Taylor v Destination NSW

NCAT Administrative and Equal Opportunity|2019-08-08

Background

In the decision of Taylor v Office of Destination NSW [2018] NSWCATAD 195 ('the 2018 Decision') I determined at [99]: In considering the remedies expressed in Beesley for the Tribunal's dissatisfaction with the agency's evidence of searches, I note that this Tribunal has already directed the Respondent to conduct additional searches. Bearing in mind the Tribunal's objects expressed at s 3 of the Civil and Administrative Tribunal Act 2013, making the same order a second time would be inappropriate. The utility of production of better evidence as to searches would also be questionable in the circumstances. The option of referral by the Tribunal's President to the Ombudsman is available under s 35D of the Ombudsman Act 1974. There is also an option for the referral of the Respondent to the Information Commissioner pursuant to s 111 of the GIPA Act in relation to systemic agency issues of compliance with the GIPA Act. However, prior to such a referral, in according with the rules of procedural fairness, the Respondent should be afforded the opportunity to make submissions.
The Information Commissioner and the Applicant filed submissions on the issue of referral on 20 September and 24 September 2018 respectively (referred to hereafter as "Applicant's Submissions" and "IC's Submissions").
The Respondent appealed my decision on various grounds. In the appeal Destination NSW v Taylor [2019] NSWCATAP 123, the Appeal Panel at [89] stated: In our view, the Tribunal has not breached the rules of procedural fairness and this ground of appeal fails. We will direct the Registry to arrange a suitable date and time for the matter to be listed before the Member at first instance for directions to case manage the issue as to whether this matter should be referred to the Ombudsman or the Information Commissioner.
Following the appeal, the matter was returned to me for case management on the issue of whether a referral should be made to the Ombudsman or Information Commissioner. Pursuant to the Tribunal's orders, the Respondent provided submissions on 31 July 2019 addressing the question of whether it should be referred to the Ombudsman or the Information Commissioner in relation to any matters arising from the Respondent's handling of the Applicant's access application under the Government Information (Public Access) Act 2009 ("the GIPA Act"). It also filed an affidavit of Neville D'Costa dated 22 July 2019 and referred to an earlier affidavit by Mr D'Costa filed in the appeal proceedings on 29 October 2018.

Legal principles

The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (section 3(1)(a)); and by giving members of the public an enforceable right to access government information (section 3(1)(b)). Section 3(1)(c) of the GIPA Act provides that access to government information is restricted only when there is an overriding public interest against disclosure. This limitation is reflected in the presumption in favour of disclosure of government information set out in section 5.
The GIPA Act sets out obligations on agencies in dealing with applications for access to government information, and in their determination of access applications. The Tribunal's decisions in Hurst v Wagga Wagga City Council [2011] NSWADT 307 and in Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 recognise that the presumption is in favour of disclosure of information, and confirm that the test in section 13 of the GIPA Act requires decision-makers to: 1. identify relevant public interest considerations in favour of disclosure; 2. identify relevant public interest considerations against disclosure; 3. attribute weight to each consideration for and against disclosure; and 4. determine whether the balance of the public interest lies in favour of or against disclosure of government information.
Section 16 of the GIPA Act requires agencies to provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available. Section 16(2) sets out the specific advice and assistance that must be provided to a person who requests access to government information.
Section 111 of the GIPA Act provides: NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
A referral under section 111 applies to a matter that indicates a systemic issue relating to the 'determination of access applications'.
Previously, the consideration of a discrete issue about how an agency has dealt with particular information (such as its manner of recording and maintaining CCTV footage), has not been considered to be a systemic issue for which the Tribunal will refer to the Information Commissioner: Shoebridge v Commissioner of Police, NSW Police Force [2013] NSWADT 302 at [61-62].
Section 111 does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from, or additional to, any administrative review proceedings: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52]. Allegations of a breach of the GIPA Act, including systemic breaches of the GIPA Act, do not provide a source of jurisdiction for the Tribunal: Zonnevylle v Minister for Education [2019] NSWCATAD 28 at [58]
Similarly with respect to referral under s 112 (report on improper conduct), the Appeal Panel has confirmed that the "good faith" test in section 112 also applies to section 111: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [58]. The Tribunal has no power to refer allegations that an agency has committed an offence under the GIPA Act, unless the conduct concerned also meets the test set out in section 112; and this same reasoning applies to section 111.

