Turner v Legal Aid Commission NSW

Course of matters before Tribunal

1. Subsequently three applications for administrative review were filed with the Tribunal as set out in paragraph 4 (above). The matters were subsequently case managed by me from about the third quarter of 2016 at a series of Case Conferences and subsequent Directions Hearings. The initial approach (to which there was agreement of the parties) was to see if the matter could be resolved prior to hearing. In this regard the Tribunal was guided by the guiding principle under section 36 (1) of the Civil and Administrative Tribunal Act 2013. 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. Specifically the Tribunal noted that the respondent was not relying on any grounds to withhold the information but rather accepted that the applicant had a lawful right to the information and would use its best endeavours to comply with his access requests. Suffice to say that having made its initial (and review) decisions, and noting the views of the Information Commissioner (where applicable), the respondent was under no obligation to do any more than run their case at hearing, but in a collaborative way sought (on my observation) to try and resolve the matter to the applicant's satisfaction.
3. As a result of this approach a number of 'discovery type' orders were made at directions hearings in that the respondent undertook to write to third parties seeking information as to whether they held copies of the relevant documents sought by the applicant. These 'third parties' were not agencies as defined by GIPA, but arms of the legal profession who had been allocated cases and briefs by the respondent on behalf of the applicant. Those courses of action did not discover any further documents from practitioners who had been briefed by the respondent on behalf of the applicant.
4. The respondent conducted further searches and made arrangements for the applicant to attend their premises and in effect - go through the relevant holdings himself by prior appointment/arrangement. It appears that due to the fact that the applicant resided in regional New South Wales, this course of action was not fully utilised. An earlier hearing date of late 2016 was vacated as it was agreed that the matters should in effect run together, that is being heard together rather than any formal order of consolidation of proceedings.
5. On 18 October 2016 the respondent agreed to release seven volumes of material (concerning all three applications) to the applicant. This material comprised the original material sought and further material, which the respondent submitted covered their dealings with the applicant on criminal law matters. In December 2016 all three matters were fixed for hearing over two days in March 2017. At these directions the Tribunal requested that various employees of the respondent, as identified from the material, provide evidence in the proceedings. This course was agreed by the respondent and relied on the Tribunal's powers under section 46 of the Civil and Administrative Tribunal Act 2013. (the CAT Act) 46 Powers in relation to witnesses (1) The Tribunal may: (a) call any witness of its own motion, and (b) examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and (d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings. (2) If the Tribunal decides to call a person as a witness under subsection (1)(a), the Tribunal may: (a) seek to procure the voluntary attendance of the witness before it by notifying the person in such manner as it thinks appropriate in the circumstances, or (b) issue a summons (or direct a registrar to issue a summons) to compel the attendance of the person before it. (3) Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.
6. The basis of this direction being that these officers were listed at various times as having carriage of the applicant's legal matters and appeared on his behalf in the legal proceedings at various times.

Jurisdiction

1. There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction. In addition there is no dispute that the applications were filed within time, as the matters were lodged within the period provided for by the GIPA Act in respect of a Tribunal Review following a review by the Information Commissioner, (proceedings 2016/00377963 and 2016/00378034) in accordance with section 101 (2) of the GIPA Act. In respect of application 2016/00378157 the application was filed within the period provided by section 101 (1) of the GIPA Act. (This matter followed an IPC review on 18 May 2016 which recommended a fresh decision by the agency. The agency made a fresh decision on 22 June 2016). The Tribunal NCAT now presents the final medium of merits review.

The Legislative Provisions

1. The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 the following outline of the provisions is provided: 5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner. However I note that whilst these provisions would normally apply to an agency decision (if withholding any information) those matters do not principally concern these current reviewable decisions. However, the general import of the objects, the presumptions and onus and what constitutes government information, remain relevant.

