Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 | Case summary

NCAT Administrative and Equal Opportunity|2016-10-11

The Applicant's position

The Applicant is to establish that it is reasonable to expect that the OEH would hold other information and to identify what that information it is.
Ms Coghlan stated that water quality reports were completed. There were reports that were done by the Jenolan Caves leaseholder. There were also reports prepared by experts on behalf of the Trust, and those reports were provided to the OEH. She submits that the OEH should have a copy of those reports and that related information is not excluded by the narrowed scope of this request.
The Applicant is seeking any documents in relation to those reports. For example correspondence, internal memos and file notes. Ms Coghlan stated that the Applicant has the expert reports but does not have the related information.
In regard to any searches that the OEH should have undertaken, Ms Coghlan suggested that searches could have been undertaken with respect to the relevant ministries that dealt with the water quality issue, for example the Prime Minister, Health Ministers, the relevant Member for Blue Mountains, the Member for Bathurst and the various relevant Ministers for the Environment. She stated that the Applicant had presumed that Ministerial documents would be held by OEH and not by the Trust because OEH is the overarching body and the Trust is small. He not been advised that the OEH did not hold the Ministerial papers and that is why he decided to continue with the application to the Tribunal.
In response to that suggestion Ms Moore submitted that files relating to that type of ministerial correspondence would be held by the Trust because it would have been their correspondence to the Minister. In any event, if the OEH held a ministerial correspondence file that dealt with water quality, it would have been captured by Dr Donef's searches. Ms Moore referred to a number of Ministerial documents that were identified through those searches and they are all held by the Trust.

Discussion

It is common ground that the scope of the access application was narrowed at the case conference held on 26 April 2016. The Applicant agreed that records held by the Jenolan Caves Reserve Trust are excluded.
On the basis of what I have before me it is clear that this matter turns on a question of whether the searches that were undertaken by the agency were sufficient and reasonable.
The OEH relies on the decision by Dr Donef. In that decision Dr Donef outlined the searches that were undertaken. It seems to me that the efforts that were made by the agency to ascertain whether or not it holds the information that has been requested were thorough.
Ms Coghlan has identified other information that she contends would be expected to be held by the agency and which should have been located. This includes ministerial and other correspondence, internal memos and file notes. In my view, if that information is held by the OEH, it should have been captured by the searches that were undertaken. That being the case, it seems to me that there were reasonable and sufficient searches undertaken by the agency to find the information.
I am satisfied that the information that has been identified by the Applicant, but which has not been provided, is information that would be expected to be held by the Trust and therefore it is excluded from the scope of this request.
I cannot see that there would be any value in requiring the agency to conduct further searches. I do not think that it is likely that further searches would locate any additional information that is within the agreed scope of the request.
However, it is possible that a further request to the Trust would be successful in locating the additional information that the Applicant is seeking. As noted, information held by the Trust is outside the scope of this application.
That being the case, I think that the decision that the information that was requested is not held by the OEH is the correct one and therefore it should be affirmed.

Order The decision that the information sought by the Applicant is not held by the Office of Environment and Heritage is affirmed. 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 January 2017

Sufficiency of search

In Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 at paragraph [11] Isenberg JM applied the approach to sufficiency of search as had been applied under the Freedom of Information Act 1987 ("the FOI Act"). In doing so, she applied decision of Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. In Hemeon at paragraph [18], O'Connor DCJ adopted the Information Commissioner of Queensland's approach to sufficiency of search issues as discussed in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. In Shepherd the Information Commissioner said at paragraph [19]: [T]here are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency …; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
I agree with that approach. In relation to the first limb of the test, it is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Camilleri at paragraph [13] citing Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 where O'Connor DCJ stated at paragraph [69]: 69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.

Templeton v Office of Environment & Heritage

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