Consideration

In Taylor v Destination NSW [2017] NSWCATAD 272 at [57] I stated that determining what was the correct and preferable decision was: 57. …a difficult task in circumstances where the Respondent has failed in its obligations under s54 of the GIPA Act to consult with third parties, has incorrectly approached the application of s13 of the GIPA Act to categories of documents instead of information, has applied the public interest considerations in the table to s14 of the GIPA Act without filing evidence to support the submission as to why each relevant particular public interest consideration against disclosure applies to the information contained in each document, and has made submissions on categories of documents without specifying which documents fall into each particular category.
As a result I set aside the Respondent's first decision and remitted the access application to the Respondent to be determined with orders for the Respondent to do what I considered necessary to ensure compliance with the GIPA Act: 1. to confirm that the 79 documents produced confidentially to the Tribunal comprised all available information sought by the access application; 2. to engage in consultation with all relevant third parties to the information sought by the access application; and 3. to issue a reconsideration determination.
The manner in which those orders were complied with caused the Tribunal further concern, as addressed at [18] to [20] in the 2018 Decision: 18. In the internal review decision of 15 September 2016, the Respondent applied the public interest test to each of the six categories of documents identified as numbered items in the Applicant's access application, without specific reference to the documents containing the information caught by the requests in the access application. As noted in the Tribunal's reasons for decision in Taylor , this was a fundamentally flawed approach because the public interest test in the GIPA Act requires examination of the government information, to apply the public interest test to that information, and not to 'classes' or 'categories' of documents. 19. The Respondent has sought to rectify this approach in the reviewable decision by referring, by number, to each of the documents caught by each category. However, the Respondent has not identified for the Tribunal the specific information in each document which it says should be withheld on the basis of its concerns regarding disclosure, and that which can be released. The Respondent has instead applied the public interest test to the category of document, rather than identifying the relevant information in each document and applying the public interest test to the actual information. This approach attempts to short-cut the balancing exercise required by correct application of the GIPA Act. 20. At hearing on 30 January 2018, the Respondent was questioned by the Tribunal whether it could redact the 79 documents to release to the Applicant those parts of the documents which were not relevant to their concerns regarding disclosure. The Respondent submitted it would be a "futile exercise" for it to redact the relevant information from the 79 documents, requesting the Tribunal consider the whole of the document when assessing it for disclosure pursuant to the GIPA Act. Again, this is a flawed approach to application of the GIPA Act because it is asking the Tribunal to assess a document, rather than specific identified information contained within a document. It is the Respondent's obligation to identify the information contained in each document which it says should be withheld from the Applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour. It is then the Respondent's burden, pursuant to s 105(1) of the GIPA Act, to justify its decision through submissions and evidence.
In response to the Tribunal's order for it to conduct additional searches to confirm that there were only 79 documents in existence in answer to the access application, the Respondent stated in the reviewable decision that it "conducted electronic searches of its databases". However as noted at [93] to [96] in the 2018 Decision, the Respondent's actions in compliance with that order was unknown: 94. In submissions, the Respondent stated "It would be futile and not in keeping with the purposes of the GIPA Act to require an agency to carry out searches in response to an access application such as Mr Taylor 's when such searches would only identify information that could not be disclosed because there are overriding public interests against its disclosure. In the circumstances, searches for the documents and information sought by Mr Taylor would involve an unreasonable and substantial diversion of Destination NSW's resources." 95. I disagree. The fact that an agency believes there would be overriding public interest considerations against disclosure of information contained in certain documents does not impact on whether the agency is required to conduct the searches for that information, but rather whether the agency provides access. The agency is obliged to conduct the searches unless doing so would create an unreasonable and substantial diversion of resources. The content of the documents does not determine whether the diversion of resources is reasonable or unreasonable. 96. The 79 documents filed by the Respondent in answer to the access application, and the affidavit of Ms Chipchase annexing the consultation responses from third parties, identified to the Tribunal a number of documents which existed but had not been identified by the Respondent as a result of the searches ordered. These include those documents referred to above at [58], [61] and [63]. Although the reviewable decision asserts that additional searches were conducted by the respondent following the Tribunal's order of 12 September 2017, there is no evidence of what those searches entailed, the extent of those searches, or any explanation for why existing documents were not identified by the searches.
