Vogel v Department of Education

NCAT Administrative and Equal Opportunity|2023-08-03

reasons for decision

Mr Peter Vogel (the applicant) has applied for administrative review of a decision made by the Department of Education (the agency) on 16 September 2022. That decision, made under s 60(1)(a) of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), was to refuse to deal with the application for access to government information which the applicant applied for on 21 April 2022 (the access application), on the ground that it would require an unreasonable and substantial diversion of the agency's resources.
There were ongoing discussions between the applicant and agency between those dates regarding the scope of the access application. They resulted in the applicant reducing the scope of the request on 13 September 2022, but not sufficiently to prevent the agency from refusing to deal with the application. In its letter refusing to deal with the application the agency notified to applicant of his review rights.
The application for administrative review was filed on 25 November 2022, eight working days outside the 40 working day limit for the making of such an application fixed in s 101 of the GIPA Act. As a result the applicant sought an extension of time. He explained the reasons for his delay in the application: "The rejection letter went to junk mail. When I found it I enquired about review rights and it took DoE 10 days to respond. Also DoE have been tardy, application was made 21/4/2022."
A directions hearing was held before Senior Member Higgins on 16 January 2023 when directions were made for the filing of evidence and submissions. At a later directions hearing, held 22 May 2023 before Senior Member Dinnen, an order was made by consent dispensing the need for a hearing and deciding that the administrative review application would be determined on the papers.
The administrative review application has now been referred to me to determine on the papers.
There has been a delay in delivering this decision for which I apologise to the parties. I have lost a number of weeks due to illness.

Jurisdiction

A decision to refuse to deal with an access application under the GIPA Act is a reviewable decision under that Act (s 80) which this Tribunal has jurisdiction to hear (s 100) under s 9 of the Administrative Decisions Review Act 1987 (NSW) (the ADR Act) and s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

Materials before the Tribunal.

In considering this matter I have had regard to the following written materials: 1. Filed by the applicant: 1. administrative review application with attached notice of decision. 2. applicant's statement dated 10 May 2023. 3. submissions of 10 May 2023. 1. Filed by the agency: 1. affidavit of Jennie Prendergast, Manager, Right to Access, Legal Services Directorate, Department of Education sworn 29 March 2023, with annexures. 2. bundle entitled reply evidence filed 19 May 2023. 3. submissions dated 29 March 2023. 4. submissions in reply dated 19 May 2023.
Having considered those materials and the issues in dispute, I too am satisfied that this is a matter that can be determined in the absence of the parties without a hearing.

Extension of time.

There was no reference to the need for an extension of time made in the submissions and evidence filed by the parties. Instead, the parties have addressed the substance of the issues in dispute.
Section 41 of Civil and Administrative Tribunal Act 2013 (the CAT Act) provides: (1) The Tribunal may, of its own motion or on an application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
The principles to be applied by the Appeal Panel in an application for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson). While the discretion to extend time is unfettered, it must be exercised judicially having regard to the guiding principle in s 36 of the NCAT Act. That is "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". In exercising the discretion, the Tribunal seeks to ensure that a rigid application of a time limit will not facilitate an injustice. In doing so, the Tribunal will usually consider: (a) The length of the delay; (b) The reason for the delay; (c) The applicants prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent. See Jackson at [22.3].
In the present case the application was 8 days late. The explanation for that delay is that the email containing the decision by agency was diverted to SPAM and took some time to be discovered by the applicant. It is unclear how long the delay occasioned by the diversion was. What is clear is that both parties were aware that time was an issue and have allowed the matter to proceed with no point being taken as to time. They have agreed to the real issues in dispute being determined on the papers, and have filed all the materials they rely on to allow that to occur. The time, money and effort put in by both parties will be wasted if the application does not proceed. There is no evidence of prejudice. As is apparent from my consideration of the merits of the application below, I consider that the applicant's case has substantial merit. In those circumstances, I order that time in which the applicant could lodge the administrative review application is extended to 25 November 2022.

History of the access application.