Hearing of matter before the Tribunal

1. The matter was heard over a number of sittings of the Tribunal. The applicant was self-represented and the respondent was represented at the hearing by the Crown Solicitor's Office. On the first day of the hearing the applicant was unable to attend in person, and as a result appeared by telephone. Due to a number of unavoidable disruptions this increased the time that it took for the hearing.
2. The respondent presented two witnesses who gave evidence at the hearing, and the applicant himself also was permitted to give evidence near the conclusion of the hearing. Due to the nature of GIPA Act proceedings and the fact that the respondent has the onus to make their case, that evidence of the applicant predominantly concerned the request to make an oral statement on oath.
3. The applicant's grounds for review were as follows:

• 2016/00377963 '1. The agency had failed to disclose material in its possession contravening sections 114,116 and 120 of the GIPA Act. 2. The agency disclosed manufactured documents Crimes Act 1900 s 317 and 318 and ERISP items.'
• 2016/00378034 '1. The agency breached sections 114 and 120 of the GIPA Act 2009 in respect to the applicant's application. 2. The agency breached sections 307c, 317 and 3108 of the Crimes Act 1900. 3. The agency failed to disclose information held by the agency, requested by the applicant.'
• 2016/00378157 '1. I disagree with the decision made by the agency. 2. The information requested is in existence and had been used in a court of law (trial etc.) and laboratory analysis prior.'

Respondent's written evidence

1. The respondent filed a number of affidavits in the proceedings in addition to written submissions. The following affidavits were filed and served in the proceedings but not read, however they were referred to in submissions:

• Affidavit of J Witmer affirmed 30 January 2017.
• Affidavit of T Reynolds affirmed 31 January 2017.
• Affidavit of R Kozanecki affirmed 31 January 2017.
• Affidavit of M Schneider affirmed 31 January 2017.
• Affidavit of R Ikaafu affirmed 1 February 2017.

1. The affidavits provided a similar and consistent view as to the deponent's knowledge of representing the applicant and carriage of files. Reference was made to the 'briefing out' of the applicant's matters to a private firm (as per paragraph 11 above), and views provided on usual practice of the respondent to not retain forensic items/materials or exhibits.
2. The respondent sought to read the following two affidavits:

• Affidavit of S. McAtee sworn 3 November 2016 Exhibit 'R-1'.
• Affidavit of L. Raman affirmed 2 February 2017 Exhibit 'A-2'.

Applicant's written evidence

1. The applicant sought to file a large amount of material across the three proceedings. Some of this material was duplicated, and some of it arose from material identified during other GIPA Act reviews involving other agencies. Whilst it was open to object to some of the written material, it was agreed that it could be received into evidence without objection and that the Tribunal should deal with the material after considering submissions as to weight.

• Exhibit 'A-1' comprising a volume of material filed 27 May 2016 attaching copies of primary material.
• Exhibit 'A-2' comprising a signed statement dated 30 July 2016 and attached summary / submissions filed 5 August 2016.
• Exhibit 'A-3' comprising a signed statement dated 6 September 2016 filed 9 September 2016.
• Exhibit 'A-4' comprising material dated 8 August 2016 (Filed 9 September 2016) attaching copies of primary material.
• Exhibit 'A-5' comprising a signed statement of 12 September 2016 (filed 13 September 2016) attaching part of a Court transcript.
• Exhibit 'A-6' comprising a signed statement / submission by the applicant dated 28 October 2016 (filed 8 November 2016) attaching noted up primary material under references 'Arg'.
• Exhibit 'A-7' comprising signed submissions of either August or November 2016 referring to respondent's material of November 2016.
• Exhibit 'A-8' comprising written submissions dated 18 November 2016 (filed 23 November 2016) attaching primary material.
• Exhibit 'A-9' comprising signed material under heading 'Issue of consolidation' dated 22 November 2016 (filed 30 November 2016).
• Exhibit 'A-10' comprising signed submissions dated 18 December 2016, attaching 4 annexures of primary material (filed 22 December 2016).
• Exhibit 'A-11' comprising signed submissions dated 17 March 2017 (filed 21 March 2017) attaching primary material.
• Exhibit 'A-12' comprising primary material (filed 9 May 2017).
• Exhibit 'A-13' comprising Corrective Services primary material filed 9 May 2017.
• Exhibit 'A-14' comprising correspondence on behalf of NSW Attorney General to applicant dated 16 December 2011 (filed 9 May 2017).
• Exhibit 'A-15' comprising schedule of forensic samples / exhibits (filed 9 May 2017).
• Exhibit 'A-16' comprising submissions / critique of government agency dealings with applicant's information (prepared for GIPA Act application lodged 14 November 2015), filed 9 May 2017.
• Exhibit 'A-17' being further copies of relevant primary material (filed 9 May 2017).

