Paul v Forestry Corporation of NSW

The Hearing

1. The matter was agreed to be determined on the papers without a hearing by consent.
2. Section 50 of the New South Wales Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, Or (d) in such other circumstances as may be prescribed by the procedural rules. (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. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
3. I am satisfied that the matter can be properly determined without a hearing in accordance with s. 50(2) of the NCAT Act.

The scope of the decision to be reviewed by the Tribunal

1. The respondent submits that the Fourth Revision was not provided pursuant to any statutory power or Tribunal order and was not requested by the respondent. Accordingly, the respondent submits that the Fourth Revision should not be considered in the course of these proceedings.
2. Should the applicant wish to seek any information other than the items referred to in the Third Revision, it is open for the applicant to submit a new access application in accordance with s. 41 of the GIPA Act.
3. S. 41 of the GIPA provides: (1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the "formal requirements" ) for access applications: (a) it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2), (b) it must clearly indicate that it is an access application made under this Act, (c) it must be accompanied by a fee of $30, (d) it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application, (e) it must include such information as is reasonably necessary to enable the government information applied for to be identified. Note : See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application. See also section 52 (3) concerning assistance to be afforded by an agency to an access applicant. (1A) If the applicant has applied at any time to another agency for substantially the same information, an application must also include the name of the other agency. However, failure to comply with this subsection does not affect the validity of an application. (2) An agency may approve additional facilities for the making of an access application or the payment of an application fee. (3) An access application is not considered to have been received by an agency until it is actually received by the agency.
4. I accept the respondent's submission that the revised scope which is the subject of the Tribunal's determination as to the correct and preferable decision is the Third Revision. It is the Third Revision which was devised by the applicant by order of this Tribunal made 14 January 2019. However, if I am wrong, for the reasons set out below, the Tribunal would have come to a similar decision concerning the Fourth Revision in any event.

Issues for determination

1. The relevant reviewable decisions in relation to the information requested concerning the Third Revision are: 1. In relation to item 1, the respondents decision of 12 December 2018 on item 1. 2. In relation to items 2 and 3, the respondents decision of 6 July 2018 (on items 5 and 11 in that decision).
2. The respondent submits that the Tribunal should determine the correct and preferable decision as being to refuse to deal with the Third Revision of the application as dealing with it would require an unreasonable and substantial diversion of the agency's resources pursuant to s. 61(a) of the GIPA Act.
3. The applicant disputes the reasons and justification of the respondent that the search would require an unreasonable and substantial diversion of the agency's resources as it is not supported by the facts and evidence before the Tribunal. He submits that the respondent admits that it has poorly managed information systems which requires a significant period of time to undertake a search. However, the applicant says this is not a reasonable matter to override his statutory right to access government information.

The legislative regime

1. Section 5 of the GIPA Act provides: "5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
2. Section 58 of the GIPA Act provides: 58 HOW APPLICATIONS ARE DECIDED (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.
3. Section 60 of the GIPA Act 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, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 , (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note : See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order, (e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is: (i) a party to current proceedings before a court, and (ii) able to apply to that court for the information. (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. (3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations: (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh: (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information: (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
4. Section 60(3A)(3B) of the GIPA Act commenced on 28 November 2018. These provisions, however, had not commenced at the time this application was determined and do not apply.
5. This Tribunal has jurisdiction to conduct a review of a reviewable decision made under s.100 of the GIPA Act.
6. In reviewing a decision of the respondent, the Tribunal may on application undertake an administrative review of that decision and determine the correct and preferable decision, having regard to any relevant factual material before it and any applicable written or unwritten law: s. 63 of the Administrative Decisions Review Act 1997 (the ADR Act).
7. When determining an application under s.63 of the ADR Act, the Tribunal may (see s.63(3)): (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
8. The time at which the Tribunal determines the correct and preferable decision is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247, at [55].

Section 60(1)(a) - Unreasonable and substantial diversion of an agency's resources