The access application, made on 21 April 2022, sought access to information in 20 categories. I will refer to each as an access request. 1. A table or database showing for each day of term 1 2022, for each student absent from school due to COVID-19, the child's age, year (K-12), name of school, postcode of school, and reason (infected or close contact isolating). 2. A table or database showing for each day of term 1 2022, for each member of staff absent from school due to COVID-19, name of school, postcode of school, and reason (infected or close contact isolating). 3. For each day of term 1 2022 the number of primary school students absent from school due to having COVID-19. 4. For each day of term 1 2022 the number of secondary school students absent from school due to having COVID-19. 5. For each week of term 1 2022, the number of primary school students admitted to hospital due to COVID-19. 6. For each week of term 1 2022, the number of secondary school students admitted to hospital due to COVID-19. 7. Total number of primary school students reported as absent from school due to testing positive for COVID-19 at least once during term 1 2022. 8. Total number of secondary school students reported as absent from school due to testing positive for COVID-19 at least once during term 1 2022. 9. Total number of primary school students reported as absent from school as a precaution against catching COVID-19 at least once during term 1 2022. 10. Total number of secondary school students reported as absent from school as a precaution against catching COVID-19 at least once during term 1 2022. 11. On 2nd March 2022, at the Budget Estimates Hearing, NSW Legislative Council Portfolio Committee No. 3 - Education, Minster Sarah Mitchell said "We are now at the point in our school communities where we are largely able to operate still in a COVID-safe way, but many restrictions have been able to be eased because of where we are up to in the pandemic. I think parents and school communities understand that the advice we provide is based on the best of intentions and the best Health advice that we have, working in collaboration with Dr Chant and her team." Please provide copies of the advice provided to the DoE by "Dr Chant and her team" to which the Minister referred. 12. On 3rd March 2022, the DoE at https://education.nsw.gov.au/covid19/response-protocol said "It is recommended that students and staff that return to school after recovering from COVID-19 do not participate in rapid antigen testing for 8 weeks following release from self-isolation unless they develop new COVID-19 symptoms. This is due to NSW Health advice that people who have recovered from COVID-19 have a low risk of contracting it again in the following 8 weeks." Please provide a copy of the advice to which the DoE refers. 13. On the 29th March https://education.nsw.gov.au/covid-19/response-protocol was updated to say "It is recommended that students and staff that return to school after recovering from COVID-19 do not participate in rapid antigen testing for 12 weeks following release from self-isolation unless they develop new COVID-19 symptoms. This is due to NSW Health advice that people who have recovered from COVID-19 have a low risk of contracting it again in the following 12 weeks." Please provide a copy of the advice to which the DoE refers. 14. On or about 25th February 2022 NSW Premier Dominic Perrottet addressed the Committee for Economic Development of Australia, as seen at https://www.youtube.com/watch?v=W0MxQGNCPkg At 31:10 minutes into this video the Premier says "We agreed that we'd get all these rapid antigen tests which was a massive feat, I mean we procured millions of these tests and had the plan together where we distributed them, before school started, to 3000 schools across our state and 5000 childcare and early child education centres. And by doing that together and having that plan… here's another interesting thing about the pandemic, Health completely disagreed with this approach by the way, they didn't see the point of having surveillance testing but education wanted it". Please provide copies of documents including correspondence with any parties concerning "this approach" to the use of rapid antigen testing referred to by the Premier, including correspondence, meeting minutes or other documents related to the DoE's desire to have surveillance testing. 15. Please provide copies of documents or other information concerning the performance of each brand of rapid antigen tests distributed to schools in term 1 2022. 16. Please provide a summary of expenditure on rapid antigen tests and air purifiers during term 1 2022. 17. This page "The role of ventilation in our COVID-safe return to school planning" https://education.nsw.gov.au/covid-19/advice-for-families/ventilation was updated on 23 March 2022. It now says: "Ventilation is only one part of the return to school plan. There is a comprehensive range of measures in place, including: • vaccinations for staff and eligible students • outdoor teaching recommended • additional hygiene supplies • continuing enhanced cleaning • servicing and cleaning of air conditioning systems Prior to that update, this list additionally included: a. outdoor teaching b. using masks c. teaching in smaller groups d. continuing enhanced cleaning e. maintaining 1 person per 4 square metres Please provide information including copies of correspondence, advice, minutes of meetings or other documents relating to the decision to remove each of these safety measures (a)-(e). 18. The DoE discontinued the requirement for students to take two rapid tests each week from the first of March 2022. Please provide information including copies of correspondence, advice, minutes of meetings or other documents considered in making this decision. 19. A press release dated 7th Feb 2022 https://education.nsw.gov.au/news/latestnews/additional-investment-to-future-proof-indoor-air-quality-in-nsw- entitled "Additional Investment to future proof indoor air quality in NSW schools" says: "In addition, air purifiers have been sourced and will be provided to schools when individual school circumstances require the department to respond to poor outdoor air quality." Please provide information including copies of a. Advice obtained by the DoE or generated internally on which the DoE relied in concluding that air purifiers would improve indoor air quality. b. tenders, requests for quotes or any similar documents setting out specifications of the air purifiers sourced. c. suppliers' responses to such requests. d. During term 1 2022, number of air purifiers purchased, number distributed to schools, and total cost. 20. This press release also says: "Minister for Education Sarah Mitchell said parents should have confidence in sending their children back to school. 'Thanks to the individual ventilation audit reports, Principals know exactly how to use their spaces in a COVID-safe way - and any issues identified by the audit are being fixed in real-time,' Ms Mitchell said." Please provide information including copies of documents, including videos or other training materials, used during term 1 2022, informing Principals how to interpret the ventilation audit reports and how to use their spaces in a COVID safe way.
In his statement the applicant explained that he had made the access application as the parent of a child who was enrolled in a public school during the Covid pandemic. He is also one of the authors of a complaint to the Ombudsman "about NSW Department of Education's Covid management" made by Covid Safe Schools Incorporated, a public interest association of concerned parents. He intended to use the information obtained from the access application for his own purposes and to publish it on the Covid Safe Schools Facebook page.
After receiving the request the agency, on 10 May 2022, asked him to pay an advance deposit of $240, based upon an estimated processing time for the access application of 17 hours. This included the hours already undertaken. The notice advised that while, "every effort has been made to prepare a reasonably accurate estimate, it may take a longer or shorter time than expected".
On 28 July 2022, the applicant paid the advanced processing charge.
On 1 August 2022, the agency asked the applicant to narrow the scope of his access application. A letter advised that a new time estimate had been received, and that the time required to process the access application was now estimated at 46 hours (of which the first 6 hours had been done), in accordance with the following table: Task to be carried out Hours Time already spent dealing with the application up to 1 August 2022, including work to: consider the scope of the application, make preliminary searches to identify records, provide time estimates, consider ways of amending/ reducing the scope 5.5 Health and Safety to search for, extract and examine records for relevance, in the department's electronic records management system 0.5 (HPRM), in shared local computer drives, electronic databases, hard copy and emails. COVID-19 & Crisis Taskforce to search for, extract and examine records for relevance, in the department's electronic records management system (HPRM), in shared local computer drives, electronic databases, hard copy and emails. 27 School Infrastructure NSW (SINSW) to search for, extract and examine records for relevance, in the department's electronic records management system (HPRM), in shared local computer drives, electronic databases, hard copy and emails. 8 RTA - to collate records, identify and, if required, redact information that is subject to overriding public interest against disclosure and any out of scope information 3 Decision Maker - to examine the records, conduct public interest test to weigh up the balance of public interest factors and make decision about providing access 2 TOTAL 46

