Walker v Northern Beaches Council

Submissions of the applicant

1. In support of his approval application the applicant relied on the submissions he had provided in support of an earlier approval application (dated 9 June 2023) and further submissions dated 3 July 2023.
2. In his submissions dated 9 June 2023, the applicant said that his proposed access application is for a LIST, namely a print-out that is generated from the respondent's computerised system by using the abovementioned specified search words. He asserted that the LIST will show his 'Continuing and Constructive Involvement in Community and Council Matters.'
3. He said he is seeking access to this LIST for use as evidence in future requests for the removal of the Tribunal's restraining order and also for the removal of the respondent's general ban on him being able to attend Council meetings or any of the Council's buildings. He explained that this was the fourteenth application he had made to the Tribunal following the 2015 restraining order. Of these, the first twelve had been approved. The thirteenth application for approval was refused on the objection of the respondent that it had not been notified of the application prior to lodging it with the Tribunal: GIPA Act s 110(4).
4. Enclosed with his submissions of 3 July 2023 was a copy of computerised LISTS to which the applicant had been granted access under an access application he had made to the Department of Premier and Cabinet.
5. The applicant noted that the Tribunal's restraint order should be appealed as it was made without any evidence of 'frivolous or vexatious' behaviour by him.
6. The applicant also raised two other matters which in my opinion do not arise as a matter or issue for determination in these proceedings. Hence, I have not considered these any further.
7. In his oral submissions, the applicant said he does not have and has never had a computer. He said that he had retained hard copies of the communications he made to or received from the respondent, but these, to the knowledge of the respondent, had been destroyed. He said that in his endeavour to demonstrate his continued involvement with and contribution to the respondent Council he needed further copies of these communications and it was on this basis that he is seeking access to a computer printout that listed the submissions he has made and correspondence he has sent and received during the relevant period. He said that the list will then enable him to determine exactly which communications he will subsequently seek access to.

Submissions of the respondent

1. In its submissions, dated 12 July 2023, the respondent noted that the Tribunal's power to grant approval to the applicant to make his proposed access application was discretionary, having regard to the factors set out in s 110(5A), but is otherwise unfettered. It was noted that the discretion must nevertheless be exercised judicially.
2. The respondent submitted that the applicant's proposed access application was an 'entirely unreasonable diversion' of its resources and of little utility in circumstances where the applicant has copies of all of the documents for which the applicant seeks to be listed.
3. In this regard, the respondent noted the following: 1. what was being sought by the applicant in his proposed access application was a list of communications from and to him over a period of 5 years, since mid-2018. This would include communications relating to the GIPA access applications for which he obtained approval after that date or earlier GIPA access applications that were dealt with by the Tribunal after mid-2018; 2. that a list would need to be specifically prepared by the respondent from searches from its various record systems. It was not simply a list that could be generated from its computer systems; 3. the respondent's records are primarily held in three electronic management systems being TRIM, iFerret, the Vault and TechOne; 4. on a preliminary search of the TRIM electronic management system for the requested five year period; 1. 'Over 3,000 documents' were returned with a search for 'P*, Phil, Philip Walker' in the search title; 2. 315 records linked to 'Philip Walker' as a customer; 3. 199 records linked to 'Friends of Mona Vale' as a customer; and 4. 272 records within the search for 'Friends of Mona Vale' in the title; 1. in preparing the requested list, the respondent would need to review and consider each document and decide whether it falls within the parameters of the applicant's proposed access application and whether it is a document for which the applicant had already been granted access; 2. a conservative estimate for preparing the requested list was three full days.
4. The respondent also submitted, based on the decision of the Tribunal in Fernley v Health Care Complaints Commission [2020] NSWCATAD 30 and BDK v Department of Education and Communities [2015] NSWCATAP 129 at [59] to 62], that the reasonable inference to be drawn from the applicant's proposed access application was that it was brought with the intention of annoying the respondent, and therefore frivolous and vexatious.

