Paul v Forestry Corporation of NSW

NCAT Administrative and Equal Opportunity|2019-02-27

Background

The applicant applied for access to information held by the respondent on 3 April 2018 pursuant to the Government Information (Public Access) Act 2009 ("the GIPA Act"). The respondent determined to refuse to deal with the access application on the grounds that it would require an unreasonable and substantial diversion of the respondent's resources.
The applicant applied for external review by the Information and Privacy Commission on 23 May 2018. The Commission recommended that the respondent make a new decision.
The respondent issued a new decision on 4 October 2018. That decision affirmed the original decision but provided detailed reasons. The applicant was not satisfied with this decision and sought review in this Tribunal.
The original application was for "copies of emails file notes memoranda and the like which reference my name" (that is, the name of Patrick Paul.) It was later advised by the applicant that the request related to material dating from 1 July 2015 until the date of the application.

Legislation

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."

Evidence of the respondent

The respondent relied on the evidence of Ms Joanna Bodley, the Manager Communications and Media with the respondent.
Ms Bodley processes and makes decisions on behalf of the respondent under the GIPA Act. Ms Bodley's evidence was that the applicant and two members of his family, Ian Paul and Michael Paul, owned the Baradine Sawmilling Co Pty Ltd ("Barradine") and that the respondent had a contractual agreement with Baradine under which a number of disputes arose between 2015 and 2017 and which were ongoing.
Ms Bodley gave evidence of her actions to attempt to narrow the scope of the application which resulted in the applicant clarifying that the request related to: 1. minutes, file notes and memoranda which referred to Patrick Paul, the applicant; and 2. Emails between Nick Roberts, Dean Anderson, Andrew O'Brien and Conan Rossler which referred to Patrick Paul in 2016 and 2017.
Ms Bodley said the respondent had received four access applications from members of the applicant's family (Ian Paul and Michael Paul) since November 2017. She provided details of these applications.
Ms Bodley said it was her understanding, having reviewed the applications, that the searches that would need to be undertaken to respond to the present application were "in many respects the same as those that have been undertaken" in response to the other four applications.
Ms Bodley's evidence as to the work involved in the application can be summarised as follows: 1. Most of the information sought will be stored either on the respondent's TRIM electronic document management system, the shared network drive in the Western region office, the Head Office's shared network drive or the email inboxes of the staff whose names are identified in the application. 2. The TRIM system does not provide a facility to search by record content. It is likely that the titles of the records in TRIM which come within the application will refer to the applicant's company rather than his name. 3. Sample searches conducted by the respondent for the period 2014 to 2018 using the company names produced 290 records. 4. The search facility of the shared network drives also only allows for searches to be conducted by the file name of a document and not by content. 5. The applicant is commonly referred to as "Paddy" in email correspondence between the staff referred to, rather than "Patrick". 6. In January 2016, the respondent changed its email software. According to Ms Bodley: "From January 2016 until May 2016, the FCNSW IT Department migrated all emails which were previously saved on Microsoft Exchange On-Premise to Microsoft Exchange Off-Premise. Emails that were migrated bear the date of migration rather than the date on which they were sent or received. It is necessary to individually examine each migrated email to determine on what date it was sent or received. The effect of this is that when searches are conducted for emails during the period January to May 2016, all emails that were migrated during that period will have to be considered in the search process. This is despite the fact that many of the emails may not have been sent or received in that period." 1. Initial searches of the inboxes of the four staff referred to for keywords 'Patrick", "Paddy" and "Paul" for 1 July 2015 to 4 April 2018 produced 18,191 emails. She has also seen emails where the applicant signed off as "P D Paul". 2. She understands that staff in the respondent's IT section are concerned that if it were to export such large numbers of emails the exported files may become corrupted. This was based on previous experience of a similar occurrence which necessitated the respondent purchasing software at a cost of $500. She did not know if the respondent still possessed the software referred to. 3. The respondent has around 500 employees. The Western Region Office has three administrative staff. She believes that if one of these staff members were required to spend one day performing searches on the shared network drives and reviewing the documents, this would have a significant impact on the functioning of the office and the support to field based staff. 