The affidavits of Mr D'Costa filed during the appeal proceedings and in contemplation of this referral decision go some way to explaining what, in fact, occurred in relation to the searches conducted by the Respondent, according to its policies and procedures. Mr D'Costa gave evidence that his method of dealing with access applications included the following: 14. My usual process when receiving an access application is as follows: i. Following receipt of an access application, I check to see if the formal requirements are met and it is accompanied by the correct application fee. If the formal requirements are not met, I write to the access applicant to notify them that the application needs amendment and/or the fee needs to be paid. ii. If the formal requirements are met, I log the access application in DNSW's computer system and assign it a reference number. I then send a letter acknowledging a valid access application to the applicant and the due date for a determination of the application. At this stage I also send the access applicant a copy of the IPC factsheet about review rights. iii. Next I conduct an initial scoping exercise to determine where information is located on DNSW's files, who the subject-matter expert(s) within DNSW about the information might be, whether there is any need to transfer the application, and whether there are any third parties who should be consulted. iv. I then conduct searches of DNSW's electronic files for documents responsive to the access application using key words. The only exception to this is if I don't have access to the files. In my role, I have access to most of DNSW's electronic files and I am highly familiar with their organisation. DNSW mostly maintains its information in electronic files - hard copy files are not regularly used. v. I also send requests to the individuals who are responsible for the corresponding type of work at DNSW to perform searches of records for information responsive to the access application. I do this as a back-up to the electronic searches I conduct, in case these individuals are aware of additional documents, or if I don't have access to the electronic file. Annexed and marked "C" are examples of the type of request to conduct searches that I send within DNSW. It has been redacted to remove the details of the particular access application. vi. I then collate the results of my searches and any other searches and review the documents to ensure the information is within the scope of the access application. vii. I then consider the public interest considerations for and against disclosure of the information that is within scope. I take into account any consultation responses and relevant personal factors of the application. I weigh these considerations and factors and make a determination as to whether any information is subject to an overriding public interest against disclosure, viii. Last, I prepare a Notice of Decision and schedule of documents to send to the applicant, with copies of any records to which access is given.
However the manner in which he dealt with the subject access application demonstrates that this "usual process" was not followed: 20. Based on my understanding of the scope of the access application, I ascertained that the relevant information was likely to be contained in DNSW's electronic folders relating to arts and entertainment events. I searched the relevant event development department folders located on the "T drive - Events" of DNSW shared drive system. I also searched DNSW's website, as I knew the event assessment criteria would be there as well other information responsive to the access application. I estimate, I spent about ten hours searching and processing the search results for this application.
Although the evidence referred to at [18] and [19] above is difficult to reconcile with the submissions made during the hearing as referred to at [94] of the 2018 Decision, the fact that there was no evidence provided at the time "of what those searches entailed, the extent of those searches, or any explanation for why existing documents were not identified by the searches" meant that I determined in the 2018 Decision that it was not the correct and preferable decision to order additional searches.
The failure to provide this evidence in response to, and as part of compliance with, the Tribunal's orders to conduct additional searches and issue a reconsideration decision, and the response provided at hearing to the Tribunal's inquiries about the searches, indicated to the Tribunal that there was a fundamental misunderstanding by the Respondent of what its obligations under the GIPA Act were to conduct searches for information (as opposed to categories of documents) in response to an access application.
Mr D'Costa stated: In relation to the criticism at [98]-[99] of the second decision, DNSW never understood that the adequacy of its searches was a real issue in the proceedings and did not realise it had an onus of proof to satisfy. Further, it did not interpret the Tribunal's orders of 12 September 2017 to require it to conduct extensive additional searches.
There were no orders for "extensive additional searches", only for the Respondent to confirm it had conducted the searches sufficient to comply with its GIPA Act obligations to provide the applicant with the information requested in his access application. The issue was not about an "adequacy of searches" but the absence of evidence before the Tribunal of what, exactly, had been searched in circumstances where the Tribunal had identified additional documents which were not within the 79 documents identified by the Respondent. The order therefore sought the confirmation it did, and to do so necessarily required searches to be conducted and the material produced to be compared against the 79 documents. According to his affidavit of 22 July 2019 Mr D'Costa did not conduct the searches again, instead directing others to provide him with records for comparison: As I had already searched electronic records, I did not undertake further searches of DNSW's electronic database in order to confirm or clarify that the information sought by the access applicant was contained in the documents listed in the schedule, as opposed to any other documents. I contacted the subject matter experts in relation to evaluations (as referred to at [44] of the decision) and funding agreements and KPIs (as referred to in [46] of the decision) and asked that they provide me with any records that might have this information. Once I received their responses I compared the records they provided to me against the schedule of 79 documents and confirmed that all of the documents were already listed in the schedule. I instructed Lander and Rogers Lawyers to send a letter to the Tribunal and applicant's solicitor confirming that DNSW had no further document responsive to the access application.