Respondent's evidence at hearing

1. The respondent opened its case first as it bears the onus of establishing that the decision under review should be affirmed. The respondent's Solicitor submitted that the affidavits set out at paragraph 23 be read, and both deponents subsequently gave evidence before the Tribunal at hearing.
2. In electing to only call two witnesses the applicant raised concerns that in his view the respondent needed to address and refute the matters that he had raised during the history of the matter. However the respondent submitted that as it was their case to make, then they bore the risk but were content to bear that risk, if they had not provided sufficient evidence to discharge their burden. This was summarised by a submission that 'if we haven't called what we need to call we lose.'

Respondent witness 1: S McAtee

1. The respondent submitted that paragraphs 8, 9 and 11 of the 'McAtee Affidavit' (R-1) were strongly relied upon in supporting their case that the searches and attempts to locate material were sufficient. Paragraph 8 of 'R-1' states: 8. I conducted a search within the Respondent's case management system, CASES, and the Respondent's grants management system, ATLAS, and located the following paper and electronic files which relate to the subject GIPA application. 2008132360 Local Court Sutherland and District Court of NSW - linked to file ref' 08C026055 2008425940 Local Court Parramatta - linked to file ref. 08C026055 2009669263 Court of Criminal Appeal - linked to file ref. 09C036322 2012188873 Court of Criminal Appeal - linked to file ref. 12C053444 2012242628 SNPP Review (after sentencing) - linked to file ref. 12C053444 2013244440 Duty representation at Supreme Court ref. no. H. 34968816 08C026055 District Court of NSW (Parramatta) - linked to above CASES file ref. 2008132360 09C036322 Court of Criminal Appeal - linked to above CASES file ref. 2009669263 12C053444 CCA - SNPP Review- linked to above CASES file ref. 20122421628
2. Paragraphs 9 and 11 of Exhibit 'R-1' state: 9. I conducted a search of the relevant paper and electronic files but did not locate any of the items requested in requests 1-10 of the GIPA Application. … 11. In the course of preparing this Affidavit, I conducted a further search of the relevant paper and electronic files of the Respondent and confirm that I did not locate any of the requested items 1-10 of the GIPA Application.

A summary of the witness' oral evidence is as follows:

1. In evidence-in-chief the witness adopted her affidavit as true and correct to the best of her knowledge.
2. In cross-examination the witness was asked many questions by the applicant. Her evidence was that she is a Solicitor in the Legal Policy Branch of Legal Aid and conducted the internal review of the respondent's matters. She had no involvement in any of the applicant's earlier applications. Her search was limited to items identified from the two systems.
3. The witness was specifically asked whether she read the 'assisting materials' from the applicant. The witness advised that she looked at the applicant's application/request and the IPC information. When asked again specifically whether she utilised the applicant's written typed request the witness referred the Tribunal to annexure 'A' of her affidavit.
4. The witness gave evidence that when she determined the GIPA application she had before her the application form, the 58 pages and 56 pages of annexures from the applicant. Her evidence was that she did not refer to them in a great deal of detail as she had identified what she was looking for elsewhere.
5. The witness stated that she identified items 1-10 from the 58-page application form. The references in those items in her view didn't add anything to what she was looking for - and as a result didn't pay a great deal of attention to them. She commenced a preliminary 'go through' to clarify what was there. The witness was asked whether she came across a District Court opening address and transcript in respect of the applicant's (Item 5) concerning the door from unit 5 of the crime scene. When asked 'did you see those documents in your searches?', the witness answered, 'If that formed part of the 56 pages then yes.'
6. A series of further questions were directed at the witness concerning the manner and results of searches. The witness was asked whether she saw any forensic records 'hanging around', whether she did anything improper with those records, or whether she knew of anyone else doing anything improper with those records, to which the witness answered 'No'.
7. The witness gave evidence clarifying some of the Legal Aid referencing systems: the numbers without 'C' are numbers from the Cases System which refers to work performed by in house lawyers. The numbers with a 'C' are from the 'Grants' and 'ATLAS' system. 'C' documents relate to applications for a grant of legal aid.
8. Reference was made to a '$100,000.00 medical report'. The witness gave evidence that she saw no such report in her searches. The applicant questioned the witness about paragraph 11 of her affidavit. The witness stated again that she did not find any evidence of 'forensic material/evidence', specifically in respect of file: 08C026055. The witness stated that all of the material on that file relates to the District Court Parramatta trial.
9. At this stage the applicant began stressing a point (repeated in similar fashion throughout the proceedings) concerning cases held or referenced to the Downing Centre (Sydney) and/or Parramatta. The witness stated that whilst the District Court at Parramatta is recorded there, the matter was dealt with at committal at the Local Court (sitting at Parramatta), however the matter did not proceed to a committal for trial at Parramatta. Upon examining the file the witness noted that the continued Parramatta reference was an error and that the matter was heard at Sydney.
10. Various other questions were put about the detail and nature of the searches for information, concerning boxes ('1 and 2') which the witness did not recall the specifics of. When asked whether she did any other searches other than the paper or electronic searches referred to in her affidavit, whether she called or talked to the solicitors who had carriage of the matter, the witness said 'no'.
11. After an adjournment more questions about the searches were put to the witness. These questions focused on detail and illustrated the applicant's comprehensive knowledge of the forms and detail of the documents that he had obtained from many agencies under the GIPA Act. The witness was asked whether she recognised some of this detail, e.g. a specific file number, to which she answered that she recognised the form of the number being an 'ATLAS 2008 Grant File'.
12. In re-examination the witness was asked about her evidence concerning the lack of any direct inquiries with Legal Aid Solicitors. The witness clarified that she did speak to Ms Raman (witness 2) who is a Legal Aid solicitor, but not any solicitor who had carriage of Mr Turner's criminal cases. No other solicitors were spoken to.
13. The witness noted that the 'contentious' file was a Sydney file. A paper file where ATLAS records all that information.
14. A question arising was whether the names 'Parramatta' etc. had any bearing on the search process. The witness answered no, and that the searches show file numbers and client name.