No explanation was given of how the original estimate had grown by 29 extra hours, from 17 hours to 46 hours. The estimate new was based on how long it would take the COVID-19 Crisis Taskforce and School infrastructure NSW (SINSW) - administrative units within the agency - to process the access requests referred to them. It did not directly address how long it would take the agency to process each of the 20 access requests. The notice advised: The department can refuse to deal with an access application under section 60(1)(a) of the GIPA Act, if dealing with the application would require an unreasonable and substantial diversion of resources. However, section 60(4) of the GIPA Act requires the department to provide a reasonable opportunity for an applicant to amend the application. Accordingly, I hereby invite you to amend your application as follows: 1. Amend to parts 15 and 16 only which can be provided by SINSW; or 2. Some amendment of your own choice.
Ms Prendergast's affidavit explained that the COVID-19 & Crisis Taskforce later became the Crisis Response & Recovery Team.
The applicant responded on 29 August 2022. Much of his response set out his view as to how readily assessable information responsive to his various requests should be. I will not repeat that here. With respect to items 15 and 16, he concluded: I ask that you refer items 15 and 16 to SINSW and proceed to provide me the other information I am seeking. I am willing to pay the $1,380 estimated for these.
This, together with other comments made by the applicant in later correspondence, regarding items 15 and 16, has led me to think that the applicant was under the misapprehension that SINSW is a separate agency, and that he was therefore making a different access application to it. It is not. The result was that the applicant did not amend his access application in line with the request from the agency.
The agency replied by email on 1 September 2023 noting that the request had not been amended, and advising that the whole application remained an unreasonable and substantial diversion of the agency's resources. It asked that the applicant persist with items 15 and 16 only. The estimate was increased to 56 hours.
The applicant replied on 2 September 2023 saying he could see no reason for amending his access application. He noted that his request to refer items 15 and 16 to SINSW eliminated debate about them creating "a diversion of resources." This again indicates that he regarded SINSW as a separate agency. He also sought further explanation of the agency's difficulties in locating responsive information.
The next communication was an email from the agency to the applicant dated 6 September 2023. It said: As previously advised, the time required to process the entire application combined is what makes the application an unreasonable diversion of the department's resources. You were invited to amend to just parts 15 and 16 and withdraw the rest as this would reduce the overall time to a reasonable processing time. In my letter dated 1 August 2022 you were advised that processing the whole application would take around 46 hours. This is considered unreasonable. I have since had further clarification from the search areas and now consider the time estimate to be 56 hours. Parts 1‐10 of your application are not held. The significant amount of time relates to the records held by the Covid Taskforce. It should also be noted that most of this will be cabinet in confidence and cannot be released. The estimated time is to search for each document and consider whether each document is cabinet. While it is likely that all or most of it is cabinet, each document requires consideration rather than deciding an overarching refusal. I cannot begin processing part of the application, until the whole application is reduced to a reasonable scope. It was suggested you amend to parts 15 and 16 only as this can be processed in a reasonable amount of time and will likely provide you with released records. Rather than a significant amount of time being spent on considering documents that likely cannot be released to you. I have now been advised that we could also provide a response to part 20 in a reasonable time combined with parts 15 and 16. These three parts are estimated at around 30 hours and processing charges would apply. Please see this IPC factsheet that may assist: … Please advise if you wish to amend your application by 13 September 2022.
The applicant replied on 6 September 2023 advising that he was withdrawing his request, insofar as it related to items 1 to 10, and 19(a). He attached a copy of his original access application in which items 1 to 10, and 19(a) were struck out. He also wrote: … This request is no longer onerous because it now asks for only the following items: 11. Specific health advice provided by NSW Health prior to the start of term 1 2022. This was a very significant decision and the information must have been carefully collected and organised to be prepared to answer questions about COVID safety from other government bodies, parent groups, media etc. or indeed to be prepared to defend the Department's decisions in case of disaster. It should be a quick and simple matter to provide me with this bundle of information. 12. Specific "NSW Health advice that people who have recovered from COVID-19 have a low risk of contracting it again in the following 8 weeks". If this advice exists, it should take a few minutes to locate it and include it in the information provided to me. 13. Similarly, the advice on which the period of low risk was increased to 12 weeks should be quickly identifiable. 14. I am asking for very specific information about the Department's decision that surveillance testing should be included in Term one 2022 settings. This should be quickly identifiable. 15. & 16. You have conceded that this information is readily available from SINSW. 17 - 18. The Department claims it made changes to the COVID-19 mitigations as listed based on NSW Health advice. That advice must be located somewhere readily accessible. If it is part of more comprehensive advice, please feel free to provide all the information and I will extract the information I am looking for. This should not be an onerous exercise. 19. I have deleted the advice on air purifiers as this is potentially extensive and could involve information from multiple sources. This reduces item 19 to identified documents which should be at the Department's fingertips. 20. You have indicated that this information is readily available (as one would expect of educational materials).