Legal Principles

1. In Walker v Pittwater Council [2016] NSWCATAD 78, the Tribunal had before it two proposed access applications of the applicant for which he sought approval to lodge with Pittwater Council. At [10] to [14], the Tribunal made the following observations about a person's right to access government information under the GIPA Act and the restrain order provisions in s 110 of that Act: 10 As with all discretionary powers, the power implied under s 110(1) to approve or not approve an access application, must be exercised reasonably and in accordance with the subject matter, scope and purpose of the statute: … 11 The object of the GIPA Act is to "open government information to the public": GIPA Act, s 3(1). That object is achieved by various means including giving members of the public an enforceable right to access government information: GIPA Act, s 3(1)(b) and (c). The discretions conferred by the Act are to "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information": GIPA Act, s 3(2)(b). 12 But there are limits on a person's right to access government information. For example, information does not have to be provided if there is an overriding public interest against disclosure or the information is not held by the agency: GIPA Act, s 58(1)(b) and (d). Five grounds on which an agency may refuse to deal with an application are set out in s 60: (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) 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, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 , (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note : See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order. 13 These proceedings relate to the restrictions on a person's right to access government information when a restraint order has been made. The Tribunal may make a restraint order if a person has made at least three applications in the previous two years which "lack merit": GIPA Act, s 110(1). Under s 110(2) an application lacks merit if: (a) the agency decided the application by refusing to deal with the application in its entirety, or (b) the agency decided the application by deciding that none of the information applied for is held by the agency, or (c) the access applicant's entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable). 14 A restraint order may apply to all access applications made by the person or may be limited by reference to particular kinds of information or particular agencies: s 110(3).
2. At the time the Tribunal made its decision in 2016, s 110 did not include s 110(5A). That sub-section was inserted into the GIPA Act by cl 31-33 of Sch 1 of the Government Information (Public Access) Amendment Act 2018 (NSW) (repealed) (2018 Amendment Act).
3. In this application, the relevant parts of a 110(5A) are paragraphs (a) and (b).
4. In my opinion, the term 'lacking in merit' in s 110(5A)(a) should be given the same meaning as set out in s 110(2). As I have already noted, this would include a proposed application for access where, having regard to the terms of the proposed access application and the material before the Tribunal, the proposed access application is one where it is open to the agency to determine that application by deciding (a) to refuse to deal with the application in its entirety, or (b) that none of the information applied for is held by the agency.
5. The term 'frivolous, vexatious, misconceived or lacking in substance' is not defined in the GIPA Act.
6. In Walker v Pittwater Council [2016] NSWCATAD 78,at [22] to [23], the Tribunal considered the meaning of the term 'lacking in substance' and relevantly said [citations omitted]: 22 The term "lacking in substance" is not defined in the GIPA Act but has been interpreted in many cases including under the various federal and state anti-discrimination statutes: [citations omitted]. The most commonly quoted definition is that an application will be lacking in substance if it is based on "an untenable proposition of law or fact": State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J. 23 Sir Ronald Wilson said in Assa v Department of Health Housing and Community Services, (1992) EOC 92-409, 78,897 at 78,900 that: … it is unwise postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case. 24 In the context of the GIPA Act, if the Tribunal does not have jurisdiction or the application lacks merit because of a restriction or qualification on the applicant's rights under the GIPA Act, then the application will be lacking in substance. For example, an application will be lacking in substance if it meets any of the tests in s 110(2), if there is an overriding public interest against disclosure or if the information is not held by the agency. But it must always be borne in mind that an applicant has an enforceable right to access government information and the discretions conferred by the Act are to "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information": GIPA Act, s 3(2)(b).
7. In Fernley, at [45], the Tribunal noted the frequently cited explanation of the term 'vexatious' given by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 as follows: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
8. In BDK v Department of Education and Communities [2015] NSWCATAP 129 at [65] the Appeal Panel noted the following in regard to these categories: 65 It will be seen that Roden J's first category covers conduct that falls within the meaning of 'frivolous', while his third category embraces the kind of cases to which the expressions 'misconceived' and 'lacking in substance' are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action).

Does the applicant's proposed access application lack merit?

