This matter concerns a determination by the Respondent in regard to a formal access application ("the access application") that the Applicant lodged with Wollondilly Shire Council ("the Respondent" or "the Council") under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by the Respondent. The Applicant had made an application for informal access prior to making the access application.
[2]
Background
The access application was in the following terms.
I refer to my correspondence pursuant to GIPA legislation for informal access to the file/s on Tahmoor Playground Cnr Larkin & York Streets Tahmoor, dating from February 2015 and the email correspondence from Michael Malone demanding fees, and the General Manager's letter dated 30 October 2015 in which the General Manager states:
"If you do not wish to pursue the Information by means of an informal application under the GIPA Act, it is open to you to make a formal application.'"
As I understand it, Tahmoor Playground was purchased by public subscription by Tahmoor citizens and is not owned by Wollondilly Shire Council. However, as Council has seen fit to refuse access without payment of fees outlined in Mr Malone's email, I will act on the General Manager's directive and make formal application for access to the file/s, noting that Council has no legal jurisdiction to change any person requesting information for supervision by Council employees.
In relation to the above, and as the General Manager and/or Wollondilly Shire Council has no legal jurisdiction to change any person for supervision on informal access to information held by Council I request unsupervised access only to Council file/s on Tahmoor Playground owned by the community, noting that the information is required for literary purposes and was requested informally commencing in February 2015. No photocopying of any description is required pursuant to this request.
The request for this information is in the public interest.
The Respondent's Senior Administration Officer Governance, Ms Susan Ogden, acknowledged receipt of the access application and sought clarification of the scope of the request. Ms Ogden asked the Applicant to "confirm that the scope can be amended to information dated between 1920 and 1970 as noted in your previous informal request to Council". Ms Ogden also referred to the possibility of charges for processing the application. This suggested narrowed scope reflects a statement that the Applicant made in an email to Mr Michael Malone, the Council's Director Infrastructure & Environment. In her email dated 11 September 2015 she wrote:
This is a research project and by the very essence of the concept, it's about finding historical information of interest to the centenary of Tahmoor. By its very nature, the letters you make reference to in your email may or may not be of interest and I can't discount them until after ascertaining content. I would be particularly interested in letters regarding the playground from members of the long dead Tahmoor Progress Association which originated in the 1920s. As to the contingency of staff being mentioned, that also may be of interest depending on the historical input. I simply won't know until I see what the files consist of.
Having said that, I could safely guess that I would not be interested in the content of files after 1970/1980 up to the current point in time.
In response to Ms Ogden's request by letter dated 25 November 2015 the Applicant wrote:
To my knowledge, no Council files exist on Tahmoor Childrens Playground for the years 1920 to 1930 to 1940 to 1950 and up to about 1955, 1956 or 1957. Council would be in a better position to confirm that files do not exist for those years than I am and a competent search of Council's records would take approximately 1 minute.
My search of the Tahmoor Childrens Playground file/s is also intended to establish why Council changed the name of the playground to EMMETT PARK in 2013 without community consultation, noting that the land was purchased by public subscription.
The Applicant did not provide her consent to Ms Ogden's request that she "confirm that the scope can be amended to information dated between 1920 and 1970". Ms Ogden requested that Robert Szoszkiewicz and Margaret Ackerly undertake searches for the information requested. Those searches were completed by about 4 December 2015.
By letter dated 8 December 2015 Ms Ogden wrote to the Applicant stating:
The broad nature of your request, as it currently stands, requires an unreasonable and substantial diversion of Council's resources in searching for any relevant information. To explain further, the historic information held on Microfiche is broadly categorised and the films are not indexed. This means each roll of film requires examination in its entirety to locate any information relevant to your request.
I appreciate your preferred form of access is to view all documents and files yourself. However, the information sought requires assessment for any relevant public interest considerations prior to disclosure and some information is held in a format that can't easily be inspected by a member of the public and will require copying to print.
The time spent on processing the application to date is 16 hours. This time consists largely of the time spent viewing and retrieving relevant information held on microfiche and searching for information in Council's electronic document management system. At this point the searches are incomplete and given that searching for the historic information is extremely time consuming, on your current request parameters, I am unable to provide an accurate estimate of the amount of time required to finish processing your application.
I am writing to give you the opportunity to amend your application to refine and reduce the scope [GIPA Act, Section 60(4)]. I can be contacted on 4677 9728 should you wish to discuss your application.