The agency responded on 16 September 2022 with a decision to refuse to deal with the application and by returning the advanced deposit. The decision was made on the basis that the only amendments were to items 1 to 10, and 19(a). The decision said, among other things, that: On 6 September 2022 you were advised the entirety of the application is an unreasonable diversion when you consider all the processing time as a whole, in accordance with s60(1)(a). You were further advised that upon further consideration by the search areas, the time estimate originally provided to you should be expanded by 10 hours. You were also advised that a significant portion of the search time related to searching for cabinet in confidence documents and confirming they are in fact cabinet. These documents cannot be released to you, so it was suggested you remove these parts as a significant amount of time would have to be spent on records which cannot be released. You were once again invited to amend your application to significantly reduce the scope. On 13 September 2022 you removed parts 1-10 and 19a of your application, however, parts 1-10 were not included in previous time estimates as we had already established that records relating to those parts are not held by the department. Therefore, this amendment does not reduce the scope and the application remains an unreasonable and substantial diversion of the department's resources. To assess whether your application would require an unreasonable and substantial diversion of our resources, the following factors have been considered: 1. Although the scope of your application details the information sought, the time involved in locating the relevant records is significant. 2. I have considered the importance of the requested records to you. 3. We have estimated that 58 hours of time is required to process your application. 4. We invited you to amend the scope of your application on five occasions; however, despite being given suggestions on how your application could proceed in a manageable way, you have continued to refuse to amend the scope in a way that reduces the required processing time. Having regard to the factors above, I find that processing your application in its current format would constitute a substantial and unreasonable diversion of resources.
In her affidavit Ms Prendergast referred to reports from the Crisis Response & Recovery Team of the agency and from SINSW, each of which would be required to devote valuable human resources to identifying responsive information and to providing advice relating to it, in response to the access application. She relied on their time estimates, together with her own of 10 hours for processing the access request within the Access Information Unit.
The report from the Crisis Response & Recovery Team of 30 January 2023 indicates that a period of between 27 to 31 hours will be required with respect to items 11, 12, 13, 14, 17, and 18, and would involve staff "across PPSE Bands 1, 2, and 3". The report advised: This will be a significant diversion of resources away from many critical functions in the Department. As many colleagues nominated as search offices have returned to BAU or new roles (following the disbandment of the Taskforce) this means that the diversion of resources will impact several divisions and key functions including: • Office of the Group Deputy Secretary, School Improvement and Education Reform • Crisis Response & Recovery • Educational Standards • Disability Strategy • Casual Workforce • Education & Skills Reform Strategic Priorities Specifically in Crisis Response & Recovery Unit, this is a newly formed team designated to coordinate response and recovery for major disasters and emergencies. This includes but is not limited to the impact of flooding across North Coast/Northern Rivers and Western NSW, ongoing management of COVID-19 policy settings in schools, and the risk of emergence of new diseases and outbreaks. There is significant workload spread across a small number of staff and this GIPA request will divert attention away from addressing those critical issues for our students, staff and school communities
The SINSW report advised that information responsive to request 15 was "N/A (NOT OUR DIVISION)". With respect to items 16, 19(b) and (c), and 20 SINSW provided a time estimate of 22hrs and 20 minutes. It explained that additional time required for consultations had been added to an original time estimate of 16 hours. That original was dated 16 September 2022. There is no date on the SINSW report.
Ms Prendergast said that the Information Access Unit has 10 staff allocated to deal with requests for access under the GIPA Act. In 2021 the agency received 1278 access applications and 1855 in 2022. Ms Prendergast says that the average time to process an application is 10 hours. Internal reviews decisions usually require between 10 and 50 hours work. Annexed to Ms Pendergast's affidavit are extracts from the 2020 and 2021 annual reports of the agency. They provide no information regarding processing times for access applications.

