respondent. The Tribunal amended the respondent's name to 'NSW Department of Communities and Justice' and affirmed the respondent's decision dated 21 August 2019 that the requested Corrections Intelligence...
Key principles
Under the GIPA Act an agency must undertake such reasonable searches as may be necessary to find requested information (s 53), and on administrative review the Tribunal's...
The Tribunal accepted the Appeal Panel's reasoning in Wojciechowska that the onus does not rest on the applicant to establish first that there are reasonable grounds to believe...
Where an agency provides credible evidence of the searches it conducted (search certifications, officer statements describing search steps and results) and the applicant fails to...
Issues before the court
Whether the Department holds Corrections Intelligence Group (CIG) 'Intelligence Reports' concerning the applicant for the period requested.
What is the applicable burden or onus allocation in reviews of 'information not held' decisions under the GIPA Act: does the applicant bear a...
What evidentiary standard suffices for an agency to demonstrate reasonable searches in response to a GIPA application?
Plain English Summary
The applicant, a person previously in custody, sought Corrections Intelligence Group intelligence reports and other records under the GIPA Act. The Department searched its systems, certified its searches and located some records but not any CIG intelligence reports. The Tribunal accepted the Department's search evidence, found the searches reasonable, and affirmed the decision that such intelligence reports were not held. The Tribunal followed recent Appeal Panel authority (Wojciechowska) that places primary focus on whether the agency's searches were reasonable and on the agency to justify a 'not held' decision; the applicant did not provide the cogent evidence the Tribunal requested to require further searches.
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Deep Dive
1,777 words · generated 24/07/2026
What happened
The applicant, Mr Ali Samandi, a former client of Corrective Services, applied under the Government Information (Public Access) Act 2009 (GIPA Act) on 19 June 2019 for government information about himself covering 1 January 2005 to 27 June 2019. The request encompassed three broad categories: the case management file, OIMS case notes, and Corrections Intelligence Group (CIG) intelligence reports (Background).
Cited legislation
1 cited instrument linked from this judgment.
On 21 August 2019 the Department (then the respondent) decided to refuse access to some of the information on the ground that it was not held by the Department (s 58(1)(b)). The Department did provide other materials and redacted third-party personal information not relevant to the applicant (Background).
The applicant lodged an administrative review application in the NSW Civil and Administrative Tribunal (NCAT / Tribunal) on 28 October 2019, challenging the Department's finding that the CIG intelligence reports were not held and asserting that the Department had not conducted reasonable searches (Background; The administrative review proceedings).
The matter went through multiple interlocutory steps. The Tribunal remitted the decision to the Department for reconsideration under the Administrative Decisions Review Act 1997; the Department reaffirmed its ‘not held’ decision and provided more detailed reasons and evidence of searches. Subsequent exchanges and a further remittal led to additional searches that produced a document (a confession) in the Commissioner’s Executive Unit which was released to the applicant (Administrative review proceedings).
The key dispute remained whether CIG intelligence reports existed and, if so, whether the Department had conducted reasonable searches to locate them. The Department produced search certifications and a statement by the CIG manager describing search processes and outcomes. The applicant did not file the sworn officer statement the Tribunal ordered and otherwise failed to adduce cogent evidence demonstrating the existence of CIG intelligence reports responsive to the request (Hearing; Further information provided after hearing).
The Tribunal considered the legal allocation of onus in ‘information-not-held’ reviews, in light of recent Appeal Panel authority (Wojciechowska) which questioned and reoriented earlier two-step approaches (Consideration). Ultimately the Tribunal accepted the Department’s search evidence as credible and found the searches reasonable. It concluded the Department discharged its obligation under s 53 of the GIPA Act and affirmed the decision dated 21 August 2019 (Conclusion; Orders).
Why the court decided this way
Statutory framework: The Tribunal’s task was to make the correct and preferable decision under the Administrative Decisions Review Act (s 63) in an administrative review of a GIPA decision. The GIPA Act requires agencies to undertake “such reasonable searches as may be necessary to find” requested information held when the access application was received (s 53), and gives an agency options under s 58(1) including deciding that information is not held (s 58(1)(b)).