This was not expressed to the Tribunal at the time. Nor did Mr D'Costa explain that there were additional documents located beyond the 79 documents, but these were "considered to be outside of the scope of the access application", as he explained in his 22 July 2019 affidavit: These documents were all located as a result of the searches performed to respond to the access application, but were considered to be outside of the scope of the access application, so were not included in the notice of determination. It was not understood that agreements/contracts were within scope.
The determination of the scope of the access application was a matter for the Tribunal in the circumstances. Those documents should have been provided to the Tribunal, or at the very least identified in response to the order of 12 September 2017. As submitted by the applicant: However this evidence is contradicted by two things: • Mr D'Costa's own initiating correspondence with these third parties, at Tabs 4, 6 and 7 of the affidavit of Ms Chipchase, which refers to "Strategic Investment Agreements and contracts we signed" as documents purportedly caught by the application; and • As the Tribunal records in Taylor No.2 at [59] and [63], some contract/agreement documents were produced as part of the 79 documents. Indeed, there appears to be a particular inconsistency in approach, with the Strategic Investment Agreement for Global Creatures being included in the 79 documents, but the Strategic Investment Agreement for Bangarra Dance Theatre being excluded.
The Respondent's submissions explained the failings in dealing with the subject access application as "restricted to this access application and are not indicative of DNSW's systems. Any failings were attributable to the unique challenges that this particular access application posed to DNSW". Those challenges were submitted to include the ongoing negotiations with the Applicant to clarify or narrow the scope of the access application, and the agency's misunderstanding of the Tribunal's orders of 12 September 2017 to require it to conduct additional searches. The Respondent acknowledged that an approach to the access application that turned on "categories" or "classes" of documents, rather than engaging with the information contained in records, was not consistent with the GIPA Act and was taking steps to rectify its manual for dealing with access applications. It attributed its failings in these proceedings to be confined to this particular matter, caused by: 1. being a small agency with limited resources to deal with a large access application; 2. an out-dated GIPA Act manual, which was no longer in use; 3. a failure to engage with the Applicant at an early stage as to the scope of the information he was seeking; 4. confusion as to the scope of the access application, particularly once discussions commenced to try and resolve the proceedings in the Tribunal.
The Respondent submitted that none of these issues were systemic in nature and/or were now historical and would not have any on-going impact on the handling of access applications. It further submitted that the Tribunal could be satisfied that there was no utility in referring an agency to the Information Commissioner where there was evidence of learning and changes to its processes.
The Respondent submitted in summary: 3. The Respondent does not oppose referral of this matter to the Information Commissioner pursuant to s. 111 of the GIPA Act, if the Tribunal considers that to be the most appropriate course of action. However, in order to be empowered to make such a referral, the Tribunal must form a view that there is a "matter" which is "indicative of a systemic issue in relation to the determination of access applications" by the agency or agencies generally. 4. The Respondent's overall submission is that it is open to the Tribunal to find that any deficiencies in dealing with this specific access application do not indicate systemic issues in relation to the Respondent's determination of access applications. 5. In the event the Tribunal is minded to refer this matter, the Respondent submits that the appropriate referral is to the Information Commissioner under s. 111 of the GIPA Act, due to the Commissioner's specialist role and powers under the GIPA Act and the Government Information (Information Commissioner) Act 2009 ("the GIIC Act"). 6. The Respondent relies on the evidence of the affidavits of Mr Neville D'Costa dated 29 October 2018 and 22 July 2019.
Whilst Mr D'Costa's evidence of his "usual practice when processing access applications" does not demonstrate the existence of any systemic issues, the remainder of his evidence does not support a finding that this was, in fact, his usual practice. The Respondent's submission that these errors were limited to this application and were not indicative of the Respondent's systems cannot be sustained in circumstances where, on Mr D'Costa's evidence, the manual for dealing with access applications requires review and updating because it erroneously contains "an approach to assessing public interest considerations against disclosure based on categories or types of information", and this application is "the first time that the Respondent has been subject to review in the Tribunal in relation to its processing of GIPA access applications". Mr D'Costa's evidence supports a finding that, on balance, it is likely that other access applications were previously dealt with similarly and it was, in fact, a systemic issue.
The Information Commissioner, in her submissions dated 20 September 2018 at [55], took the view that at least the Respondent's flawed approach of applying the public interest test to documents or categories of documents rather than information, the determination not to conduct searches for information because the agency believed there would be overriding considerations against disclosure, and the failure to provide evidence of what searches were conducted, would qualify as systemic issues. I agree.