Respondent witness 2: L Raham

1. In evidence-in-chief the witness adopted her affidavit as true and correct.
2. In cross-examination the witness was asked about the search processes to which she replied that she believed that they were sufficient. In respect of the GIPA process the witness identified files, located files and then gave the applicant the material. Where there were queries the witness spoke to clerical officers. In respect of file 0-8C034752 initially the witness could not locate the file. However later she found it, but there was reference to a different client ('A.L.').
3. The witness gave evidence that the initial search would be conducted by name and gender. If two or three names came up in the results then she would move to a 'date of birth' search.
4. In explaining the presence of the 'A.L.' file material the witness advised that that client's letter had been mistakenly placed in the Turner file. The witness did not state that there was a clerical error arising from this, but rather than the filing of the letter in Mr Turner's file, itself was an error.
5. The witness confirmed that she did not speak to the solicitors who had carriage of the applicant's matters until such time as she obtained the affidavits referred to at paragraph [21] (above).
6. The witness gave evidence that she had previously used the term 'Parramatta' incorrectly. Her evidence was that the CASES File Numbers are the matters dealt with by the 'in house' Legal Aid Lawyers.
7. Various references were provided by the applicant by way of copies during the examination of this witness. Various discrepancies in numbering were noted e.g. (08C026055 and 08C02655). In addition '2009669263' folio cross referenced to '09C36322' (ATLAS reference).
8. Questions were asked about 'attachment 7' to the applicant's 28 October 2016 material. (Exhibit 'A-6'). Reference was made to a 2008 file number referencing a District Court Grant prior to the District Court trial. Reference '09C036322' referred to a Legal Aid grant in 2009 for an Appeal.
9. During the recommencement of cross-examination of the witness a reoccurring issue that arose during the pre-hearing case management of the matter again arose. The reference to T. Clough 'co-offender offence'. Evidence was given that this related to a record arising from the 'electronic application form' in the applicant's matter. The witness gave evidence that she was not responsible for these entries or creating the records. The entries were not made by the witness.
10. The witness gave evidence that there were three ATLAS files (as deposed in paragraph 15 of her affidavit: '08C026055', '09C036322' and '12C053444'). The witness stated that the applicant was provided with the file records which is the District Court matter, and that he was provided with copies of that file.
11. The witness gave evidence that documents concerning the Grants were not requested as part of the applicant's GIPA process/request, however as a result of their 'giving up' their holdings on the matter the applicant had now received some Grant material. The witness gave evidence that she did not search for medical reports arising from the Grants matter.
12. The applicant asked the witness whether she disclosed the NSW Police Disclosure Certificate? The witness answered no, as she did not locate it amongst the Commission's holdings. The witness gave evidence that she located 'DPP 2008 Disclosure Certificate 4'. When asked whether she spoke to Tracey Reynolds (Legal Aid Solicitor), she answered 'No'.
13. When questioned about the contents of paragraph 25 of her affidavit, the witness indicated that she spoke to people in her role as the GIPA Officer, and as a result identified that the oldest file needed to be retrieved from archives. In respect of the E.R.I.S.P. records the witness gave evidence that the reference was the correct E.R.I.S.P.
14. The witness was taken through various material from the applicant's Exhibit 'A-6' especially those referenced as 'argument'. When asked if she contacted any other entities (outside of Legal Aid) in responding to the requests, the witness answered that she did not. The only external communication occurred once the matter was before the Tribunal, and at its direction.
15. The witness was taken to the Legal Aid correspondence (see paragraph 11 above) of August 2016. The witness gave evidence that Legal Aid wrote to Archibold Solicitors who advised that they had returned the material to Legal Aid. Legal Aid also wrote to Whitby Solicitors who advised that they had returned the files to Mr Turner.