Onus and focus of review: The Tribunal accepted the Appeal Panel’s analysis in Wojciechowska (NSWCATAP) that the correct approach under the GIPA Act is to focus on whether the searches conducted by the agency were reasonable, and that the agency bears the legal obligation under s 105 to justify its decision on review. The Tribunal concluded that it is not appropriate to treat the applicant as carrying a prior legal onus to establish that the documents exist before the Tribunal will consider the adequacy of searches (Consideration [1]–[4]).
Evidence of searches: The Department produced formal search certification(s), a statement from the CIG manager describing the search methodology (including use of the applicant's MIN), and records of the searches conducted across relevant systems. The Department also acted upon further particulars provided by the applicant which led to the location of a document in the Commissioner's Executive Unit (Administrative review proceedings).
Applicant's evidentiary shortcoming: The Tribunal had ordered the applicant to file a sworn or signed statement from an officer who allegedly referred to the existence of ‘intelligence’ impeding his classification review. The applicant did not file that directed evidence and otherwise relied on assertions and hearsay. The Tribunal judged the Department’s evidence credible and the applicant’s material inadequate to require further or different search strategies (Hearing; Consideration [7]–[9]).
Conclusion: On the balance of the evidence and legal approach adopted, the Tribunal found the agency had discharged its s 53 obligation. The decision that the CIG intelligence reports were not held was therefore affirmed (Consideration [9]–[11]; Conclusion).
Before and after state of the law
Before:
A long line of NCAT and NSWADT decisions had applied a two-step test (derived from Shepherd in Queensland) requiring first an inquiry whether there were reasonable grounds to believe the requested documents existed and were agency documents, and second whether the agency’s search efforts were reasonable. This approach effectively required applicants to put forward credible material to justify demanding further searches (The administrative review proceedings; references to Stanley, Cianfrano, Camilleri).
After (as applied in this case):
The Tribunal followed more recent appellate reasoning (Wojciechowska) that emphasises the agency’s statutory obligations under s 53 and s 105. The Tribunal accepted that the primary question on review is whether the agency has performed reasonable searches and whether the agency has justified its decision that information is not held, rather than imposing an antecedent legal onus on the applicant to prove existence of documents before such an inquiry is engaged (Consideration [1]–[4], [36]–[39] as cited from Wojciechowska).
Practical effect:
The result shifts the focus to the agency’s search processes and evidence. Applicants still may need to provide particulars to direct reasonable searches, but failure to supply such particulars will not automatically preclude the Tribunal from reviewing the adequacy of the agency’s searches or from finding that the agency discharged its obligations if the agency’s evidence is persuasive.
Key passages with plain-English translation
Tribunal: "I accept the authority and position from that case and believe that the real task of the Tribunal (consistent with Wojciechowska), is to determine whether the searches conducted by the agency are reasonable."
Plain English: The Tribunal’s job on review is to look at the agency’s search work and decide if it reasonably tried to find the documents, rather than making the applicant prove first that the documents probably exist.
Tribunal: "Having considered all of the evidence and material I believe that the searches conducted were reasonable and in that regard a finding that the document is not held is open to the Tribunal."
Plain English: After looking at the Department’s search records and statements, the Tribunal concluded the Department searched properly and therefore it is reasonable to say the documents are not held.
Tribunal: "I make a finding that the Department has discharged any onus that it has under s 53 of the GIPA Act to conduct reasonable searches for information held by the agency."
Plain English: The Tribunal is satisfied the Department did what the GIPA Act requires, it looked properly for the requested information.
Tribunal (Order): "The decision of the respondent dated 21 August 2019 is affirmed."
Plain English: The Tribunal agrees with the Department’s original decision refusing access to the alleged intelligence reports because they are not held.
What fact patterns trigger this precedent
An applicant alleges the existence of specific, discrete agency documents (e.g., intelligence reports) that the agency says it does not hold, where the agency produces evidence of search efforts and the applicant lacks corroborated, particularised evidence of existence or location of the documents.