The relevant law.

The objects of the GIPA Act are set out in s 3: (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.
'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. It includes "(a) a Public Service agency" such as the Department of Education.
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 that information unless there is an overriding public interest against disclosure (s 9).
A person aggrieved by a "reviewable decision" made under the GIPA Act may apply to the Tribunal for an administrative review of that decision under the ADR Act. A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act: (s 80(c)). The Tribunal's function under s 63 of the ADR Act is to determine what is the correct and preferable decision having regard to the material before it and any applicable written or unwritten law
Section 60 of the GIPA Act provides: (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) - (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) … (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. (3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
I note that the agency has included in its evidence in reply a copy of an earlier decision of the Tribunal involving the same parties: Vogel v Secretary, Department of Education [2023] NSWCATAD 105 and of three other decisions made with respect to other access applications made by the applicant. All three were made after the access application under consideration was filed and have since been determined. No reference was made to the time taken in determining those decisions in the decision under review. No submission has been made to the effect that I should consider those access applications and this access application together, for the purposes of s 60(3), and no evidence has been provided of the demands those applications placed on the agency's resources. No submission has been made that they are related. I have not considered them as a result.
Section 60 is aimed at ensuring the sensible and efficient deployment of an agency's resources, promoting the efficient administration of the GIPA Act, and the avoidance of the wasteful deployment of limited resources in its management: Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7 at [43] and [49].
Sub-sections (3A) and (3B) were introduced into the GIPA Act by the Government Information (Public Access) Amendment Act 2018 (NSW) (Repealed) which commenced on 28 November 2018. They incorporated the factors discussed in Colefax v Department of Education and Communities (No 2) [2013] NSWADT 130 at [24] to [27] as being relevant to a decision under s 60(1). These were derived from Cianfrano v Director General, Premier's Department [2006] NSWADT 137 - a case under the Freedom of Information Act 1987 (NSW) (Repealed) - as applicable to an assessment of whether a diversion of resources was both "unreasonable and substantial"; see also Hariz v Commissioner of Police, NSW Police Force [2023] NSWCATAD 99 at [137]. It is important to note that the words "unreasonable" and "substantial" have different meanings and that s 60(1) requires that each be assessed having regard to "the application" actually being processed: not an amorphous or theoretical application. One can envisage situations where a diversion of resources may by substantial, but reasonable.
In making that assessment an agency "may" take into account the considerations set out in s 60(3A), namely: (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57.
Importantly, those consideration, to prevail, must outweigh, the s 60(3B) factors, namely: (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law.
The general public interest in favour of the disclosure of government information in s 60(3B)(a) is the same as the public interest as that created by s 12(1). In Ruyters v Commissioner of Police [2020] NSWCATAD 223 (Ruyters) at [47] Senior Member Ransome found that: … the "general public interest in favour of the disclosure of government information" in s 60(3B) refers to the inherent public interest in the disclosure of government information as in s 12(1) and not to the other public interest considerations in favour of disclosure of the particular information sought as set out in the note to s12(2).
Senior Member Riordan agreed with that conclusion in Hickey v Secretary, Department of Education [2021] NSWCATAD 306 (Hickey) at [112].
With respect to s 60(3B)(b), in Ruyters it was submitted that use of the term "demonstrable" requires "an applicant to provide sufficient cogent material to make evident the importance of the information to the applicant." The Tribunal held that, at [54]: … while recognising the difficulties of applicants in identifying relevant material, it is necessary for an applicant to put forward some material to indicate the importance of the information sought rather than engaging in mere speculation or conjecture.
Given the provisions of s 105(1) of the GIPA Act which places on agencies the burden of establishing that a decision is justified, s 60(3B)(b) should not be read as placing anything approaching an evidentiary burden, rather than a practical burden, on applicants to show the demonstrable importance of the information to them. The Macquarie Dictionary Online defines "demonstrable" to mean: adjective capable of being demonstrated.
In some cases the demonstrable importance of information to an applicant will be obvious from the circumstances. In others, an applicant may have to explain the importance of the information to them, so that the decision maker understands it. That explanation should be rational, and not based on speculation and conjecture as Senior Member Ransome observed in Ruyters.

Consideration.

In determining whether or not the applicant's access request, as amended, constitutes an unreasonable and substantial diversion of the agency's resources a decision maker may consider the factors set out in s 60(3A) and (3B), and the weight to be given them. These are. 1. The volume of information involved in the request. 2. The estimated time involved in processing the access application. 3. The extent of the agency's resources. 4. The decision period under section 57. 5. The general public interest in favour of disclosure. 6. The importance of the information to the applicant - including whether it is personal information could assist him in exercising any rights.
Given may assessment - explained below - that the access application does not, on its face, require an unreasonable and substantial diversion of the agency's resources, I would not have considered it necessary to embark on a consideration of the factors set out in s 60(3A) and (3B). However, the significant submissions made by the parties addressing those factors needs to be addressed. In addition, the consideration of those factors will be of utility if I am proved to be wrong on my initial assessment.

