Styles v Wollondilly Shire Council - [2016] NSWCATAD 182 - NSWCATAD 2016 case summary — Zoe

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Styles v Wollondilly Shire Council

[2016] NSWCATAD 182

NCAT Administrative and Equal Opportunity|2016-05-19

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2016-05-19

Source

Original judgment source is linked above.

Judgment (6 paragraphs)

[1]

REASONS FOR DECISION

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.

[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.