1. The respondent relies upon the provisions of s.60(1)(a) in refusing to provide the applicant the information requested. The applicant disputes the applicability of the section substantiating the refusal.
2. Section 60(1)(a) requires a decision-maker to be satisfied that an access application (or part thereof) requires both an unreasonable and a substantial diversion of agency resources before refusing to deal with it: Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130 (Colefax (No. 2)) at [20].
3. The Appeal Panel in considering the operation of s. 60 has stated that at its core it is aimed at ensuring the sensible and efficient deployment of an agency's resources: Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7 (Danis) at [43]. When considering a decision to refuse to deal with an access application under s. 60(1), the Tribunal should have regard to the role s. 60 plays in promoting the efficient administration of the GIPA Act and the evidence of wasteful deployment of resources: Danis at [49].
4. In Colefax (No. 2) at [24], the Tribunal confirmed the nine considerations identified by O'Conner DCJ in Cianfrano v Premier's Department [2006] NSWADT 137 (Cianfrano) at [63]: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; ... (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; ... (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 FOl 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 ... (g) whether beyond 40 hours' processing time, and to what degree [the Tribunal had before it evidence from the Agency's annual report 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 ... (h) degree of certainty that can be attached to estimate
5. Exercising the discretion under s. 60 involves an assessment of the resources that would be needed to deal with the application. It relates to the resources that are available to the respondent and the available resources are solely within the control of the respondent: Singh v Legal Aid Commission (No2) [2015] NSWCATAD 5 at [101] (Singh). An agency determines what resources it makes available to process an application under the GIPA Act: Loussikian v University of Sydney [2018] NSWCATAD 140 (Loussikian) at [50].
6. The time period that will amount to an unreasonable and substantial diversion of resources will depend on the facts and evidence of a particular case: Colefax at [28]; Loussikian at [51].
7. However, the following was said in Singh at [102]: The power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist an applicant in narrowing the request. Agencies should not rely on the power of refusal to process simply because their information management systems are poorly organised and documents take an unusually long time to identify and retrieve. It is one of the risks associated with the exercise of the section 60 discretion.

Section 60(3) - Applications are related and are made by persons acting in connection with the applicant

1. The respondent submits that the correct and preferable decision should consider an examination of s. 60(3), in so far as applications made by the applicant's brothers are related.
2. In Colefax v Department of Education and Communities (No 1) [2013] NSWADT 42 (Colefax (No. 1)) the Administrative Decisions Tribunal identified a number of factors that were relevant in determining whether two or more applications were related for the purposes of s. 60(3). Those factors, with which I agree, include:

• The time dealing with a similar request, and the time taken to already having considered the request at [26];
• The agency can consider previous applications that have been determined at [37];
• Whether or not access applications made by the same applicant are related is a question of degree, with the assessment to be made in the light of the circumstances of each case, having regard to the purposes of s 60(1)(a) and (3). That purpose is to prevent a drain on departmental resources created by voluminous requests, and to prevent the splitting of access applications into two or more, whether at the same time or not, in an attempt to avoid them being categorised as voluminous at [40];
• Taking a wide and broad-brush approach when determining that applications are related for the purposes of s 60(3) has the potential to frustrate the objects of the Act, especially given that previous applications may now be considered. It is not at all unusual for a person seeking government information to make a series of access applications, using information obtained in earlier requests to focus and inform later requests. One can foresee it being a relatively simple matter to so classify those requests, so that they can be characterised as related to the same subject matter, thereby frustrating the objects of the Act. This is to be contrasted with the situation where a voluminous request is split into more than one request in an effort to avoid s 60(1)(a) at [42].

1. In Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 (Zonnevylle), the tribunal considered whether separate applications made by a husband and wife could be related. The Tribunal held where persons are acting in concert and had similar, if not identical, interests in receiving the information, the applications are related for the purposes of s. 60(3) at [24, 27].

The evidence

1. The respondent relied on the evidence of Ms Joanna Bodley, the Manager Communications and Media with the respondent. Ms Bodley has sworn two affidavits 28 March 2019 and 20 June 2019.
2. Ms Bodley is responsible for processing and making decisions on behalf of the respondent under the GIPA Act. Ms Bodley's evidence sets out that the applicant and two of his brothers, Ian Paul and Michael Paul, own Baradine Sawmilling Co Pty Ltd ("Barradine"). A number of disputes arose in 2015 and 2018 between the respondent, the applicant and his brothers in relation to a contractual agreement between the respondent and Baradine. The dispute is ongoing.
3. Ms Bodley said on 22 November 2017, the respondent received an access application under the GIPA Act from the applicant. The request was assigned the reference number GIPA2017-09. The application sought eleven categories of access to information. As set out above, the scope of the request has been reduced to the Third Revision.
4. Ms Bodley said the respondent has received four access applications from the applicant's brothers since November 2017. She provided details of these applications. In her view the work involved in processing this applicants request was similar to the other requests which have been made of the respondent by the applicants brothers.
5. Ms Bodley sets out the work involved in processing an access application which is summarised as follows: 1. An allocated staff member will identify the teams and divisions who may hold the requested information. A request is made of the staff members to determine appropriate search terms. Once the search terms are identified, the allocated staff members searches for the information. 2. Once searches are complete, the documents identified are exported to a folder allocated for the access application. A review of the contents is made to determine whether it is responsive to the application. 3. It is estimated that it takes a staff member one minute per two page document to determine whether documents are responsive to the application. 4. An estimate of 5 minutes per document is made to compile a list of responsive documents which is listed in a schedule. 5. A further five minutes is estimated to be needed to determine if any public interest considerations against disclosure is necessary. 6. Any determination of legal professional privilege is also needed to be considered.
6. The respondent estimates that eleven minutes per document would be required to process the applicants access application. This estimate does not take into consideration the time spent searching and exporting documents, writing the decision and the time spent by other employees of the respondent who are asked to consult in relation to any public interest considerations against disclosure or legal professional privilege.