In response to Ms Ogden's request the Applicant amended the scope of the access application to exclude microfiche documents. By letter dated 9 December 2015 she wrote:
I acknowledge receipt of Council's letter dated 8 December in reply to my letter dated 26 November 2015.
Council claims that my request "requires an unreasonable and substantial diversion of Council's resources in searching for any relevant information ... held on microfiche."
I have not asked to view microfiche files and do not wish Council to waste unnecessary time searching microfiche files, noting that my original request for the information commenced in February 2015. That is now ten (10) months ago.
I am seeking access to the Tahmoor Children's Playground file/s in hard copy in order to complete an historical project on the first 100 years of Tahmoor from 1917-2017. That hard copy information will give me access to resolutions made by Council regarding land purchased by the Tahmoor community through the Tahmoor Progress Association and other decisions made. Information from the period 1957/1958/1959 is 55 years old and any copyright material would have expired long ago.
I repeat my request for the information pursuant to the GIPA Act requested in writing on 19 November 2015:
"I request unsupervised access only to Council file/s on Tahmoor Childrens Playground purchased by the community, noting that the Information is required for literary purposes and was requested informally commencing in February 2015. No photocopying of any description is required pursuant to this request. I do not request access to microfiche. I seek access to hard files only."
Ms Ogden subsequently wrote to the Applicant and requested payment of an advanced deposit. On 17 December 2015 she wrote:
On 20 November 2015, you applied for access to certain government information under the Government Information (Public Access) Act 2009 (GIPA Act) held by Council.
I have estimated that the cost of processing your application is likely to be $690 based on 23 hours of processing time. To date, 15 hours has been spent and I estimate that a further 8 hours will be necessary to consider and compile the information you have requested.
My calculations are based on the following:
Application fee and 1st hour of processing $ 30.00
Next 22 hours @$30/hr $660.00
Total $690.00
Before proceeding any further with your request, I require a deposit of $330.00 being 50% of the estimated cost remaining, to be paid on or before 19 January 2016. Failure to pay by the due date means I may refuse to deal further with your application. You will also forfeit your application fee of $30.
Ms Ogden also provided a schedule of processing actions and times.
On 23 December 2015 the Applicant applied to this Tribunal for review of Ms Ogden's decision to request payment of an advanced deposit.
On 20 January 2016 Ms Ogden purported to determine to refuse to deal with the access application. In her Notice of Decision she stated:
1. Summary of access application
On 20 November 2015, Council received your access application under the Government Information (Public Access) Act 2009 (GIPA Act), in which you sought access to the following documents:
"The file/s on Tahmoor Playground Cnr Larkin & York Streets Tahmoor."
On the 9 December 2015, after consultation with you, the scope was amended to exclude any information held on Microfiche.
2. Decision to refuse to deal with application
I am authorised by the principal officer, for the purposes of s, 9(3) of the GIPA Act, to decide your access application.
I have decided to refuse to deal with your access application under s. 60(1)(c) of the GIPA Act.
The reason for my decision is because you failed to pay an advance deposit of $330 by 19 January 2016 as requested in my letter dated 17 December 2015.
This decision is reviewable under s. 80(j) of the GIPA Act, as discussed in part 3 of this Notice.
It appears that at the time that she made that determination Ms Ogden was not aware of the application to the Tribunal seeking review of the decision to require an advanced deposit.
The Council concedes that there was no power to make the decision to refuse to deal with the access application because an application had been lodged with the Tribunal. It accepts that it should be set aside. In the circumstances, if it is necessary to do so, I determine that that decision is set aside.
The matter came before me for hearing on 19 May 2016 at which time I agreed with the Council that the access application, clarified by the Applicant's letter of 26 November 2015 did not narrow the scope of the request to exclude information dated before 1920 or after 1970. The Applicant had indicated that she did not think that the Council would hold information that is within the scope of her request "for the years 1920 to 1930 to 1940 to 1950 and up to about 1955, 1956 or 1957" but she left it to the Council to search.
I also formed the view that by indicating that her request was also intended to establish why the Council changed the name of the playground to Emmett Park in 2013 she had extended the scope of the request to include information dated at least to the time that the name of the park was changed.
In my view, this is a very broad request. There is correspondence in evidence to suggest that the Applicant was aware, or should have been aware, that many Council files are kept on microfiche. Prior to 9 December 2015 there was no correspondence in relation to the access application to suggest that the Council should not search microfiche. Prior to that date, there was no basis on which the Council should have excluded microfiche from its searches for information falling within the scope of the request.