Requests where the category of document is a defined, narrow class (for example, formal intelligence reports) and the agency can show that such documents are created only in particular circumstances or stored in identifiable systems, and searches of those systems were conducted by reference to the applicant’s identifiers (e.g., MIN).
Cases where the applicant is reliant on statements of agency staff or hearsay references to ‘intelligence’ made in meetings, but has no contemporaneous document or sworn testimony to show a specific document was created and retained.
Situations in which applicants are given directions by the Tribunal to file particular evidence to justify further searches but fail to comply.
How later courts have treated it
This judgment explicitly adopts the Appeal Panel’s reasoning in Wojciechowska which re-evaluated the traditional two-step test and placed emphasis on the agency’s s 53 obligation and s 105 burden. The Tribunal in Samandi applied Wojciechowska to reject the notion that an applicant must first discharge a legal onus to show the documents probably exist before the Tribunal evaluates the reasonableness of searches (Consideration).
The decision sits with other recent NCAT authority that is rebalancing the approach to onus and the practicalities of review; it reinforces the importance of agency search certifications and specific, contemporaneous evidence of search strategies. It will be cited in subsequent Tribunal matters where the existence of documents is disputed and where agencies produce structured evidence of searches.
Still-open questions
The exact contours of the evidentiary sufficiency required from agencies: while certificates and managerial statements sufficed in Samandi, questions remain about the threshold of detail needed in search certifications for more complex or distributed record systems.
The interplay between an applicant's procedural disadvantages (for example, in custody, with missing mail or inability to produce evidence) and the Tribunal's expectations of specific evidence: Samandi notes sensitivity but does not fully resolve how far procedural difficulty can excuse failure to produce particulars the Tribunal orders.
The limits of Wojciechowska’s approach: although Samandi follows the Appeal Panel’s reappraisal, there remains uncertainly as to borderline cases where the applicant provides some, but not comprehensive, evidence of document existence. How probative must applicant material be to meaningfully require agencies to go beyond straightforward system searches?
The boundaries of what constitutes a discrete document class: Samandi accepts that colloquial references to 'intelligence' will not necessarily equate to a formal CIG intelligence report; future cases will need to delineate more finely when oral references should lead to searches in alternative record locations or trigger inquiries into informal records.
The decision raises practical questions for agencies about record-keeping and naming conventions. If agency personnel use varied terminology, agencies may need to document search strategies more fully and consider searching non-standard or ad-hoc record locations to satisfy s 53 beyond the most obvious repositories.
In sum, Samandi affirms a Tribunal practice of closely scrutinising an agency's demonstrated search efforts under the GIPA Act while accepting that applicants are not required to surmount a preliminary legal onus of proving existence before the Tribunal will assess reasonableness. The decision underscores the evidentiary value of search certifications and officer statements, and highlights the practical importance for applicants of complying with Tribunal directions to provide particulars that will inform further searches.
Judgment (14 paragraphs)
[1]
REASONS FOR decision
This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).
[2]
Background
The applicant (Mr Samandi) was at various times a client of NSW Corrective Services within the respondent Department either on remand or later as a convicted inmate serving a custodial sentence.
On 19 June 2019 Mr Samandi made an application under the GIPA Act for access to information held by the Department (which included Corrective Services).
Mr Samandi was seeking the following information from the period 1 January 2005 to 27 June 2019 where it related to him:
Case management File
OIMS Case Notes
CIG Intelligence Reports
The specific information was set out in greater detail but can be refined down to the above points without any issues arising. On 21 August 2019 the Department made a decision under the GIPA Act to refuse access to some of the information applied for on the basis that the information was not held by the Department. By way of further background, the Department is required under the GIPA Act to conduct reasonable searches for information which is subject to an application. After conducting these searches the Department was unable to locate any Intelligence Reports (Dot point 3 at [4] above), concerning Mr Samandi during the requested period. As a result the Department made a finding that those documents were not held by them, and as a result under s 58 (1) (b) they refused to access to the information as the information was not held.
Section 58 (1) of the GIPA Act provides:
8 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.