4. The respondent has 1.6 staff who currently perform functions in response to GIPA requests. They also have additional duties including facilitating Ministerial processes, support to Parliament, corporate and internal communications and liaising with media. 5. It was estimated that it would take one staff member a minimum of one minute to review a document and determine whether it was responsive to the application. Based on the number of 290 TRIM documents and 18,191 emails it is estimated that the process would take approximately 308 hours. If it was based on 381 emails it was estimated to take 127 hours. 6. The process would then involve copying the relevant documents, numbering and listing them in a schedule, which would take a minimum of 5 minutes per document. 7. A staff member would then need to consider if there were any public interest considerations against disclosure and conduct consultations in that regard. It was believed that a significant amount of the information would be subject to legal professional privilege. 8. She believes that it is reasonable to assume that approximately 10% of the information would be found to come within the application. On this basis she estimated an additional 308 hours would be required to process and consider that 10%. Applying a salary rate of $74 per hour, this would cost $45,584. 9. The consultation identified above does not include consultation with the three employees named in regard to the emails concerning any public interest considerations. These employees are senior managers and include the CEO of the respondent. She estimates 5 minutes per email for this task, amounting to 154 hours. 10. If the search was restricted to references to "Patrick Paul" in the title, author or addressee fields, as well as "Baradine" and "Paul" alone, she estimated that a minimum of 646 emails and documents would be located. On the same basis as above, she estimated that a minimum of 74 hours would be required to determine the application plus 127 hours for consulting with the four staff. 11. Three GIPA applications were made by Michael Paul and one by Ian Paul between November 2017 and November 2018. The application by Ian Paul sought information relating to log harvesting of the Pilliga Forest by Baradine and other contractors, and decisions pertaining to Baradine, as well as staff movements as well as copies of emails between Andrew O'Brien, Dean Anderson and Conan Rossler (staff of the respondent) that pertained to Baradine between 1 January 2014 and 31 December 2017. 12. The first application by Michael Paul (following consultation) sought minutes files and memoranda that mentioned his name and emails between Andrew O'Brien, Nick Roberts, Dean Anderson and Conan Rossler for the period 1 July 2015 to date. The second application sought emails concerning himself for the period 1 July 2015 to 31 December 2017 between the above persons and also two other staff. The third application sought emails concerning himself or Baradine from 1 July 2015 to 31 December 2017 between all the staff named in the first two applications. 13. The respondent's dealings with the applicant and his brothers Ian Paul and Michael Paul have been limited to dealings in relation to Gunnedah Timbers and Baradine. She has been informed that the applicant and Ian Paul appeared for Baradine at a mediation with the respondent in March 2018 and the applicant has corresponded on behalf of both companies. 14. According to ASIC records the applicant was a director of Gunnedah Timbers until 28 August 2014. Gunnedah Timbers is owned by George and Robyn Paul whom she states are the applicant's parents. ASIC records also show that the applicant, Mark Paul, Michael Paul, Ian Paul and Brendan Paul own equal numbers of shares in Baradine.
I queried the reasons for the lack of ability to search the content of documents in TRIM and on network drives. The respondent's evidence was lacking in detail but I understood that the method of scanning used when paper documents were stored in TRIM may be the reason some document content was not searchable. There was no evidence, however, as to whether it would be faster to search for the information if content search was possible.

Evidence of the applicant

The applicant disputed the relevance of his family members or Baradine to the application. He said the GIPA Application was solely in relation to his name and suggested that the respondent was breaching privacy by referring to other entities in its evidence. He noted that the respondent stated in its annual report that it generated total revenue of $384 million in 2018 and processed 11 GIPA applications. He 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. He tendered a TRIM user guide which suggested that as well as a title word search, a search could be conducted for document content.