Item 1: copies of all emails dating from July 2016 to June 2018 between Forestry New South Wales and Santos Limited in relation to harvesting of the Pilliga Forest;

1. According to Ms Bodey, there are three staff members whose email inboxes may contain information relevant to this request. In March 2019, the respondent IT staff searched the inboxes (including outbox and all folders of outlook) of the three employees applying the date range. The results produces 2,659 results when using the keywork "Santos". An search using "Santos" and "Pilliga" produced 481 results.
2. Ms Bodey said that assuming 481 results are responsive to the access application, using an hourly rate of $74 per hour which she says is the salary of the lower grading of staff employed to process GIPA applications, the cost to the respondent is $6,512.

Item 2: copies of all emails dating from July 2016 to June 2018 between Andrew O'Brien and Conan Rossler that pertain to the operations of Baradine Sawmilling Co Pty Limited.

1. According to Ms Bodey, the respondents IT staff searched the inboxes (including outbox and all folders of outlook) of the two employees Andrew O'Brien and Conan Rossler applying the date range. The results of the searches using the keywork "Baradine" were 1,710 emails.
2. Ms Bodey said that assuming 1,710 results are responsive to the access application, using an hourly rate of $74 per hour which she says is the salary of the lower grading of staff employed to process GIPA applications, the cost to the respondent is $23,199.

Item3: copies of all emails dating from July 2016 to June 2018 between Andrew O'Brien and Dean Anderson that pertain to the operations of Baradine Sawmilling Co Pty Limited.

1. According to Ms Bodey, the respondents IT staff in March 2019, searched the inboxes (including outbox and all folders of outlook) of the two employees Andrew O'Brien and Dean Anderson applying the date range. The results of the searches using the keywork "Baradine" were 1,022 emails.
2. Ms Bodey said that assuming 1,022 results are responsive to the access application, using an hourly rate of $74 per hour which she says is the salary of the lower grading of staff employed to process GIPA applications, the cost to the respondent is $13,865.
3. In summary, Ms Bodey estimates a minimum of 588 hours of staff time would be utilised in processing the applicant's access application.
4. I accept the evidence of Ms Bodey that the appropriate search term "Baradine" was appropriate given the various ways in which Baradine Sawmilling, Baradine Sawmill, BS or Baradine Sawmilling Co Pty Ltd could have been referred to in correspondence held by the respondent.
5. I further accept other searches were conducted by Ms Bodey specifically using the exact terms "Baradine Sawmilling", "Baradine Sawmill" or "BS" which produced similar results to searches using "Baradine".

Fourth revision

1. Ms Bodey also provides an estimate of 527 hours required of the respondents staff to process the applicants Fourth Revision. However, for the reasons as set out above, this review is to determine the correct and preferable decision concerning the Third Revision. It is relevant to state that if indeed the Fourth Revision was the subject of this determination, I accept the evidence as set out by Ms Bodey in respect of 527 hours to deal with the Fourth Revision, the approximate cost to the respondent would amount to approximately $39,012 to process the access application.

Capacity of the respondent and its resources

1. Ms Bodey said the respondent employs around 500 employees. It has 1.6 staff who currently perform functions in response to GIPA requests. These staff members also have additional duties including facilitating Ministerial processes, support to Parliament, corporate and internal communications and liaising with media.
2. Ms Bodey deposes that the access application seeks correspondence between three of the respondents staff, Andrew O'Brien, Dean Anderson and Conan Rossler. Two of these staff are employed in senior positions.
3. Given the likely volume of emails identified in the search, Ms Bodey states that ongoing consultation with each of the three employees will take a substantial amount of time. She says this will result in significant salary costs for the respondent, which are in addition to the costs set out above.

