for State record compliance. In addition, the Applicant submits that such records should be kept in accordance with the State Records Act.
4. The Respondent submits that there the fact that there is no TRIM reference regarding the positions is not something that goes to the nature of adequacy of searches. This is a matter of record keeping but does not suggest there is additional information held and not provided. Further, the Respondent says that the absence of a TRIM record is consistent with no information being held.
5. In that regard there is no reasonable basis upon which the Tribunal could make a finding that there is further information held by the agency that further searches could detect.
6. It is evident to me that the searches of the Respondent adequately detected the information already disclosed to the Applicant in relation to her access application concerning the 23 May 2019 meeting. I accept the Respondent's submissions that this matter does not go to the adequacy of a search. I find that in accordance with section 53 of the GIPA Act reasonable searches have been conducted. The Respondent has proved on the balance of probabilities that the information held by it has been disclosed to the Applicant. I am not satisfied that the correct and preferable decision should be something other than the decision already made by the Respondent. In that respect the Respondent's decision is affirmed.

Conclusions

1. For the reasons set out above I affirm the decision of the Respondent made 26 May 2020. Otherwise, the application is dismissed.

Orders 1. The decision of the Sydney Children's Hospital Network made 26 May 2020 is affirmed. 2. Otherwise, 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: 07 April 2021