Whether other applications are related to this application

The respondent contended that the other applications lodged by members of the Paul family had the same subject matter and sought substantially the same information. It submitted that the applicants had in effect split one large application into four applications and that the Tribunal should find that all the applications were related for the purpose of s60(3) of the GIPA Act. Under that sub-section two or more applications may be considered as the one application in deciding whether to deal with an application which would require an unreasonable and substantial diversion of the agency's resources, if the agency determines that the applications are related and either made by the same applicant or by persons acting in concert in connection with those applications.
It was not in dispute that the respondent had received four access applications from members of the applicant's family (his brothers) since November 2017. The applicant did not deny that Baradine was in contractual dispute with the respondent or that he and his brothers were shareholders in Baradine. Ms Bodley's evidence that the searches that would need to be undertaken to respond to the present application would be similar in many respects as to those undertaken in relation to the other applications was also not contradicted.
The respondent relied on Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 and submitted that the other four applications referred to were related to this application. It submitted that the Tribunal could infer this from evidence that; 1. Ian Paul, Michael Paul and Patrick Paul had similar if not identical interests in receiving the information as shareholders of Baradine which is currently in a contractual dispute with the respondent; 2. The applications sought information in common and there was overlap and similarities between the wording of the applications; 3. The requests for information relating to the individual brothers would produce information related to the company of which they were shareholders.
The respondent submitted that in practical terms a request for any of the Paul family's personal information is a request for information in relation to one of the companies, and that a fair reading of the application reveals that it is an attempt to get access to information which has previously been requested under the other applications.
The applicant has responded that the relevance of his relatives and the companies to these proceedings is not apparent to him.
I have reviewed the individual applications. Ian Paul's application seeks a wider range of specific information related to Baradine, log harvesting and other matters. The first application by Michael Paul (following refinement) sought minutes, files and memoranda that mentioned his name and emails between Andrew O'Brien, Nick Roberts, Dean Anderson and Conan Rossler for the period 1 July 2015 to date. The second application sought emails concerning himself for the period 1 July 2015 to 31 December 2017 between the above persons and also two other staff. The third application sought emails concerning himself or Baradine from 1 July 2015 to 31 December 2017 between all the staff named in the first two applications.
The present application sought "copies of all emails file notes, memoranda and the like that reference my name". The dates provided to the agency by the applicant were from 1 July 2015 to the date of the application. At a later date the applicant refined his application to apply to emails between Nick Roberts, Deane Anderson, Andrew O'Brien and Conan Rossler for that period which referred to his name.
I am satisfied that Michael Paul and the applicant are brothers and joint shareholders in the company which is in dispute with the respondent. There are distinct similarities in the information sought, the wording, the time period referred to and the names of the staff whose emails are sought by Michael Paul and the applicant. I am also satisfied that there would be some overlap in the information produced by the search owing to their relationship with Baradine. This leads me to infer that the applications are related. There is no direct evidence that the applicants acted in concert in connection with their applications. However I consider it is reasonable to infer this from the facts above. I therefore conclude that the Tribunal is entitled to treat the second and third applications of Michael Paul and the current application as related for the purposes of s 60.

