Shvetsova v University of New England

NCAT Administrative and Equal Opportunity|2015-03-20|Before: Health J

reasons for decision

The applicant made an access application to the University of New England ("University") under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"") in September 2013. The application provided as follows: 1. I apply for records regarding my review rights in relation to the Service Quality Unit decision made on 10.09.2013. 2. I apply for records regarding legislation which the Service Quality Unit used for the investigation of my complaint lodged on 21.08.2013. 3. I apply for records showing that the Service Quality Unit decision made 10.09.2013 can be reviewed at the Administrative Decisions Tribunal.
The University decided that the application was invalid. It said that the information the applicant had applied for cannot be requested under the GIPA Act.
The applicant applied to the Information Commissioner for a review of the University's decision.
On 11 August 2014, the Information Commissioner found that the applicant's application was valid. The Information Commissioner recommended under s 93 of the GIPA Act that the University make a new decision, by way of internal review, within 15 working days.
On 29 August 2014, the University made a new decision. It found that the applicant's application was valid. In relation to the applicant's request for records regarding her review rights, the University found that the information requested was already available to the applicant as it was contained in the University's policy documents. It nevertheless provided the applicant with a copy of those documents.
With regard to the applicant's request for records regarding legislation, and her request for records showing that the Service Quality Unit decision could be reviewed at the Administrative Decisions Tribunal, the University decided that it did not hold this information.
On 3 September 2014, the applicant applied to this Tribunal for a review of the University's original decision. The applicant wrote on the application form, in response to a question asking her to identify the ground on which she sought review, "I am not satisfied with the decision."

Determination of matter on the papers

The University submitted that the Tribunal should determine the matter on the papers. The University said that it is inappropriate for the matter to proceed to hearing where the applicant already holds all the information the University is able to provide to her in response to the application, and where the applicant appears to be misusing the GIPA process. The University requested the Tribunal to take into account the significant amount of time, money and resources already expended by the University in dealing with the applicant.
The applicant stated that she was opposed to the matter being determined on the papers. She said that she would have a better opportunity to present her case at an oral hearing. She also said that it would be convenient for University staff members to attend the hearing. Finally, the applicant submitted that, as the matter concerned a "systematic abuse of civil rights", it would be in the public interest to have an oral hearing.
Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) provides as follows: 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.
I have had regard to the parties' submissions about whether the matter should be determined on the papers. There is no evidence that the matter concerns a systematic abuse of civil rights, as the applicant submitted. Nor is the convenience or otherwise to University staff of attending a hearing a relevant factor. The amount of time and resources spent by the University dealing with the applicant in the past is also, in my view, irrelevant to the question of whether an order should be made dispensing with a hearing.
I have taken into account that the applicant is unrepresented and that this is often a factor in favour of holding a hearing, as unrepresented parties may find it easier to communicate their views and evidence orally. However, in this case I am satisfied that the applicant has had an adequate opportunity to put forward her case, both in submissions to the Tribunal and in her previous correspondence with the University, to which I have had regard. I have also taken into account the guiding principle for the Civil and Administrative Tribunal Act 2013, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013, s 36). The just resolution of the proceedings may be achieved without an oral hearing, and this is also a quicker and cheaper way of resolving them.
I have determined to make an order dispensing with a hearing, as I am satisfied that the issues for determination can be adequately determined in the absence of the parties (Civil and Administrative Tribunal Act 2013, s 50(2)).