16. The reference to 'Parramatta' was revisited by the applicant. Some argument ensued about these misnamed references. The applicant asked the witness whether the term 'Downing Centre' was mentioned. The witness advised that they would not know. The witness stated that she was not acting as an investigator into the applicant's dealings with the respondent as a client. As a result she did not inquire into the meaning or veracity of the documents, but rather attempted to identify documents merely in connection with the formal GIPA process and the various attempts to give up any remaining holdings (by consent) once the matter was before the Tribunal.
17. In re-examination the witness was asked whether she was still involved in the GIPA function on behalf of the respondent Agency. The witness advised that she was involved and had been since the introduction of the GIPA Act in mid-2010. When asked how many GIPA applications she would deal with per annum, the witnessed answered 20-30 matters per year.
18. A further question related to an opinion, as to whether in her experience it would be reasonable to perform searches in the manner requested by the applicant. The witness indicated that they could only locate what was available.
19. When asked in re-examination whether she remembered '$100,000.00 medical reports?' the witness answered that if there were medical reports then they would have been identified and given over. The witness gave her opinion that if there was material held after 2008 then it would have been identified and given over to the applicant.
20. In closing, the witness noted that the system would not allow a search to a great level of specificity, such as the matters being queried directly by the applicant. Such records (if held) would or should be within the identified holdings.
21. After two days of hearing the respondent's evidence was closed and the matter was adjourned for oral evidence of the applicant and any further oral submissions of the parties.

Applicant's evidence at hearing

1. The applicant gave oral evidence at the resumed hearing. The applicant wished to give some context to his criminal justice dealings and the ensuing desire to obtain factual records under the GIPA process that in his view would establish certain matters to his benefit/credit.
2. The applicant outlined in evidence-in-chief his understanding that the incident leading to the criminal matters occurred on 29 May 2008, and he was arrested on 30 May 2008. There was only one charge, being Malicious wounding, however the actual charge that he was indicted on was different.
3. The applicant's trial was in the District Court at the Downing Centre (in Sydney) on 23 March 2009, 27 March 2009 and 25 March 2009. A fourth day transpired in Court 17A of John Madison Tower on 27 March 2009 where he was found guilty by a jury. The applicant's evidence was that he was sentenced on 24 June 2009.

Submissions at hearing

1. The applicant submitted that files had been held by the respondent with two offence dates. The applicant understood this position as a result of obtaining GIPA material from 3rd party Agencies - Forensic Health - Forensic and Analytical Science Services (FASS) via NSW health. The applicant submitted that the new material confirms the presence of the Police 'P373' (forensic examination form). Some of the documents tendered by the applicant (as set out above at paragraph 24) were submitted at this point in the hearing.
2. The applicant submitted that Exhibit 'A-15' comprises annexures to the statement of the FASS GIPA officer conducting GIPA searches. Exhibit's A-12, A-16 and A-17 were all filed on the final day of hearing. The folios attached to those Exhibits comprise an amalgam of material which on my assessment is predominantly deposited throughout the applicant's material already tendered in these proceedings. Whilst there is a sense of logic to much of the order of that material, other aspects appear disjointed and out of sequence. Pages of Court transcript appear at random intervals in the material. Copies of police material and forensic material also appear out of sequence. In my view whilst that material is relevant to the applicant's overall considerations under section 55 of the GIPA Act, its tender does not advance the respondent's position either way, and the matters that they are required to discharge in respect of extent of their searches.