The volume of information involved in the request - s 60(3A).

The focus of the agency's evidence is on the time likely to be taken to identify, retrieve and consider information responsive to the applicant's access request. Estimates as to the specific volumes of information involved are not to be found in the agency's materials, although imprecise and emotive terms such as "masses of information" are. This is unhelpful. The agency's focus is on processing time, which I accept is a factor to which regard may be had under s60(3A), given the use of words "without limitation" in the sub-section.
It is the applicant's view that now that he has amended his request, so as not to include items 1 to 10, and 19 (a), that the volume of material he has requested is substantially reduced. His requests for specific written advice or training materials such as those in requests 11, 12, 13 and 21 do not, on their face, require large volumes of information over and above the advice concerned. Other requests, such as items 14, 17, and 19(b) and (c), cast a much wider net seeking potentially large volumes of correspondence and other documentation. In the absence of information from the agency, relating to the volume of information it holds that is responsive to each request, it is impossible to draw any precise conclusion regarding the volume of information in issue. Given the provisions of s 105, the agency bears the onus of demonstrating the volume of information and has not done so.

The estimated time involved in processing the access application - s 60(3A).

The agency's estimate of the time needed to process the applicant's access request has burgeoned since the access request was first made. On 10 May 2022, when the request for an advance deposit was made by the agency, it was estimated that 17 hours would be needed to process the request . Within six days of the advance deposit being paid, on 1 August 2022, the estimate was amended to 46 hours. While a breakdown of that estimate was provided, no explanation was given for the disparity with the previous 17 hour estimate. It was then that the agency first sought a reduction in the volume of the information requested.
No mention was made in any of the initial communications relating to the access application of the fact that the agency did not hold items 1 to 10. The only way in which that correspondence can be fairly read is that the time estimates of 17, then 46 hours, related to all the items requested by the applicant.
When the applicant responded to the agency disputing the complexity of the requests and asking for more information, it responded on 6 September 2022, providing by way of further clarification a fresh estimate of 56 hours. It did not explain that clarification and blandly advised that "Parts 1‐10 of your application are not held." There was no explanation of why the estimate had increased, especially given the potentially significant reduction in information requested due to items 1 to 10 not being held.
The time estimate has since expanded further. It was said to be 58 hours in the decision to refuse to deal with the access request. Ms Prendergast in her affidavit put it at a maximum of 63 hours and 20 minutes. This was comprised of 22 hours and 20 minutes for SINSW, 27 to 31 hours for the Crisis Response & Recovery Team, and 10 for Information Access Unit. That estimate was qualified by a statement that it had the potential to keep growing, especially given that the latest estimates did not include item 15. Previously, locating information responsive to items 15 and 16 had, together, been the subject of an 8 hour estimate by the agency on 1 August 2022. No explanation for these apparent disparities in the two estimates of the time required to locate information responsive to items 15 and 16 was offered by the agency.
Ms Prendergast did explain that some information requested was considered likely to require a consideration as to whether cabinet confidentiality applied to it, and tender information would require third party consultations. I accept that this explains the increased hours needed by the Information Access Unit.
In submissions the agency suggested the final figure was 53 hours. I do not understand how that figure was reached.
In his evidence the applicant did not really address the time issue. Rather, he emphasised the simplicity of some of his requests. I have already indicated that I accept his submission with respect to a limited number of the advices to government which he asked for, but am not persuaded with respect to those requests where he sought information in multiple formats.
The absence of any evidence as to the time estimates for retrieving information relating to items 1 to 10, is of significant concern. The overall time estimates have increased, despite the withdrawal of those items. That withdrawal has had no apparent impact on the estimates. The applicant was not notified that information was not held in relation to those items until 6 September 2022. All prior communications appear to have assumed that items 1 to 10 remained a part of the request. This leads me to conclude that, (a) items 1 to 10 were included in estimates before 6 September 2022, and, (b) no deduction has been made following their withdrawal. Rather, the estimates keep increasing.
It is difficult to reach a conclusion as to the amount of time it is likely to take to process the amended access application. I have little confidence in the escalating estimates provided by the agency and think its later figures exaggerated. At the same time, the applicant's view of the minimalist nature of his request is simplistic. The information he requests is significant and will take time to discover, retrieve and process. Taking all of the above into account, and doing the best I can on the materials available, I conclude that the processing time should not exceed 45 hours and that this reflects the volume of information involved in the request.

The decision period under section 57- s 60(3A).

This is 20 days, which can be extended for consultations and retrieval of information for up to 15 days. The process has already taken more nine months. If remitted to the agency to be processed, more time is likely to be needed than is available unless additional resources are provided.

The extent of the agency's resources - s 60(3A).