Evidence of the applicant

1. The applicant said the application relates solely to Baradine Sawmilling Co Pty Ltd. He disputes that any of the information referred to by Ms Brody concerning legal professional privilege can be maintained. He said using only the search term "Baradine cannot be regarded as being accurate or reliable, representing an average number of relevant emails of 18."
2. He refers to the respondent having stated in its annual report that it generated total revenue of $384 million in 2018 and processed 11 GIPA applications. He notes that the respondents website refers to two employees who are involved in its communication and media department which department deals with GIPA applications.
3. The applicant contends that the search terms used by the respondent have been deliberately made as wide as possible to generate a "huge number of emails and to thereby justify a decision to not provide the information sought". I do not agree for the reasons set out below. He goes on to criticise the methodology for the conduct of the search that has been used.
4. The applicant stated that Ms Bodley's evidence suggested that the respondent was in breach of its obligations under the State Records Act 1998 by not having a best practice records management system.
5. He disputed the relevance of his family members or Baradine to the application.

Whether the application requires an unreasonable and substantial diversion of the agency's resources

1. The respondent has relied upon the law which is set out above at paragraphs [21-37]. I generally agree with the submissions made in this regard. The respondent referred to and relied upon the decision of Danis by referring to the deployment of its resources in responding to the applicants access application with which I also agree.
2. I accept and agree with the respondents submissions concerning it having the discretion to determine what resources it makes available to process an access application (see Loussikian).
3. The applicant challenged the reference to additional time being considered in relation to whether documents were subject to legal professional privilege. Nothing significantly turns on this point in my view as there was no evidence adduced by the respondent as to legal professional privilege. The respondent merely references to the possibility of additional time required to examine documents which the privilege may apply.
4. The applicant submitted that the respondent had conceded that its document management was poor. He relied generally on the reference set out in Singh at paragraph [34] above. He said that the search terms used by the respondent were so wide that they produced an inaccurate and inflated result to justify reliance on an unreasonable and substantial diversion of its resources.
5. I have considered the size of the respondent and the resources available to it. I accept the evidence of Ms Bodley in this regard. I note that it is almost consistent with the applicants search of the respondent having two staff members in the communication and media department which department deals with GIPA applications.
6. I do not accept the applicants contention that the search terms of the respondent were flawed. I prefer the evidence of Ms Bodley, which sets out a well-reasoned approach as to why the word "Baradine" was used. Ms Bodley in her second affidavit also used exact terms which included "Baradine Sawmilling" "Baradine Sawmill" or "BS" which produced similar results in terms of the large volume of documents falling within the scope of the request as when the search term "Baradine" was used.
7. It is difficult to determine with absolute accuracy the amount of time Ms Bodley estimates in the respondents staff dealing with the access application. I do note this was not challenged apart from the volume of documents identified in the search. Ms Bodley was not cross-examined. Absent evidence contrary I accept Ms Bodley's evidence. However, even if I were to accept that half the time which has been estimated by Ms Bodley was necessary to process the application, than that would still be a substantial and unreasonable diversion of the respondent's resources.

Whether other applications are related to this application

1. Given my findings above, I did not necessarily have to determine this issue. For completeness, and if I am incorrect in my findings concerning the application being a substantial and unreasonable diversion of the respondent's resources, I find as follows.
2. I have considered the decision of Senior Member C Ludlow: Paul v Forestry Corporation of NSW [2019] NSWCATAD 68 (26 April 2019). Senior Member Ludlow considered this very issue in the context of a GIPA application which was brought against the respondent by one of the applicants brothers, namely Mr Patrick Paul.
3. I have considered the principles as set out in Zonnevylle at paragraph [32-33] above.
4. I am satisfied that the applicant and his two brothers are shareholders in Baradine Sawmilling Co Pty Ltd which is in a commercial dispute with the respondent. I have accept the evidence of Ms Bodley which sets out the substance of the four GIPA applications brought by the applicant and his brothers against the respondent. I find that the applications overlap in terms of their scope and are related for the purposes of s. 60 of the GIPA Act.

Breach of State Records Act 1988

1. The applicants submission that the respondent is in breach of the State Records Act 1988 is not a matter in which I have jurisdiction to determine.
2. In the result, I affirm the decision of the respondent made 6 July 2018. The decision of the respondent of 12 December 2018 is varied in relation to item 1 such that the respondent is to refuse to deal with item 1 pursuant to s. 60 of the GIPA Act.

Orders 1. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. 2. The decision of the respondent made 6 July 2018 is affirmed. 3. The decision of the respondent made 12 December 2018 is varied such that the respondent is to refuse to deal with item 1 pursuant to s. 60(1) Government Information (Public Access) Act 2009 (NSW). **********​ 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: 09 December 2019