Respondents written submissions

1. The respondent submitted that in respect of the medical evidence request (2016/00378157) it was appropriate to initially refuse to deal with the matter under section 60 (1) (b) of the GIPA Act. 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): …. (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, ….
2. The respondent noted that the IPC report recommended a new decision only in respect of items 1-10 inclusive from the initial 23. Ms McAtee conducted an internal review under section 84 (2) of the GIPA Act and determined that items 1-10 were not held by the respondent.
3. The respondent submitted that in respect of all three matters they have provided the applicant with all of the information in their possession that relates to the criminal law matters dealt with by the respondent.
4. The respondent submitted that many of the applicant's concerns appear to arise from his opinion about the authenticity or veracity of documents discovered under the GIPA process, both with the respondent and other NSW Agencies.
5. In respect of matter 2016/00377963 the respondent submitted that it provided all information under section 58 (1) (a) of the GIPA Act. As the decision was made late (under section 63 of the GIPA Act, the respondent submitted that more information was provided than was sought by the applicant.
6. In respect of matter 2016/00378034 the respondent submitted that the applicant contends that section 60 (1) (b) of the GIPA Act does not apply because there is more information 'held back' by the respondent than has been provided.
7. In respect of matter 2016/00378157 the respondent submitted that for similar reasons according to the applicant the provisions of section 60 (1) (b) of the GIPA Act did not apply because the respondent was holding back items 1-10.
8. The respondent submitted that internal reviews and IPC external reviews had been complied with. Additionally on 18 October 2016 in an effort to resolve the proceedings before the Tribunal the respondent provided the applicant with the seven folders (referred to above) comprising all information held in relation to the applicant's criminal proceedings.
9. The respondent submitted that the review under the Administrative Decisions Review Act 1997 (the ADR Act) does not extend beyond the 'correct and preferable decision'. Reference was made to Raven v The University of Sydney [2015] NSWCATAD 104 As the University submitted, it is not the Tribunal's role to determine the merits of the clinical trial or to determine whether the HREC's approval of the clinical trial constituted a breach of the National Statement. In any event, the applicant has not provided evidence which would establish that the University has been negligent or which would allow the Tribunal to conclude that the information could reasonably be expected to reveal or substantiate her allegations. Nor is there evidence from which the Tribunal could conclude that the HREC's approval of the trial constituted a breach of the National Statement. This is not to suggest that expert evidence on this issue would have been helpful or desirable; proceedings under the GIPA Act, like those under the former Freedom of Information Act 1989 (NSW), should not be used "as a vehicle for the collateral review of the merits or validity of official action" (Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24]).
10. Reference was also made to the case of Davidson v NSW Department of Education and Training [2013] NSWADT 25 at [3]: In making this remark, I am not critical of the applicant and accept that at the time she made her GIPA access request she did not fully understand that access requests made under the GIPA Act can only be made in regard to information that is held by the agency at the time the request is made. It 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.
11. The respondent submitted that only two questions therefore remain for the Tribunal: (1) whether the respondent has located all of the information falling within the scope of the access applications (a sufficiency of search question); and (2) whether the respondent has given the applicant access to all of the information that it found.
12. Reference was made to Smith v Pittwater Council [2016] NSWCATAD 67.At paragraphs [67] - [72] I note that the Tribunal observed the following relevant matters: Sufficiency of search 67. 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] QICmr 7; (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. 68. 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. 69. In this regard, the Council submits that the documents that have been identified are responsive to the Applicant's access application and that there are no reasonable grounds for thinking that other documents would exist. I accept that submission. 70. I note the Applicant's concerns in regard to the initial searches that were undertaken and the time that the Council took to complete the process, however I do not regard that there was any lack of good faith on the part of those within the council who performed functions under the GIPA Act. 71. On the material that is before me I am satisfied that it is improbable that further searches would locate additional information that falls within the scope of the access application. In my view, the searches that were ultimately undertaken were reasonable. 72. Accordingly, I accept the Council's assertion that it does not hold other information that falls within the scope of the Applicant's request.
13. The respondent submitted that the Tribunal must be satisfied as to whether there are reasonable grounds to believe that the agency holds the information, and then if so found, whether the search efforts were reasonable in the circumstances.
14. The respondent submitted that the three briefs are contained within the material (originally sent to the private solicitors) and in these proceedings provided to him by the respondent. Reliance was placed on the affidavit of M Schneider. Whilst copies of the physical folders were not kept the contents were.
15. In respect of the E.R.I.S.P. requests, the respondent provided the applicant with 4 x discs, two marked 'edited' and two marked 'unedited'. The respondent submitted that the Tribunal should follow the observations of the Court of Criminal Appeal in Turner v R [2015] NSWCCA 322. The CCA's finding being that certain matters were removed (by consent) due to the agreement of prosecution and defence legal representatives.
16. On this basis the four discs are the before and after versions of the E.R.I.S.P.'s and comprise the totality of the requests.
17. In respect of the Disclosure Certificates the respondent located only one certificate (from the three sought) within its holdings, but was unable to provide ancillary information about the other certificates (not held), in accordance with section 75 (2) of the GIPA Act.
18. In respect of the forensic items (1-10) the respondent relies on the references in the primary affidavits referred to at paragraph 21 (above) in so far as they observe an absence of such material to the best of the deponent's knowledge.
19. The respondent submitted that the second limb of the Shepard test (See paragraph 80 above) had been met. Not only had it provided evidence about its record keeping and file management systems but the respondent had also provided detailed sworn written and oral evidence about searches conducted.
20. In respect any outstanding residual matters (arising from whether the documents were held etc.), the respondent submitted that the correct and preferable decision was that as all documents held by the respondent have been provided to the applicant, then any other documents are not held, (the documents are not held).