1. The respondent has not submitted that it does not hold a List (a record) containing the information for which the applicant seeks access: GIPA Act s 58(1)(b).
2. In Walker v Northern Beaches Council [2021] NSWCATAD 251, at [56], the Tribunal noted that the applicant, in that matter, had requested that the respondent 'provide electronically the LIST found electronically by the GIPA officer' when conducting his/her search for the information held by the respondent and falling within his 16 February 2019 approved access applications. The applicant's arguments in support of such a List are similar to those made in this application namely: 56 The applicant referred to a "verbal" request for documents he made at the Case Conference. In submissions filed on 26 May 2020 the applicant expressed the information sought as follows: "The 2020 refusal is based on the 2016 refusal justified by the volume of information (see 2 above). The Northern Beaches Council (sic) is therefore requested formally (this request was made verbally in the Case Conference) to provide electronically the LIST found electronically by the GIPA officer, in both the 2016 and 2020 searches. The GIPA officer's electronic Search Tags (sic) for both the 2016 and 2020 applications are also requested. A LIST of documents is not a new document. A LIST of documents does not require examination by the GIPA officer. A LIST of documents can include all documents both in and out of Scope. By way of example (as raised verbally in the Case Conference) in a GIPA Matter with the Department of Premier & Cabinet, a similar request was made and the information, the LIST and the LOG was provided. The LIST contained the names of 8555 documents and the LOG showed the Search (sic) being repeated 43 seconds after the first Search! If it is good enough for the Department of Premier & Cabinet to provide the LIST and LOG then it is good enough for Northern Beaches Council (sic) to do likewise." 57 The production of a "list" was not a substantial diversion of the respondent's resources as "the list has already been found electronically and can be printed out in seconds" and the list is "not a new document" as it is" an electronic collation of the titles and dates of existing documents".
3. After citing the terms of ss 41 and 75 of the GIPA Act and the meaning of the word 'record' in cl 10 of Sch 4 of the GIPA Act, at [112] to [116], the Tribunal noted a number of difficulties with the applicant's suggestion, including: 116 The fourth difficulty is that the creation of a "list" or "log" detailing the contents of all information held by the respondent involving the applicant involves the creation of a new record under s 75 (2) (a) of the GIPA Act. This matter does not involve seeking information that is already in the form of a "list" or a "log"; or information that can be simply listed in the manner of the Schedule of Documents that was attached to the respondent's decision of 11 May 2020; but the creation of a new record by way of producing a new document giving a description and details of the substance of existing documents.
4. In that case, the applicant access application the subject of the decision of the respondent for which the applicant had sought administrative review did not seek access to a list of the information sought. Nevertheless, in my view, in this application where the applicant's proposed access application is a request for a list, generated from the electronic management systems of the respondent, of the information sought, this arguably involves the creation of a new record under s 75 of the GIPA Act which the respondent is permitted to do but not obliged to do.
5. In any event, as this is not a ground relied on by the respondent, I have not considered it any further.
6. The grounds relied on by the respondent are those set out in s 58(1)(e) of the GIPA Act, in particular s 60(1)(a). That section relevantly provides as follows: 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) - (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, … (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.
7. In the absence of the applicant having any knowledge or experience with the record management's systems of the respondent, I do not accept his contention that the preparation of his requested List would require no more than a push of the button.
8. At the same time, the applicant appears to accept that the respondent's searches on its TRIM record management system identified more than 3,000 documents using the search terms P*, Phil and Philip Walker. Why the search terms P* and Phil were used is unclear as P* and Phil are not terms suggested by the applicant.
9. I accept that the documents identified by the respondent as generated in its search of its TRIM record management system may have include communications with the respondent that the respondent has previously provided the applicant with access to. The list may also include some communications that do not fall within the applicant's proposed access application. Hence, I accept that the respondent would be required to examine each document listed in its TRIM record management system search in order to determine whether the listed document was in fact a communication of the kind referred to in the applicant's proposed access request. This would be time consuming and to use the words of the respondent require the creation of a separate list. In my opinion, the respondent's estimate of three full days is appropriate and a search of the respondent's remaining record management systems for the information sought would extend that time.
10. The respondent did not specifically address how many access applications it receives each year and the resources available to the respondent in dealing with such access applications. In its 2015 Restraint Decision, at [23] to [29], the Tribunal noted that the former Pittwater Council did not have a dedicated GIPA unit. The Tribunal also noted a number of access applications of the applicant which had been found by the respondent to be an unreasonable and substantial diversion of its resources.
11. While there has been an amalgamation of the former Pittwater Council with its surrounding Councils, I doubt that the resources of the new Council (the respondent) are any greater than they were previously in each of the three former Councils combined.
12. Even if the amalgamated Council has more resources, this would be marginal as the object of amalgamation is to reduce resources, in my view, given the time restrictions in dealing with an access application in s 57 of the GIPA Act (90 working days), an access application spanning a five year period during which there has been ongoing communication between the applicant and the respondent, including further approved GIPA applications, I accept the submissions of the respondent that to deal with the applicant's proposed access application would be an unreasonable and substantial diversion of its resources.
13. Hence, I am satisfied that based on the material before the Tribunal and the terms of the applicant's proposed access application it lacks merit under ss 58 (1)(e) and 60(1)(a) of the GIPA Act.
14. In regard to the submissions of the applicant: 1. I accept that the applicant's requested List is of importance to him, especially to the extent it is personal information about him. I accept that his copies of the communications he had between himself and the respondent were destroyed. I doubt that the applicant's requested List of communications will demonstrate his 'Continuing and Constructive Involvement in Community and Council Matters'. At the same time, I accept that the applicant feels very aggrieved by the restrictions the respondent has imposed on him over recent years. However, these restrictions are not matters over which the Tribunal has any jurisdiction. This does not mean that the applicant is prohibited from seeking access to information concerning those restrictions, which he has done and which have been determined by the respondent. In some cases, as noted above, these decisions have been the subject of administrative review by the Tribunal; 2. given the many access applications the applicant has made (including those for which he has obtained approval), I am not persuaded that the applicant is unaware of the nature, or subject matter of the communications for which he seeks access. Nor am I persuaded that he is unable to formulate an access application which is more limited in time and also very specific as to the information for which he seeks access; and 3. having made many access applications, the applicant is also aware of the time restrictions within which an access application is to be decided by a government agency and the decisions a government agency can make, under s 58(1) of the GIPA Act, in response to an access application.