The agency submitted: The Tribunal has held that it is a matter for the agency to determine what resources it makes available to process an application under the GIPA Act: Loussikian v University of Sydney [2018] NSWCATAD 140 at [50] ("Loussikian").
What the Tribunal said at par [50] in Loussikian was: It is a matter for the University to determine what resources it makes available to process GIPA access applications. Whether or not the University is a large, well-endowed agency is not a relevant consideration in this matter.
As the agency should know, Loussikian was heard and decided before s 60(3A) commenced. In Hickey the Tribunal observed that, at [103]: In cases such as Loussikian (at [50]) … the Tribunal found that it is a matter for an agency to determine what resources it makes available to process applications and whether or not it is large and well-endowed is not relevant in determining whether dealing with an application would unreasonably and substantially divert its resources. However, the express reference to "the agency's size and resources" in s 60(3A) now makes it clear that whether the agency in question is large and well-resourced will generally be relevant to the Tribunal's determination regarding matters under s 60(1)(a) of the GIPA Act.
I agree.
The resources concerned are those of the agency. How an agency allocates its resources within its administrative structures, and the requirements it places on those structures, is a matter for it and the applicable Minister. While regard must be had to those administrative structures when assessing the resources an agency has available to process an access request under the GIPA Act, those structures and the resources allocated to them by agency are not determinative of the extent of agency's resources. The wording of s 60(3A) makes it clear that it is the agency's resources, not those of individual administrative units within it, that are be considered.
The agency's evidence and submission places significant emphasis on the resources and work assigned to three administrative units, rather than those available to the agency as a whole. Ms Prendergast's affidavit gives evidence of the limited resources available to SINSW, the Crisis Response & Recovery Unit and the Information Access Unit. She points to the demands already on those units and argues that the additional work involved in processing the applicant's access request is substantial and stretches their resources unreasonably. For example, the evidence is that the Crisis Response & Recovery Unit is busy responding to problems associated with flooding, and would have difficulty if its human resources were diverted to processing the access request. Ms Prendergast gave no evidence as to whether other resources are available within the agency to be deployed to assist administrative units when faced with such pressures. This is a factor that has long been considered relevant: see Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [50].
Agencies have statutory duties and responsibilities under the GIPA Act. The share of resources they see fit to allocate to the fulfillment of those duties and responsibilities does not determine when a request constitutes an "an unreasonable and substantial diversion of the agency's resources" under s 60(1)(a). Each case requires a consideration of the resources actually available to the agency, not simply those allocated for the purpose the GIPA Act.
In Hickey Senior Member Reardon found at [104] that the Department of Education "is a large agency and that it has substantial resources." She, at [105], noted that the evidence before her from the agency was that "…it usually regards a maximum of 40 to 50 hours' work as being reasonable to allocate to an application". In this case, the agency has not put on any evidence concerning what it considers a reasonable maximum time for processing accessing access request. Ms Prendergast does say at par [31] of her affidavit that - The average time is 10 hours to process an application under the GIPA Act is 10 hours.
The 2001 and 2002 annual reports of the agency provide no insight into processing times for access requests, or into the volumes of information they seek.
In submissions in reply, at par [11.1], the agency conceded that it is a "large agency" but went on outline how the processing of the access request would affect the resources it has allocated to the three administrative units. The submissions did not address the resources available to agency as a whole. The submissions sought to distinguish Hickey, on the basis that the access request there considered sought specific information relating to bullying at a named school. In contrast, the agency said this access application seeks, "generalised information as to the management of COVID-19." The present focus of inquiry, however, does not concern the nature of the information being sought. At issue are the demands placed on the agency by the access application, considered in the light of the resources available to the agency as a whole. In Hickey, the agency's estimated processing time was, at [8] "between 431.5 and more than 594 hours work", significantly greater than the estimates here. In the circumstances of that case, the Tribunal did not consider that those hours constituted an unreasonable and substantial diversion of the agency's resource
On the material before me I agree with the assessment in Hickey that the agency "is a large agency and that it has substantial resources".

The general public interest in favour of disclosure - s 60(3B).

In submissions the applicant sought to rely on the public interests in favour of disclosure set out in s 12(2). These are factors which a decision maker is required to take into account, together with any pertinent public interest against disclosure as specified in s 14, in applying the public interest test under s 13 when deciding whether to release government information. They include that: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
In Ruyters Senior Member Ransome rejected a submission that the s 12(2) considerations were instructive when considering the "general public interest in disclosure" under s 60(3B)(a). She found that in interpreting s 60(3B), that, at [45]: [T]he use of the word "general" in the phrase "general public interest" should be given its ordinary meaning of "common to many or most of the community" and "non-specific or special" (Macquarie Dictionary). In that sense the phrase "general public interest" indicates that it is the inherent public interest in the disclosure of government information that is to be given consideration for the purposes of s 60(3B) as it is in s 12(1).
Senior Member Riordan followed this in Tucker.
I am not persuaded that, while clearly arguable, this is necessarily the preferred interpretation of "general public interest" in s 60(3B)(i), especially given the declared Parliamentary intention in s 3(2): (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.
While I understand the practicality of the argument that agencies should not be required to address the s 12 factors when refusing to deal with an application, there are cases in which the public interest in favour of disclosure is patent, and will not require any substantive investigation or consideration. To interpret the Act so as to disregard specific public interests in favour of disclosure being taken into account, where they obviously exists, is a cause of concern.
Despite this, because there are two decided decisions on the issue, I consider myself bound out of comity to follow them. The appropriate level at which they should be challenged is at an appeal panel or above. As a consequence, the applicant's submissions regarding the s 12(2) factors fail.
Nonetheless general public interest in favour of disclosure is an important and a key aspect underlying the operation of the GIPA Act. It is not be minimalised.