Applicant's written submissions

1. The applicant filed and served numerous pieces of written material some of which took the form of submissions. Much of those matters addressed what the applicant perceived to be deficiencies in the material and responses provided by the respondent for either nefarious or on an otherwise inappropriate basis. Much of the submissions were predicated on a perceived grievance as to how the applicant's matters had been handled by the agencies or arms of the Government. It was noted that in respect of some GIPA Act applications, upon administrative review a number of instances of withholding material from the applicant had been identified. However in respect of this respondent no previous adverse findings had been made.
2. The applicant's submissions also drew down into somewhat minute detail in contrasting technical or clerical discrepancies in the information, often of a minor or typographical nature. It was clear (as previously observed) both at hearing and in written material/submissions, that the applicant was (understandably) heavily invested in the contents of the information and as a result was across much of the detail.
3. In final submissions received after hearing on 17 May 2017 the applicant again embarked on a forensic analysis of the veracity of the information/documents, consistent with his earlier approach. From paragraphs 4-28 inclusive in those submissions the applicant refers again to particular documents and critiques those documents merits and provenance. Paragraphs 33 to 55 inclusive were an exposé and analysis of the operation of the GIPA Act, in cogent but otherwise benign terms.
4. In respect of the reasonableness of the searches the applicant submitted that in certain instances wrong factual guidance material was applied and as a result incorrect parameters were applied by the respondent. The submissions concluded with a 'reverse analysis' of the process that the agency undertakes, whereby the applicant's own submissions were in the form of a parallel review of the matter. The applicant's submissions in effect decided the matter, and by inference, I infer, indicate (from the applicant) how the Tribunal should decide the matter.
5. The final thrust of the submission looked at the 'balancing' aspect of the GIPA Act, implying that decisions to release or withhold information were now at play in the proceedings. However I observe that this was never the respondent's position in the proceedings. No information was sought to be withheld under Schedule 1 of the GIPA Act (conclusive presumption) or section 14 (public interest considerations against disclosure). The general matters referred to in Mannix (at paragraph [17] above and as there noted) concerning weighting and considering information do not come into play in these proceedings.
6. The applicant again attached information apparently obtained through GIPA Act processes involving the Commissioner of Police, Corrective Services, FASS and other Agencies. This material (rather than necessarily being used for a collateral purpose) was apparently in support of the 'front end' of those submissions critiquing the information. In any event I observe that there is no limitation on the use of material obtained under GIPA.