Application for non-disclosure order

The applicant requested in her submissions that the Tribunal not disclose her identity in the proceedings, as she said that such disclosure could adversely affect her employability. She said that she was highly convinced that all the Australian educational institutions conceal important information about their administratively reviewable decisions and that there might be a number of other government agencies that are in breach of the administrative law legislation. She also said that the issue had been extremely stressful for her and that publicity would make it even worse for her.
I have treated the applicant's request as an application for an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the applicant's name.
As this Tribunal noted in Beer v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 23 at [11], "[t]he general rule that proceedings are to be open to public scrutiny is a reflection of a fundamental precept of the common law concerning the administration of justice". The legislature has given this Tribunal, like the Administrative Decisions Tribunal which preceded it, specific powers to limit the publication of identifying material relating to parties and witnesses, where it is "desirable" to do so. Notwithstanding that this confers a broad discretion on the Tribunal, the principle of open justice remains relevant.
The Appeal Panel summarised some of the relevant principles applicable to the making of non-publication orders under the legislation governing the Administrative Decisions Tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]. In my view, those principles are equally applicable under the Civil and Administrative Tribunal Act 2013. They include "the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order".
In the circumstances of this case, I am not persuaded that it is desirable to make the non-publication order sought. The applicant has not provided any evidence supporting her claim that the publication of her name would affect her employment prospects. Even if it would, this of itself does not, in my view, make it desirable to suppress her name. Any stress to her caused by publication of her name is regrettable, but it does not constitute sufficient grounds for the making of the order sought.

Summons

The applicant foreshadowed in her submissions that she was going to apply for a summons to be issued to the University, as the University "failed to provide me with access to the records I requested under the GIPA Act."
The applicant has not applied for the issue of a summons. The foreshadowed summons would, as I understand it, seek the information the subject of her application. This is not a proper purpose for requesting a summons.

Submissions concerning application for access to information

The University submitted that, in making its decisions and providing the applicant with information, it satisfied its search obligations under s 53 of the GIPA Act.
A Senior Legal Officer employed by the University said, in a letter sent to the Tribunal, that the required searches were conducted by numerous members of staff in various departments of the University, including without limitation, the Legal Office, the Legal and Governance Office, the Records Management Office, and the Service Quality Unit. He also said that the University expended a significant amount of time and resources searching and reviewing large volumes of information relevant to the applicant's claim under separate proceedings brought against the University in the New South Wales Supreme Court. He identified passages in that decision which related to the information sought by the applicant (Shvetsova v The University of New England [2014] NSWSC 918 at [23], [48], [49], [50], [51] and [52]).
The University said that it was not clear to it what the applicant's concern is regarding its decision because she simply stated that she was not satisfied with it in her application. However it noted that, during the planning meeting, the applicant had said that she was not happy with the wording in the document provided to her by the University because, in setting out the agencies to which students may complain, the complaints policy did not provide a specific reference to the Tribunal. The University submitted that the applicant may be misusing the GIPA process.
In her submissions, the applicant stated that the University did not provide students with full information regarding their rights. She said that the University did not disclose on its website that students can complain to the Tertiary Education Quality and Standards Agency or to this Tribunal.

University's evidence

The University's response to the Tribunal's direction to file and serve evidence and submissions was unusual, in that both the University's submissions and the matters of fact on which the University relied were set out in a letter to the Tribunal from a Senior Legal Officer in the Legal Office of the University.
The Tribunal's general expectation is that, when an agency is directed to file and serve evidence and submissions, an agency officer or other appropriate person will make a formal statement, annexing relevant documents. This creates a clear distinction between the agency's evidence and its submissions, which is helpful both for the party responding to the agency's evidence and for the Tribunal. However, a formal statement is not required by the governing legislation.
The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material (Administrative Decisions Review Act 1997, s 63(1)(a)). Such "factual material" may take a variety of forms. One of the objects of the Civil and Administrative Tribunal Act 2013 is "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (Civil and Administrative Tribunal Act 2013, s 3(d)) and it is consistent with this object that the Tribunal accepts evidence provided in an informal way. It is fundamental that "[t]he Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (Civil and Administrative Tribunal Act 2013, s 38(2)).
Those paragraphs of the University's letter to the Tribunal that describe searches undertaken by the University constitute "relevant factual material" to which it may have regard pursuant to s 63 of the Administrative Decisions Review Act 1997.