The Respondent submitted that in order to refer a matter to the Information Commissioner under s 111 of the GIPA Act, there must be evidence that is "indicative" of issues connected with the determination of access applications (plural) that is related to the agency's policies, practices and procedures, which is not isolated to a particular access application (singular). I agree, and consider that the erroneous guidance provided in the Respondent's manual and Mr D'Costa's failure to comply with his own "usual practice" outlined in his evidence in these proceedings, is indicative of broader systemic issues than this singular application.
Section 111 of the GIPA Act allows for the referral of an Agency to the Information Commissioner if there is an indication of a systemic issue relating to the determination of access applications. The Tribunal only needs to find that there is an indication or a possibility that a systemic issue exists. Any investigation or audit to confirm the existence of the systemic issue follows the referral, at the discretion of the Information Commissioner, once the agency has been referred.
I have found that the Respondent's erroneous approach to assessing categories of information or documents rather than the information itself, its determination to not conduct certain searches on an assumption there would be overriding considerations against disclosure, and the failure to provide evidence of what searches were conducted, would qualify as systemic issues. The reliance on an "outdated" Manual further supports a finding that these issues were systemic, rather than confined to this single application.
I accept the Respondent's evidence of the efforts it has gone to since the decisions in this matter to improve its compliance with the GIPA Act, and to improve its policies and procedures. I also note that the Respondent now reports to Treasury and can access the support of its GIPA Unit. However I do not consider that either of these factors makes a referral unnecessary or lacking utility.
The referral to the Information Commissioner is not a punishment. The Information Commissioner's monitoring and audit functions under the GIPA Act are directed to assisting agencies in connection with the exercise of their functions under the GIPA Act (section 17(c)); and to monitor, audit and report on the exercise by agencies of their functions under, and compliance with, the GIPA Act (section 17(g)). I agree with the Information Commissioner's submissions that she is well placed to assist the Respondent in addressing the systemic issues that have been identified by the Tribunal in the course of these proceedings, on the basis of a comprehensive regulatory framework and in accordance with her specialist role and powers under the Government Information (Information Commissioner) Act 2009 ('the GIIC Act').
I agree with the Respondent's submissions that a referral to the Information Commissioner is more appropriate than a referral to the Ombudsman: 54. …First, the matter is now completed in terms of disclosure of information to Mr Taylor and there does not appear to be any utility in the Ombudsman becoming involved. Secondly, although the Respondent was under a misapprehension as to its obligations under the GIPA Act & the steps it needed to take to comply with orders made by the Tribunal in Taylor No. 1, there is nothing to indicate that the Respondent acted improperly or in bad faith or deliberately misconstrued its obligations or those orders. Rather, the respondent made repeated attempts to try and clarify and resolve matters with Mr Taylor or his legal representatives. 55. Thirdly, even if the Tribunal were minded to issue a referral, the Information Commissioner is the appropriate body for that referral to be directed to, not the Ombudsman with its more generalist role. This is because the Information Commissioner has the appropriate specialist knowledge to deal with matters arising in relation to the GIPA Act and has been statutorily empowered to deal with matters under that Act. She has adequate powers to undertake inquiries or investigations into complaints, as evidenced by her earlier involvement in this matter to facilitate resolution of a complaint made by Mr Taylor. She also has a standalone power to conduct investigations, including powers to require the production of information (s. 25, GIIC Act) to monitor, audit and report on the exercise by agencies of their functions under, and compliance with the GIPA Act (s. 17, GIPA Act) and must report on any non-compliance with the GIPA Act to the Minister responsible for the agency and the agency's principal officer (s. 24, GIIC Act). Parliament has seen fit to provide the specialist function of general oversight of the GIPA Act and, in particular, scrutiny of compliance with the Act, to the Information Commissioner. As noted above, the Tribunal's criticisms in this matter were not restricted to the adequacy of search, but also general issues connected with DNSW's understanding of and compliance with the GIPA Act. 56. Fourthly, the Information Commissioner is empowered to furnish information to the Ombudsman if the Commissioner is of the opinion that the information relates to conduct of an agency that could be the subject of a complaint under the Ombudsman Act 1974 (s. 31, GIIC Act). Accordingly, if, in the exercise of her functions and powers, the Commissioner forms the view there remains a matter appropriate for investigation by the Ombudsman, she also possesses a power to refer that matter to the Ombudsman.
I consider it is appropriate to refer the Respondent to the Information Commissioner for assistance in understanding and complying with its obligations under the GIPA Act, particularly in determining access applications.

Order 1. The Respondent is referred to the Information Commissioner pursuant to s 111 of the GIPA Act in relation to the systemic issues identified in these proceedings.

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: 22 May 2020

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Judgment (5 paragraphs)

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Cited By (13)