In addition access was refused to some of the other documents identified on the basis that the information (personal details of third parties) was not relevant to the information requested - as it did not specifically relate to Mr Samandi. That information was redacted form the records provided and is not pressed by Mr Samandi.
The remainder of the information identified as falling within the scope of the access application was located and access was provided. That aspect of the decision is in accordance with s 58 (1) (a) of the GIPA Act.
Mr Samandi maintained his position that the Intelligence Reports should exist and that the Department had not conducted sufficient searches in deciding that the information is not held.
Mr Samandi decided to apply for administrative review by the Tribunal. The current application was filed on 28 October 2019, within the 40 working day period provided for by the GIPA Act.
101 Time for applying for NCAT administrative review
(1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review).
There is also is no dispute that the decision is an administratively reviewable decision to the Tribunal under the GIPA Act. Section 80 provides:
80 Which decisions are reviewable decisions
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part -
(a) a decision that an application is not a valid access application,
(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d) a decision to provide access or to refuse to provide access to information in response to an access application,
(e) a decision that government information is not held by the agency,
(f) a decision that information applied for is already available to the applicant,
(g) a decision to refuse to confirm or deny that information is held by the agency,
(h) a decision to defer the provision of access to information in response to an access application,
(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge,
(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
[3]
What the GIPA Act provides in respect of Government Information
The GIPA Act provides for the proactive release of government information, informal release of government information, as well as the formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.
These principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10]
7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.
8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.
9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".
10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
The GIPA Act has an objects provision at s 3, which includes a reference at s 3 (2) (a) that the legislation be applied so as to further those objects.
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(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.
[4]
The administrative review proceedings
The matter was initially listed at a Case Conference in November 2019 where the parties agreed that the decision should be remitted back to the Department under the Administrative Decisions Review Act 1997 (the ADR Act) so that a fresh decision could be made. On 20 December 2019 the Department affirmed the original decision. Whilst the decision was affirmed the Department provided more detailed reasons for the decision specifically focussing on Mr Samandi's contention that the Department had not conducted reasonable searches for the absent information.
In the second decision the Department found that Mr Samandi had not established that there were reasonable grounds for believing that further information falling within the scope of the access request exists. This position references a line of decisions of the Tribunal including Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]:
Are there reasonable grounds for believing the requested information exists and is information of the agency?
57. It is for the applicant to identify the reasonable grounds for such a conclusion. As was said in Camilleri, "It is not enough for the applicant to merely assert non-compliance on the basis of general distrust of the agency". The question is whether the agency's conclusion that it does not hold the information requested is sound. Describing its role in Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52, the tribunal said, "All that the tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches...." The present case is not unlike Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56, in which the President commented that "What I have before me is a deep-seated distrust of the respondent on the part of the applicant [and] instances of further documents being located after additional searches...."
The Department following Stanley referred to the cases of Turner v Commissioner of Police NSW Police Force [2017] NSWCATAD 367 referencing Turner v NSW Health Pathology, Forensic and Analytical Science Service [2017] NSWCATAD 114 where at [42] - [42] the Tribunal observes:
41. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This requires the applicant to put some credible material or submission before the Tribunal that documents of the requested kind exist. The requirement will not be satisfied by an assertion of non-compliance based on a general distrust of the agency in question: Camilleri at [13]; Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32].
42. The Respondent then bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances. In determining whether reasonable searches have been conducted, relevant considerations include "the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].
[5]
Jurisdiction
The decision under review is a reviewable decision in accordance with s 80 (c) and (e) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act.
[6]
Administrative Review
The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
[7]
The hearing
The matter was heard on 25 June 2020. As the applicant was not legally represented the practice and procedure of the Tribunal was explained and the broad provisions of the GIPA Act were outlined in the hearing.(s 38 (5) Civil and Administrative Tribunal Act 2013 'the NCAT Act'). The Tribunal observes that these matters had also been explained at the Case Conference on 21 April 2020 where the Tribunal was similarly constituted. Up until the hearing of the matter Mr Samandi was running his application whilst in custody and appeared by telephone under s 77 of the Crimes (Administration of Sentences) Act 1999.