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

The respondent relied on the decision of Judicial Member Molony of the Administrative Decisions Tribunal in Colefax v Department of Education and Communities (No 2) [2013] NSWADT 130. In my view it is helpful to quote that decision at some length: "20 As was the situation under the relevant provision in the Freedom of Information Act 1989, s 60(1)(a) of the GIPA Act provides that a decision maker must be satisfied that an access application would require both an unreasonable and a substantial diversion of an agency resources, before refusing to deal with an application. In making that decision 60(2) says that the Agency is not required to take into account any extension of time for processing the request beyond that stipulated in s 57. 21 A decision with respect to whether an access application would require both an unreasonable and a substantial diversion of an agency's resources requires a decision maker to exercise discretion in reaching a conclusion. In this regard that the GIPA Act contains a general presumption in favour of disclosure of government information (s 5) and gives members of the public "an enforceable right to access government information." Importantly s 4(2) instructs - (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. That instruction is relevant to the exercise of the discretion in determining whether or not an application will constitute an unreasonable and substantial diversion of resources. The Freedom of Information Act 1989 did not contain a similar instruction. 22 This is an important distinction between the former and the current access to information regimes. It is a distinction which means that decision makers should be cautious when considering the applicability of decisions relating to the Freedom of Information regime, in the context of the GIPA Act. For example in Cianfrano v Director General, Premier's Department [2006] NSWADT 137 the President reviewed the authorities relating to a decision as to whether or not a request under the Freedom of Information Act 1989 was likely to constitute an unreasonable and substantial diversion of resources. He did so in the context of an application for access to all documents held by the Premier's Department and the Premier in relation to the preparation and finalization of the lease for the assets and business interests of the Sydney Market Authority, and to the sale of the assets of Sydney Markets. 24 The President nominated nine, non-exclusive, factors which needed to be balanced in making such a determination in that case. They were, 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 25 In my opinion most of those considerations are equally applicable to a consideration of whether a request under the GIPA Act constitutes an unreasonable and substantial diversion of an agency's resources. A factor that concerns me is that in (g), being the 40 hours processing time. I discuss this in more detail below. 26 In addition to these factors, however, an access applicant under the GIPA Act has statutory right to access government information, and the Act instructs that discretions under it be exercised so as to enhance its objects. These legislative provisions apply with respect to applications under the GIPA Act and may result in the differing weight and importance being accorded to the Cianfrano factors. 27 Further, the circumstances of this case highlight another factor of relevance to the question of whether the request requires an unreasonable and substantial diversion of resources. This is that the information sought by Ms Colefax relates to herself, and is substantially likely to be her own personal information within the meaning of definition of that term in Clause 5 of Schedule 4 of the GIPA Act. The fact that an access applicant is seeking his or her own personal information, is a factor relevant to the determination. 28 With respect to the 40 hour consideration referred to by the President In Cianfrano, the Tribunal in that case accepted evidence that a request taking more than 40 hours to process would be a cause for concern to those responsible for processing it. Considerable caution needs to exercised with respect to that finding. It was made in the context of the facts and evidence in that case, and should not be taken as establishing something in the nature of a 40-hour rule."
The respondent also relied upon Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7 where it was stated (at [40]): "Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications…"
The respondent submitted that it was a matter for the agency to determine what resources it makes available to process an application. In Loussikian v University of Sydney [2018] NSWCATAD 140 the Tribunal considered this issue. There was some dispute about whether the University's estimate of the time required was reliable, but Senior Member Montgomery determined that as the estimate was based on a trial it had undertaken, requiring it to undertake a broader trial would not be reasonable (at [16]). He said: "It is a matter for the University to determine what resources it makes available to process GIPA access applications. Whether or not the University is a large, well-endowed agency is not a relevant consideration in this matter. I agree with the Applicant that the Cianfrano 40 hour reference should not be regarded as establishing a 40-hour rule. Each matter is to be considered on its own facts and an assessment is to be made in regard to whether the resources available to the agency are such that the time required to process the access application would constitute an unreasonable and substantial diversion of the agency's resources in accordance with section 60 of the GIPA Act."
See also Hanna v NSW Ministry of Health [2019] NSWCATAD 21 in which the Senior Member said it was not a relevant issue whether the agency was large or well-endowed.
It is noted that s 60(3A) of the GIPA Act which commenced on 28 November 2018 specifically permits an agency to take certain matters into account under s 60, while s 60(3B) requires those matters to be balanced against the general public interest in favour of disclosure and the demonstrable importance of the information to the applicant. These provisions, however, had not commenced at the time this application was determined and did not apply.