The demonstrable importance of the information to the applicant - including whether it is the applicant's personal information and could assist him in exercising any rights.

Section 60(3B)(ii) is focussed on the demonstrable importance of the information to the applicant. That consideration may include whether the information is personal information of the applicant and whether it could assist him or her in exercising a legal right. It does not require that the information be personal information of the applicant. One can easily envisage situations where access to government information is of demonstrable importance to an access applicant without it being the applicant's personal information; e.g. information relating to a decision not to implement a proposed bus route may be of demonstrable importance to those who were intending to use it, but is unlikely to include the personal information of those people. In my view this is such a case.
The applicant had a child enrolled in a public school during the Covid-19 pandemic. He joined with a public interest association of concerned parents to try to discover relevant government information regarding Covid safety in public schools. In submissions, he said that he intended to use the information for his own purposes and to "publish it on the Covid Safe Schools Facebook page". There is no suggestion that the information the applicant seeks is his personal information or that of his child.
These factors point to the applicant having an obvious and demonstrable interest in the government information he is asking for. The protection of one's child is part of the legitimate personal affairs of parents: JY v Commissioner of Police, NSW Police [2008] NSWADT 306. It subsists to include the protection of a child's interests after death: Annetts v McCann (1990) 170 CLR 596, at 603, per Mason CJ, Deane and McHugh JJ. The agency submission that "the primary purpose of the access application has fallen away," because the applicant's child is no longer enrolled in a public school and was "home schooled" for much of the pandemic, does not have proper regard to the breadth of a parents role in protecting their child's health, welfare and best interest. It is not persuasive. Checking the safety of a child's school environment, even if in the past, is a clear and obvious interest of a parent.
Similarly, as part of an association of parents concerned with how government schools were managed during the pandemic, the applicant has a demonstrable interest in obtaining pertinent government information and distributing it to other concerned parents. He has a legitimate interest in seeking to inform himself and others about the health management of schools during the pandemic. It is obviously important to him.
The agency's suggestion that the fact that the Ombudsman has dismissed a compliant made by the applicant, should have satisfied his interest in the information must fail. A decision by the Ombudsman does not affect the right to information under the GIPA Act.

Conclusion.

First, I am not persuaded that, on its face, dealing with the access application will require an unreasonable and substantial diversion of the agency's resources. Given the conclusions I have reached, with respect to the time necessary to process the request and the extent of the agency's resources, it cannot be reasonably argued that the request will require an unreasonable and substantial diversion of the agency's resources.
If I am wrong in that conclusion, then the question of whether there is an unreasonable and substantial diversion of the agency's resources requires consideration of the s 60(3A) and (3B) factors.
Balancing each of those factors against the others I conclude that the amended access application does not require an unreasonable and substantial diversion of the agency's resources. The factors I have identified as applicable under s 60(3A) are, in my opinion, substantially outweighed by those under s 60(3B). This so even if the agency's time estimate is used as the basis of consideration. The agency has the resources to meet the demands of the access request. That the time specified by s 57 will likely be exceeded, unless more resources are devoted to processing the request, is a factor weighing in favour of refusing to process the request, but it is not of sufficient weight to change the balance. The s 60(3B) factors deserve greater weight than those under s60(3A).
Therefore, the correct and preferable decision is to process the access application, not to refuse to deal with it. Dealing with it will not require an unreasonable and substantial diversion of the agency's resources.

Orders.

The Tribunal makes the following orders: 1. The time in which the applicant could lodge the administrative review application is extended to 25 November 2022. 2. The Tribunal finds that the applicant's access application does not require an unreasonable and substantial diversion of the respondent's resources for the purpose of s 60(1) of the Government Information (Public Access) Act 2013 (NSW). 3. The decision under review is remitted to the respondent under s 65 of the Administrative Decisions Review Act 1997 (NSW) for reconsideration in accordance with these reasons. 4. Within 8 weeks of the date of these orders, the Respondent is to inform the Applicant of the outcome of the reconsideration. 5. Leave to the applicant to apply on seven days written notice in the event that order 3 is not complied with.

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: 03 August 2023

Government Information (Public Access) Act 2013(NSW)

Administrative Decisions Review Act 1987(NSW)s 9, s

Freedom of Information Act 1987(NSW)

(Repealed) Government Information (Public Access) Act 2009(NSW)

Government Information (Public Access) Amendment Act 2018(NSW)

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