Mr Samandi told the Tribunal that he was before the Court of Criminal Appeal (CCA) that morning, having been granted bail pending the outcome of his CCA appeal. His matter was listed for call-over and would be called after 10:00am and he sought that his NCAT proceedings be stood down until 11:00am. The Tribunal granted this request.
When the matter proceeded at 11:00am Mr Samandi advised that he had been released from custody on 9 June 2020. He advised that he sent two bundles of material to the Department by post in May 2020 when he was still in custody. Mr Samandi elaborated and said that he had also sent that material to the Tribunal between the date of the Case Conference on 21 April 2020 and his release on 9 June 2020.
Mr Samandi did not give evidence in a formal sense in the proceedings but did advise on record that he had spoken to the officer (who alerted him to the alleged existence of adverse Intelligence Reports) every 6 months to a year when he had a classification meeting.
Mr Samandi was reminded by the Tribunal that he was requested to put on some cogent evidence about this aspect, sufficient for the Department to pursue further inquiries. Mr Samandi advised that he had been focusing on the preparation of his CCA matter and was not able to properly prepare his case all along because of problems with the post and his paperwork and material going missing whilst in custody. This aspect has been raised at Case Conferences and the Tribunal whilst responsive to such matters, was only able to give Mr Samandi greater leeway and further time to comply with orders than would ordinarily have been the case. The Tribunal could not explain the absence of the material referred to at [30] (above) but noted that on Mr Samandi's own description it did not seem responsive to the request for a signed or sworn statement as directed at the final pre hearing Case Conference.
[8]
Further information provided after hearing in accordance with orders,
After the hearing on 25 June 2020 the Department filed and served an Addendum outlining the type of evidence that they would require in respect of Item (b) that would enable further searches or search strategies to be considered. This was consistent with the orders of 25 June 2020 directing Mr Samandi to file evidence about that Item.
The Addendum specified the type of evidence referred to by the Administrative Decisions Tribunal (ADT) in the case of Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195.
[9]
Department's evidence and submissions
The Department submitted that the outstanding information sought by Mr Samandi was not held.
The Department referred to the issue of 'reasonable searches' from the case of Little v Department of Communities and Justice [2020] NSWCATAD 112 where at [23] and [24] the Tribunal observed:
23. The approach the Tribunal takes to a question as to the reasonableness of searches has been put as follows (see Camilleri v Commissioner of Police [2012] NSWADT 5):
(1) The Tribunal must ask whether there are reasonable grounds to believe the information requested exists and is information of the agency.
(2) If the answer to (1) is yes, the Tribunal must consider whether the efforts made by the agency to locate the information have been reasonable in the circumstances.
24. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information exists but has not been released (Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]). This requires the applicant to put forward some credible material or submission that information of the kind exists. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187).
The Department submitted that there are not reasonable grounds to believe that the outstanding information exists or is held, because Mr Samandi has put on no evidence that establishes that it is reasonable to believe that a CIG Intelligence Report exists. The Department submitted that even if a statement from an officer was provided on behalf of Mr Samandi, the terms used or allegedly heard by the officer may not be necessarily accurate or referring to intelligence reports.
The Department submitted that verbal references to 'intelligence' are not necessarily specific and are often used interchangeably. They also submitted that a range of processes are involved in inmate reclassification, a number of which could be referred to as relying on 'intelligence' without actually resulting in a record being created and therefore held.
The Department submitted that consistent with Little Mr Samandi has provided no reasonable grounds for believing that such a record exists.
In respect of the reasonable searches issue, the Department submitted that they bear the onus that the searches were reasonable. In that regard the Department provided evidence by way of a GIPA Act Certification whereby a Searching Officer and the General Manager, Principal Manger or Regional Manager certify and sign off on the Searching Officer's certification. Such a Certificate dated 26 July 2019 was annexed to the Department's submissions.
[10]
Mr Samandi's evidence and submissions
Other than his application and his grounds of review, Mr Samandi did not file any further material in support of his application. His oral submission at the Case Conference assisted in the document in the Commissioner's Executive Unit being located, but no probative material was filed in respect of Item (b) concerning the purported Intelligence Report.