Determination of access application

As set out above, the applicant sought three categories of information. The first was information about her review rights in relation to a particular Service Quality Unit decision, the second was information regarding legislation which that Unit used for the investigation of a particular complaint and the third was records showing that a decision of the Unit can be reviewed at the Administrative Decisions Tribunal.

Information about applicant's review rights

The first request for information comes very close to being a request for advice or assistance rather than an application for access to government information. The boundary between requesting access to information and requesting an agency to interrogate information in a particular way may sometimes be hard to draw. Nonetheless, an analysis of the relevant legislative provisions indicates that the right to information is a right to access existing information, not a right to have questions about that information answered.
Some of the relevant provisions of the GIPA Act are as follows. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against its disclosure (GIPA Act, s 9(1)). "Government information" is defined to mean "information contained in a record held by an agency" (GIPA Act, s 4(1)). The obligation of an agency to provide access to government information is limited to information held by the agency when the application is received, and the agency must undertake reasonable searches for the information (GIPA Act, s 53(1) and (2)). If the information is not held by the agency, the agency may make a decision to that effect (GIPA Act, s 58(1)(b)).
It is implicit in these provisions that the "information" for which a person may apply is information which already exists; the GIPA Act does not contemplate that the agency is required to, in effect, answer questions about its decisions or functions when responding to an access application.
This view is consistent with the comments of Deputy President Higgins (as she then was) that the GIPA Act "is not a vehicle for seeking answers to questions a person might have in regard to administrative action taken by a government agency, or seeking an explanation by an agency as to why particular action was taken": Davison v NSW Department of Education and Training [2013] NSWADT 25 at [3]. Higgins DP observed that such a question is not a request for information "held" by the agency: Davison v NSW Department of Education and Training [2013] NSWADT 25 at [24].
The applicant's request for information about her review rights in respect of a particular decision made by the University falls on the borderline between a request for access to information and a request for advice. In my view, it could be characterised as a request for advice because it requires the agency to make a judgment about the applicant's entitlements. Read narrowly, however, the application can be read as a request for access to any information held by the University stating what the review rights are in respect of a certain kind of a decision. This is the way the University treated it, and it provided her with publicly available policy documents responding to that request.
The applicant's dissatisfaction with the content of those policy documents is not a proper basis for applying to this Tribunal for a review of the agency's decision. That is using the GIPA Act "as a vehicle for the collateral review of the merits or validity of official action" (cf Crewdson v Central Sydney Area Health Service [2002] NSWCA 345) and misconstrues the nature of access rights under the GIPA Act.
I am satisfied that the University has provided the applicant with access to the information held by it about her review rights and has conducted reasonable searches for any further information it held at the relevant time.
The question of whether an adequate search has been conducted depends on whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so, whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case (see Shepherd and Department of Housing, Local Government and Planning (1994) QAR 464; Stanley v Roads and Maritime Services [2014] NSWCATAD 123 at [16] and [17]; Shvetsova v Department of Education and Communities [2015] NSWCATAD 26 at [37]). The agency has the onus of establishing that reasonable searches have been conducted (GIPA Act, s 105).
I am satisfied from information contained in the University's letter to the Tribunal that the University fulfilled its obligation to conduct "reasonable searches" for the information sought, within s 53(2) of the GIPA Act. I note that the letter to the Tribunal was signed by a Senior Legal Officer and that the Legal Office had, according to the letter, conducted some of the relevant searches.

Information about records of legislation used and records showing that decision may be reviewed

The second and third requests for information, being for "records regarding legislation which the Service Quality Unit used for the investigation of my complaint lodged on 21.08.2013" and for "records showing that the Service Quality Unit decision made 10.09.2013 can be reviewed at the Administrative Decisions Tribunal," are properly characterised as applications for access to information rather than for advice. This is because they do not require the University to engage in a further process of analysis or to manipulate existing information to answer a question.
For the reasons given above, the University has discharged its onus of establishing that it has conducted reasonable searches for the second and third categories of information, and that it has not found any. 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: 20 March 2015

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Judgment (9 paragraphs)

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Cited By (7)