Is the proposed application frivolous, vexatious, misconceived or lacking in substance?

1. In its 2015 Restraint Order Decision, the Tribunal made no finding that the access application made by the applicant prior to that decision had been frivolous, vexatious, misconceived or lacking in substance. On the contrary, at [59], the Tribunal said that it accepted the applicant's contention that he had made his previous access applications because he believed it was in the public interest to do so. Nevertheless, at [60], the Tribunal made the restraining order sought because, a pre-condition as set out in s 110(2)(a) of the GIPA Act had been established (the then Pittwater Council having recently decided to refuse to deal with an access application of the applicant under s 60(1)(a)).
2. In my opinion, it cannot be said that the applicant's proposed application is frivolous or vexatious.
3. However, given my findings above, for the purpose of this approval application, I find that the applicant's proposed access application is also misconceived or lacking in substance. In the event it was to be argued that the applicant's proposed access application involved the creation of a new record, then based on the findings of the Tribunal in Walker v Northern Beaches Council [2021] NSWCATAD 251 at [161] (see at [41] above) this would be a further ground for finding that the applicant's proposed access application is misconceived or lacking in substance.

Has the applicant engaged in conduct designed to harass, to cause delay or detriment … ?

1. There is no evidence of the applicant having engaged in conduct designed to harass, to cause delay or detriment to the respondent or otherwise.

Discretion

1. Based on my findings above, the object of the GIPA Act in s 3(1) and (2) to open government information to the public by giving members of the public an enforceable right to access government information and that discretions conferred by the Act are to be exercised , as far as possible, so as to facilitate and encourage, promptly and at the lowest cost, access to government information, I am satisfied that , on balance, the applicant's application for approval of his proposed access application should be refused. In summary, I make this finding because, on the material before the Tribunal, I am satisfied that the applicant's proposed access application lacks merit and is misconceived and is lacking in substance, which are grounds on which it is open to the respondent to decide not to deal with the proposed access application because it would involve an unreasonable and substantial diversion of its resources. At the same time, given the manner in which the applicant has prosecuted this approval application, I am not persuaded that the applicant would amend the terms of his proposed application so that it would not amount to an unreasonable and substantial diversion of the respondent's resources. However, it remains open for him to do so having regard to the terms of his previous applications and decisions that were made in regard thereto.

Conclusion and Orders

1. For the reasons set out above, I am satisfied that the applicant's proposed access application lacks merit and is misconceived and is lacking in substance and his application for approval should be refused. Hence, I make the following order: 1. The applicant's application, made on 28 June 2023, for approval under s 110(1) of the GIPA Act, of his proposed access application is refused.

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 November 2023