[11]
Consideration
Since the hearing of this matter the Appeal Panel of the Tribunal has revisited the issue of where the onus lies in determining whether material is held by an agency. The matter was recently addressed by the Appeal Panel of the Tribunal.
The case of Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 revisited this issue posed by s 53 of the GIPA Act. At [31] - [40] of Wojciechowska the Appeal Panel observed the following:
31. As the Commissioner points out, the two-step approach set out by the Tribunal in [22] reflects a long line of authority that has been followed by NCAT and one of its predecessors, the NSW Administrative Decisions Tribunal (the ADT). See for example, BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 at [30]; Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 and the authorities referred to by the Tribunal at [22].
32. That approach stems from the decision of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 (Shepherd). In that decision the Commissioner formulated two questions which he considered must be answered in an external review application involving "sufficiency of search" issues:
(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency ...; and if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
33. In Cainfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195, in the context of reviewing a decision to refuse access to a document under s 24(2) of the now repealed Freedom of Information Act 1989 (NSW), ADT President, O'Connor J commented on the first step of the test in Shepherd:
[69] An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.
34. The legislative scheme considered by O'Connor J was materially different from the current legislative scheme. In contrast to the GIPA Act, a notification that an agency does not hold a document was not a reviewable decision under the Freedom of Information Act. (see, Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140). In addition, the Freedom of Information Act did not contain an equivalent to s 53 of the GIPA Act.
35. In Webb v Port Stephens Council [2018] NSWCATAP 224, the Appeal Panel at [37] cited with approval the following passage from Amos v Central Coast Council [2018] NSWCATAD 101 (Amos) at [39], in which the Tribunal questioned the correctness of the test formulated in Shepherd, in particular, the notion that the applicant bears a "practical onus":
[39] The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O'Connor remarked that an applicant "must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material]." These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent's legal onus to justify its decision under s 105 of the GIPA Act.
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.
[12]
Conclusion
The correct and preferable decision is that in respect of the application for review, is that the decision of the respondent will be affirmed.
I therefore make the following order:
[13]
Orders
1. The name of the Respondent is amended to "NSW Department of Communities and Justice"
2. The decision of the respondent dated 21 August 2019 is affirmed.
[14]
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: 18 November 2020
The Tribunal amended the respondent's name to 'NSW Department of Communities and Justice' and affirmed the respondent's decision dated 21 August 2019 that the requested Corrections Intelligence Group intelligence reports were not held.
The GIPA Act also provides a number of provisions which allow an agency to refuse to provide access not on the basis of the content of the information, but on general administrative provisions. These types of matters relate in part to whether documents can be readily located and identified as being held by an agency. The statutory language refers to whether an agency has 'conducted reasonable searches for the information'. In addition the provisions also refer to a ground for refusing access (by refusing to deal with the matter) on the basis that to provide access 'would require an unreasonable and substantial diversion of the agency's resources'. (s 60 (1) (a).
The position being that there was an onus on an access applicant to establish that there were reasonable grounds for believing that the information exists has not been supplied. The Department noted that the evidence to support this position (as asserted by Mr Samandi) had not been provided.
The Department set out in their decision the nature of the searches conducted. These included the generation of:
A Convictions, Sentences and Appeals report to ascertain the number of custodial bookings and related Case Management Files generated for Mr Samandi by Custodial Corrections;
Searches of information concerning Mr Samandi and Macquarie Correctional Centre, concerning Case Files and 321 pages previously released to Mr Samandi concerning his Macquarie (MCC) Case management file;
187 pages retrieved and released concerning previous booking MCC 1/1/2005 - 27/6/2019.
Searches of information by the Corrections Intelligence Group (CIG). This search using Mr Samandi's MIN (Master Index Number) as a search term and did not locate any intelligence reports.
On that basis the decision was affirmed.
At a further Case Conference on 28 January 2020 the Tribunal again remitted / returned the decision for further consideration (by consent). That decision was on the basis that Mr Samandi disclosed a document that he signed whereby he confessed to an offence in custody. Mr Samandi believed that this document would fall with the search parameters.