I determined that the Respondent's decision to request an advanced deposit was reasonable and I affirmed the decision. The Applicant has requested written reasons for my decision. These reasons are provided in response to that request.
[3]
Applicable legislation
Section 68 of the GIPA Act provides:
68 Advance deposit for payment of processing charge
(1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an "advance deposit" ).
Note : The decision to require an advance deposit is reviewable under Part 5.
(2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency.
(3) The notice requiring an advance deposit must:
(a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and
(b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and
(c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and
(d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited.
(4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid).
Section 70 of the GIPA Act provides:
70 Result of failing to pay advance deposit
(1) An agency may refuse to deal further with an access application if the applicant has failed to pay an advance deposit within the time required for payment (unless the applicant has applied for review under Part 5 of the decision to require the advance deposit within the time required for payment of the advance deposit).
Note : The decision to refuse to deal further with an access application is reviewable under Part 5.
(2) An agency must give notice to the applicant of its decision to refuse to deal further with the application.
(3) The review under Part 5 of a decision to refuse to deal further with an application for failure to pay an advance deposit is to be a review of both the decision to refuse to deal further with the application and the decision to impose the advance deposit (unless the decision to impose the advance deposit has already been reviewed under that Part).
[4]
The evidence and submissions
The Council relies on the evidence of its Manager - Governance, Mr John Sproule, and its Information Management Team Leader, Ms Margaret Ackerly. Both Mr Sproule and Ms Ackerly provided statements and appeared at the hearing by telephone and were cross-examined. I note that the Applicant requested that both Mr Sproule and Ms Ackerly be present at the hearing and objected to them appearing by phone. I nevertheless determined that the witnesses could appear by telephone.
Ms Ackerly is responsible for overseeing the Council's Corporate Records. She has worked with the Council for 22 years. She stated that in 2005 Council began using an electronic data management system called TRIM for its record keeping. Generally, hard copy documents that are received by the Council are scanned and saved into a folder into the TRIM system. The Council keeps both hard copy files and TRIM files for property matters and development applications. From time to time the hard copy files are archived.
Some of the Council's older archived files have also been scanned into the TRIM system. Council records prior to 1989 are mostly kept as microfiche or microfilm records. The exception is that bound minutes of Council meetings and resolutions are stored in the strong room in the finance department of the Council administration building. Ms Ackerly stated that she would not ordinarily consider them to be part of a Council file. They are not visible in the computer record system or on a microfiche file.
The Council has index books which identify records received by the Council by reference to the Council file in which it would have been located and a reference to the microfiche roll where the record may be located now. To locate information on microfiche it is necessary to locate the correct microfiche roll and search for that part of the roll containing the information. The information that is held on a microfiche roll us not stored in chronological order.
Ms Ackerly's evidence is that she searched for files not Council minutes. The Council would not hold any hard copy files for records prior to 1989.
Microfiche or microfilm records can be printed and viewed as a hardcopy but they are kept as historical records and not as files in the traditional sense.
The Council's position is that there two searches were done in good faith on the face of what the Applicant had requested by her access application. The searches were undertaken by Ms Ackerly and Mr Robert Szoszkiewicz, the Council's facilities and recreation team leader.
The Council contends that the access application asked for access to its files on Tahmoor playground and while it indicated that no photocopying was required pursuant to the request, the request did not include any other limitations.
By a request dated 25 November 2015, Ms Ogden requested that Ms Ackerly undertake searches. She requested a response by 30 November 2015. Ms Ackerly had access to the microfiche records and conducted a search of those records as the Council's records prior to 1989 only exist on microfiche. The microfiche machine is linked up to a computer so there is a process whereby documents can be printed. Ms Ackerly took six hours searching back as far as she could for anything that anything to do with Tahmoor Park, Tahmoor playground or Larkin Street playground on the microfiche and microfilm. She worked backwards from 1989 because that is the date range of the microfiche. She located some documents which she printed. The only way she could get the information from microfiche was to print it or to save it electronically so it could be viewed on a computer.
She provided Ms Ogden with 145 pages of printed documents comprising anything she had been able to locate concerning Tahmoor Park, Larkin Street or Tahmoor playground. The earliest document that she found was a 1948 document. She said that when she provided those documents to Ms Ogden she was not aware that the Applicant had not requested any photocopying.