Consideration

1. I have carefully considered all of the evidence and submissions filed by the parties even if I have not specifically referred to every aspect of it in these reasons. Whilst I have not read forensically every item of primary material filed by the applicant, I note that it was voluminous and often repetitive. Having regard to the guiding principle of the Tribunal I have considered that material for cogent arguments, fresh matters capable of consideration within the context of the CAT Act, the ADR Act and the GIPA Act.
2. I believe that with the lengthy pre-hearing case management discovery process, two and half days of hearing, the invocation of powers under section 46 of the CAT Act, and affording the applicant the opportunity to give evidence at hearing (in a GIPA Act matter), then the applicant has been afforded the requisite level of fairness including natural justice in the conduct and carriage of these proceedings.
3. I have set out much of the evidence in these reasons in order to illustrate the steps that the respondent (and to some extent the Tribunal), has taken to examine and address the applicant's concerns. By doing so I attempt to illustrate the factual position without engaging in an exercise of repetitive analysis.
4. My caveat concerning the consideration of the applicant's written material should not be taken as any concession or statement that relevant evidence and material has not been considered by me. On the contrary the material has been quickly considered (where appropriate) to identify the items of material requiring greater scrutiny. In addition I have had the benefit of approximately six sittings of the Tribunal constituted by myself in these matters, including two and a half days of hearing.
5. In determining this matter I have also had regard to the case of Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 177 (Turner v Police 2017) in which the applicant's oral and written evidence and submissions made repeated references to during the proceedings. Those references related to the hearing and purported preliminary findings of the Tribunal, and I note that the published reasons were delivered after the evidence had closed in the current proceedings.
6. At paragraph [73] of Turner v Police 2017 the Tribunal looked at similar items and whether sufficient searches had been undertaken. At paragraph [73] the Tribunal considered searches for material not specifically ventilated in these proceedings by the applicant, but considered a similar argument. The Tribunal observed and found: 73. However, the onus of proving that reasonable searches were made lies on the respondent. There is no evidence to establish what searches were conducted by the Warrant Unit and that those searches complied with section 53(3). In the absence of that evidence, I am not able to be satisfied that reasonable searches were made, even though there is no evidence to support the existence of a warrant. For those reasons, the decision will be remitted to the respondent for further consideration, with a direction to detail what searches are conducted and have been conducted.
7. Likewise at paragraphs [68] And [69] of that case in respect of the DVDs: 68. The respondent argued that the Tribunal should first establish whether the documents sought exist, relying on a decision of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7; (1994) 1 QAR 464. That decision rested on provisions in the Freedom of Information Act 1992 (Queensland) - see at paragraphs [18] and [19] of the decision - which were distinct from those at hand. This Tribunal must give effect to sections 53(2) and 105 of the Government Information (Public Access) Act 2009 which, in combination, cast the onus on the agency of proving: (1) what searches were made, and (2) that they complied with section 53(2). 69. For those reasons, the respondent's decision to decline access to DVD's produced after 30 May 2008 and in 2008 or 2009 will be remitted for further consideration, with a direction to detail what searches he conducts and has conducted.
8. Likewise there were other instances where the respondent in Turner v Police 2017 had asserted that searches had been undertaken but had not provided any evidence of the nature of the searches undertaken. I observe from those reasons that the matters adverse to the respondent in that case turn on the supporting evidence (or lack thereof) in respect of the sufficiency of search. That however is not the case in these three proceedings.

Conclusion

1. Having examined all of the evidence and material in the terms outlined above, and having noted all of the evidence and submissions in the proceedings (both written and the given orally in the proceedings), in my view the correct and preferable decision is to uphold the decision of the respondent.
2. In this regard I find that on each matter the respondent has discharged it's onus under the GIPA Act.
3. Having made those findings I do not propose to consider further the punitive provisions of the GIPA Act (section 112-120) and the various provisions of the Crimes Act 1900, as set out at paragraph 20 of these reasons. In respect of the later in my view I do not have jurisdiction to make any such orders even if such matters were engaged at hearing. In any event these matters abate.
4. Having made those findings, it remains that the correct and preferable decision is to affirm the decision of the respondent in each matter.

Orders 1. The decision of the respondent in 2016/00377963 is affirmed. 2. The decision of the respondent in 2016/00378034 is affirmed. 3. The decision of the respondent in 2016/00378157 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: 08 September 2017