The applicant submitted that the respondent had conceded that its document management was poor and relied on Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5 at [102] where it was stated that the power to refuse to deal with an application should only be used as a last resort after making every attempt to assist an applicant in narrowing the request, and: "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."
The applicant offered to reduce the scale of its application further to: "emails between Dean Anderson, Conan Rossler and Andrew O'Brien that refer to Patrick Paul during the 2016 and 2017 years."
The applicant also challenged whether legal professional privilege would apply to any documents as the three staff referred to were not solicitors. There was no evidence of third party involvement or claims of commercial in confidence. The respondent had not provided evidence of their searches to substantiate their claim of the likely number of documents. There were discrepancies between the searches. There was no evidence as to how the estimates of time were arrived at. The applicant submitted that the respondent appeared to have no expertise in conducting email searches and using search criteria.
Applying the first of the considerations in Colefax, the terms of the request are broad and seek to capture all emails relating to the individuals or business named for a specific period where those emails are between any of a named group of people.
I am satisfied, based on the evidence of Ms Bodley, that much of the information would be personal information of the applicant or information relevant to his and his brother's business interests in Baradine and might assist him in his dispute with the respondent. However it has not been possible to ascertain how important otherwise the information is to the applicant as no evidence was tendered by the applicant on this point.
I have considered the size of the agency together with the extent of its resources usually available for dealing with GIPA applications. I am satisfied that the work would be divided between the Western Region office, where there are three administrative staff, and the head office. Presumably more staff are available to be allocated In the head office but only 1.6 staff work on GIPA requests. It also appears that IT staff are available to assist with exporting of emails. The staff named in the emails would also be involved in consultation.
There was some evidence, based on a trial search, as to how long locating and processing a search for all file notes, minutes and memoranda between 1 July 2015 and 4 April 2018 which referenced the phrase "Patrick Paul" only and all emails for the same period between the named staff referencing the same name. This search might not capture all the information sought, for the reasons stated above, but during the hearing the applicant said he would be willing to reduce the scope of his application to that set out in the trial search.
Ms Bodley estimated that this would retrieve at least 646 documents of which she estimated 381 would be responsive. She estimated it would take approximately 1 minute per document to identify if it was responsive and a further 10 minutes per document to copy, list and review them for public interest considerations. On this basis she estimated a minimum of 74 hours would be required plus 127 hours for consulting with the four staff named.
These estimates are not certain but they are based on previous trial searches.
I consider 127 hours to be a high estimate for consultation and it appears that Ms Bodley has assumed that every staff member named would have to be consulted on every document and they would all be performing the same amount of work. On the available evidence I am only satisfied that consultation would take at least half that, or approximately 64 hours. This would result in a minimum of 138 hours. The timeframe for a request is 20 working days (s 57). I have noted that the respondent's resources for assessing GIPA applications are limited and a lengthy search would occupy a substantial proportion of the available GIPA and administrative staff in the head office and Western region office. The staff performing the duties of searching and consulting, apart from the GIPA staff, would be taken from their usual duties for an unreasonable period.
I do not regard the possible corruption of exported emails as a relevant factor. The evidence was that there was software available to address this problem and I am not satisfied that the problem would recur. I am not satisfied that the respondent's documents are "poorly organised"; they are organised according to the agency's needs and priorities rather than the applicant's needs.
I have determined that the second and third Michael Paul applications and the current application are related. I am satisfied, based on the evidence of Ms Bodley, that a similar amount of information would have to be located, reviewed, copied, listed and consulted upon for each of the two Michael Paul applications. While there may be some overlap between the applications, this work in addition to the time estimated above creates an excessive and unreasonable diversion of the respondent's resources in my view.
Even if I am wrong in determining that the other applications are related, in my view processing the applicant's application, even on the reduced scope identified above, would be a substantial and unreasonable diversion of the respondent's resources.
The applicant has raised some extraneous matters relating to privacy and the State Records Act. These are not relevant to the Tribunal's functions in this matter.
I have considered that the information sought will include information which is personal to the applicant and may be relevant to the company's dispute with the respondent. It is desirable that the applicant obtain access to such information. The GIPA Act requires that it be interpreted and applied so as to further its objects of making government information accessible to the public, promptly and at the lowest reasonable cost. However, the application as it stands, whether or not considered with other applications, would require a substantial and unreasonable diversion of the resources of the respondent and for that reason the application should be refused.

oRDER 1. The decision under review 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: 26 April 2019

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)

Cited By (1)