By a request dated 2 December 2015, Ms Ogden requested that Mr Szoszkiewicz undertake searches. She requested a response by 4 December 2015. Mr Szoszkiewicz searched a number of TRIM files. Those files were searched due to their reference to Emmett Park. This was in response to the information that the Applicant provided in relation to her access application that stated:
My search of the Tahmoor Childrens Playground file/s is also intended to establish why Council changed the name of the playground to EMMETT PARK in 2013 without community consultation, noting that the land was purchased by public subscription.
In an undated Certification Of Document/Information Search Mr Szoszkiewicz certified that he had:
arranged for a search to locate and copy document/information in relation to the subject GIPA application.
The actual time taken to locate and copy documents was 7 hour/s.
A thorough and complete search was undertaken on file/s …
5128, 5816, 6755, 8346-20, 1842, 5492, 5369-3, 5048-3, 5872, 2199, 2157, 4577.
The above TRIM Files were searched due to their reference to Emmett Park. No confidential items were printed.
Mr Szoszkiewicz's searches took seven hours. He located some documents and printed them.
The Council contends that Mr Szoszkiewicz searched TRIM files in good faith on the basis of the Applicant's information. The search included information taking into account the reference to 2013 and Emmett Park. As noted above, Ms Ogden had suggested that the Applicant limit the scope of the request to the timeframe 1920 to 1970 but the Applicant had not done so. The Council contends that the access application was not limited in scope. This was the case notwithstanding the comment that the Applicant had made in her 11 September 2015 email to Mr Malone.
The Applicant contends that the scope of the search that Mr Szoszkiewicz undertook was excessive. She stated, for example, that Emmett Park tennis court has got nothing to do with Tahmoor children's playground. It is a separate area. She argued that a request for information concerning Tahmoor playground is not a request for information concerning Emmett Park.
The Council concedes that by here 9 December 2015 letter the Applicant reduced the scope of her request to exclude microfiche files and that it should not have done any work on microfiche after it had received that letter. However, it contends that the microfiche searches had already been completed at that time.
In response to that point the Applicant contends that she narrowed the scope of her request in her letter dated 25 November 2015 when she wrote:
To my knowledge, no Council files exist on Tahmoor Childrens Playground for the years 1920 to 1930 to 1940 to 1950 and up to about 1955, 1956 or 1957. Council would be in a better position to confirm that files do not exist for those years than I am and a competent search of Council's records would take approximately 1 minute.
However, she conceded that this could be understood as indication "I think that this is the case, but you should check it".
The Applicant submitted that her reference to wishing to clarify why the Tahmoor Children's Park name was changed to Emmett Park in 2013 was not a GIPA request. That being the case, she contends that the Council should not have undertaken a search for that material.
I do not accept that submission. In my view the Council was entitled to rely on the clear words of her 26 November 2015 letter. This letter was provided in response to a letter from the council seeking clarification of the scope of the request. It was reasonable for the Council to undertake searches that would include information relating to "why Council changed the name of the playground to Emmett Park in 2013 without community consultation". In the circumstances, the Council should not reasonably have limited the searches to information created prior to 1970.
As noted above, I formed the view that the access application is a very broad request. The scope of the request was not narrowed to exclude information dated before 1920 or after 1970. The scope included information dated at least to the time that the name of the playground was changed to Emmett Park in 2013. Prior to 9 December 2015 the request was not narrowed to exclude information held on microfiche.
The searches that Mr Szoszkiewicz undertook of the TRIM files included information relating to Emmett Park. The Council contends that it was required to undertake that search because of the scope of what was on the face of the access application. The Council searches have identified over a thousand pages of documents as falling within the scope of the request. There are 145 pages of microfiche records and they have been printed. The remaining documents are those located by Mr Szoszkiewicz when he looked through the TRIM files.
In contrast, the Applicant contends that it is nonsense to suggest that the name change from Tahmoor Children's Playground to Emmett Park would be found in these 1,000 pages.
In relation to the time already spent on processing the access application the Council contends that Mr Szoszkiewicz and Ms Ackerly respectively spent 7 hours and 6 hours undertaking searches for the information requested. A further two hours was spent by Ms Ogden in:
a. Initial assessment of the Application, particularly the scope of the request - 30 minutes;
b. Sending an acknowledgment letter and request to clarify the scope of the Application to the applicant - 30 minutes;
c. Requesting internal searches to be undertaken -15 minutes;
d. Preliminary consideration of documents located - 15 minutes;
e. Other administrative tasks, particularly, writing to the applicant requesting a reduction in scope - 1 hour.
The Council contends that all of the tasks undertaken by Ms Ogden were required as part of the proper consideration of the access application. It submits that there is no evidence to suggest that the tasks have not been undertaken efficiently and no basis for the Tribunal to set aside or vary Council's decision in this regard.