The Department conducted the searches of the databases referred to above, but also searched material within the Corrective Services Executive Services area as there was a view (based on further information provided by Mr Samandi) that the 'confession' document might be held in that area. Such a document was located in the Executive Services area as part of information for the signature of the Commissioner. The Department released this document to Mr Samandi.
In respect of the Intelligence Reports, the Department conducted inquiries with the Manager of Security from the Corrections Intelligence Group (CIG) who advised that staff outside of the CIG will often use the term to describe information, and sometime do so if relevant in discussions with inmates. Those inquiries confirmed that such matters would not be stored on the CIG system as they would not be classified as a Corrections Intelligence Report. The manger further specified that these are a very specific and discrete category of document. On remittal the Department confirmed that no such document was located.
At a further Case Conference on 21 April 2020 the Tribunal fixed the matter for hearing on 25 June 2202 and made orders for the filing and serving of evidence and material. Mr Samandi was directed to file and serve his evidence in support of the absent Intelligence report(s) which are referred to as 'Item (b)'. Mr Samandi was requested to provide a signed or sworn statement providing evidence that Corrective Services Officers had advised that his classification review is not progressing due to intelligence holdings about him. Orders were also made in respect of the Department.
After a number of submission by the parties the matter was adjourned part heard to be finalised on the papers. Further orders were made concerning the filing and serving of material between 9 July 2020 and 4 September 2020. Specifically Mr Samandi was directed to file and serve any evidence that he sought to reply upon about Item (b) on or before 4 September 2020. The lengthy time frame relating to that timetable was to ensure that Mr Samandi was able to comply with the orders.
The Department also relied upon a signed statement of Graeme Conn dated 28 May 2020 whereby the searches in the Corrections Intelligence Group were set out and the processes and steps outlined. The statement concludes by reference to the Certificate referred to above. Mr Conn was the Manager certifying the Searching Officer's certification.
The Department submitted that reasonable searches were conducted on numerous occasions (both before and since the filing of the administrative review before the Tribunal).
I raise the matters referred to in Wojciechowska predominantly because they are central to the remaining matter in dispute, but also because much of the Department's position relies on the line of authority from the Queensland case of Shepard referred to in the decision. The reference in Little is also consistent with that earlier line of authority. In addition the references referred to from Stanley the cases of Turner likewise follow that earlier authority.
In the current matter Mr Samandi did provide some material by way of further and better particulars at the Case Conference, which did assist the Department in conducting further searches.
Those searches took the Department to the Commissioner's Executive Unit were a document was located and provided to Mr Samandi.
Whilst not inferring that one party (the Department) has done enough and the other has not, or vice versa, the observations from Wojciechowska are in my view relevant to establish that the onus does not specifically rest with an information access applicant. I accept the authority and position from that case and believe that the real task of the Tribunal (consistent with Wojciechowska), is to determine whether the searches conducted by the agency are reasonable.
Having considered all of the evidence and material I believe that the searches conducted were reasonable and in that regard a finding that the document is not held is open to the Tribunal.
I believe that the searches were reasonable having regard to the quality of the clarifying information provided by Mr Samandi, the fact that the Department acted on that information, and that some (but not all or most) of the expected remaining information was located.
The Department has put on evidence to support the steps that they took and the authors of that evidence could have been tested on it. Mr Samandi chose not to challenge that evidence. The Tribunal accepts that evidence as credible.
In addition Mr Samandi did not put on the type of evidence that he was requested to (notwithstanding any lack of onus). However in the absence of further clarifying particulars from him, the Department (as I view the material and submissions) was unable to practically progress the matter further.
Having considered all of these factors, I make a finding that the Department has discharged any onus that it has under s 53 of the GIPA Act to conduct reasonable searches for information held by the agency.
On this basis, I find that the Department has satisfied their statutory obligations in respect of their processing of the application for information under the GIPA Act.
In making this finding I note that the evidence upon which I am satisfied that the Department has discharged its onus only arose during the course of the review by the Tribunal.
However, on the basis of the finding that I have made above, there is no need to consider the matter further.