The Council also contends that further work needs to be undertaken to finalise the application. The documents need to be reviewed and consultation may be necessary in relation to some of those documents. There also needs to be a notice of decision. So even if the microfiche records are excluded, a lot of the other documents need to be considered.
The Council estimates that it will take a further eight hours to finalise the application. This estimate includes four hours for consultation; two hours to prepare notice of decision and two hours to prepare schedules.
Mr Sproule's evidence was that the four hours consultation would include consulting with third parties. Those third parties would include the Emmett Park tennis club and persons concerned with putting up a statue for a police dog. He said that it would be consultation in relation to individuals who can be identified from information contained within the documents that have been recovered.
[5]
Discussion
As noted above, it is my view that the access application request was broad and it included the files that were stored on microfiche. The Council was not only entitled to look at the microfiche but they were obliged to do so in dealing with the application. The Council was subject to timeframes that apply to the determination of the access application. Therefore Ms Ogden needed to act quickly to arrange for the conduct of searches to ascertain what information is held by the Council that comes within the scope of the request. She was entitled to rely on a reasonable interpretation of the scope of the request by reference to the initial access application and the Applicant's letter of 26 November 2015 as clarification of that request.
By her letter of 9 December 2015 the Applicant removed the microfiche files from consideration. However, it is clear that by the end of November 2015 Ms Ackerly had already finalised the microfiche search. That search was undertaken in response to the access application as clarified in the letter of 26 November 2015. Any expenses that the Council incurred in searching microfiche files prior to receipt of the letter of 9 December were incurred necessarily as part of the determination of the access application.
Any issues in regard to whether or not the Applicant was given the opportunity to view the microfiche files or whether the council should have printed the information and/or provided it to the Applicant does not arise for consideration in regard to the expenses that were incurred prior to 9 December 2015.
As noted above in relation to the searches undertaken by Mr Szoszkiewicz, I am satisfied that the scope of the request extends to at least sometime around 2013. It was necessary for Mr Szoszkiewicz to search for information concerning Emmett Park. He has certified the searches that he undertook. There is no basis on which I would not accept that he has undertaken the work he identified as having been completed. He provided Ms Ogden with around 900 pages of documents that were identified from his search.
I accept the Applicant's argument that Mr Szoszkiewicz's search for information concerning Emmett Park would have captured information that is outside the scope of her request regarding the renaming of the playground. However, in my view it was necessary to undertake the broad search in order to ensure that all relevant material was captured. The information that was located would then need to be assessed for relevance.
I am satisfied that further work remains to be undertaken as part of the determination process. The extent of consultation that would be necessary is related to the construction that is given to the access application and the scope of the request. As I have stated, I consider that the request was a broad one. If the request was limited to the historical record there may well be no need for consultation. However, the request was not limited in that way. I accept that the Applicant did not intend the scope of the request to be unlimited. However, the Council was entitled to interpret it as a very broad request.
The advanced deposit was requested on the basis of the assessment of the work that has already been undertaken and the estimate of the work that is still required to be done. It is possible that the estimate of the work to be done is not accurate. For example it might be reduced if the estimated consultation period proves to be unnecessary. However, that cannot be determined until the material is assessed. If consultation was ultimately found to be unnecessary the Council would have to refund money to the Applicant.
If however, the Applicant were to limit her request to exclude information that was created after a given date, for example 1970, the amount of necessary consultation would be drastically reduced. If that were the case, the estimate of the work that needed to be done might be reduced.
On the evidence before me I am satisfied that the work that has already been undertaken was necessary in order for the Council to comply with its obligations under the GIPA Act. That includes the searches that Ms Ackerly and Mr Szoszkiewicz undertook and the work that Ms Ogden undertook. Based on my finding in relation to the scope of the request, this was work that the Council was entitled to do and it had to do. It follows, in my view, that the Council is entitled to charge the fees in relation to that work. The decision to request payment of an advanced deposit request is justified is affirmed. The date for payment is extended to 16 June 2016.
If the requested advanced deposit is not paid by 16 June 2016, the Council has the right to make a determination to refuse to deal further with an access application pursuant to section 70 of the GIPA Act.
[6]
Orders
1. The decision of the Respondent to refuse to deal with the access application is set aside.
2. The decision of the Respondent to request payment of an advance deposit is affirmed. The date for payment is extended to 16 June 2016.
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: 12 June 2018