Walker v Roads and Maritime Services

Walker v Roads and Maritime Services - [2019] NSWCATAD 177 - NSWCATAD 2019 case summary — Zoe

The Mona Vale Road East Upgrade Project

The Mona Vale Road East and West Upgrade Projects are a series of works undertaken by the respondent, currently under construction, to widen Mona Vale Road from two to four lanes at particular points. These projects are intended to alleviate peak hour traffic on the road. The chronology for the Mona Vale Road East Upgrade Project, which includes the construction of a truck arrester bed, is set out in paragraphs [5] to [14] below.
On 11 February 2014, the respondent commenced design work. The initial design included a truck arrester bed located next to the eastbound lane approaching Walana Crescent, near the bottom of the steep decent on Mona Vale Road, adjacent to the Mona Vale General Cemetery. This is the previous location of the truck arrester bed.
On 12 March 2015, a Safety Audit was completed on the initial design.
On 30 September 2015, in response to concerns raised by the community and the Safety Audit regarding the location of the truck arrester bed, the respondent decided to move the arrester bed to its current location 300m further west, up Mona Vale Road next to the eastbound lane.
In October 2015, Mr Richard Hine (Mr Hine), who was then the Project Manager for the Upgrade Project, moved to another position within the respondent.
In December 2015, planning approval for the Upgrade Project, including the new truck arrester bed location, was given.
On 4 December 2015, Aurecon Australasia Pty Ltd (Aurecon) was hired by the respondent as a third party design consultant responsible for detailed design work on the Upgrade Project, including the truck arrester bed in its current location.
In January 2016, Mr Velmurugu Mathivanar (Mr Mathivanar) took over the management of the Upgrade Project.
In early 2016, Mr Geoff Cahill (Mr Cahill), who was the initial Project Manager of the Upgrade Project in 2013, and to whom Mr Hine had reported, moved to another position.
On 11 October 2016, a Safety Audit on the design by Aurecon was completed.
On 22 November 2018, final design drawings were issued by Aurecon, including for the truck arrester bed in its current location. No changes have been made to the design of the truck arrester bed since that time.

[4]

The access application

On 18 January 2019, the respondent received an access application from the applicant pursuant to the GIPA Act requesting access to the following documents (the access application):
All information (initially as a list), regarding the design of the truck arrester bed for the Mona Vale Road East Upgrade, specifications and design calculations, and internal correspondence for the "PV" Arrester Bed.
On 8 February 2019, the respondent made the Decision and provided to the applicant Documents 1 to 6 referred to in the Decision, which relevantly provides: 2 Searches for information 2.1 Under the GIPA Act we must conduct reasonable searches to locate the government information for which you have applied. The following areas of this agency have conducted searches: • Technical and Project Services Division • Sydney Division, North West Precinct 2.2 Information has been identified as falling within the scope of your application. The searches were conducted on the Objective document management system. 3 Decision 3.1 I am authorised by the Principal Officer, for the purposes of section 9(3) of the GIPA Act, to decide your access application. 3.2 Please see below a summary of my decision: Doc. Ref. Information GIPA Act ref. Access Document 1 Design report for existing truck arrester bed - Thunderbolts Way - background material Section 58(1)(a) Full Page 1 - 8 Document 2 Internal email - urban design principles - 21 August 2014 Section 58(1)(a) Full Page 9 - 10 Document 3 Road safety audit report - 12 March 2015 Section 14, Table clause 3(a) and (b) Partial Page 11 - 22 Document 4 Internal Memo - design changes - 30 September 2015 Section 14, Table clause 3(a) and (b) Partial Page 23 - 32 Document 5 Road safety audit report - 11 October 2016 Section 14, Table clause 3(a) and (b) Partial Page 33 - 62 Document 6 Final design drawings - 26 November 2018 Section 58(1)(a) and 59(1 )(a) Full Page 63 - 69 Decision and further concept design drawings available at: N/A https://www.rms.nsw.gov .au/projects/sydneynorth/ Section 58(1)(c) Publicly available mona-vale-road/index. htmI

[10]

Searches

On 21 January 2019, he was asked by the Director of the Greater Sydney Project Office to conduct a search in response to the access application.
On 23 January 2019, he undertook a search of the respondent's records, particularly for information relating to the design of the truck arrester bed in the Upgrade Project. All the files for the Upgrade Project are meant to be stored electronically in "Objective", which is the respondent's document management system. Key emails relevant to the Upgrade Project are also stored on Objective and in personal Outlook inboxes. He identified two areas places in Objective that were most likely to hold information responsive to the access application. The first area was the "Detailed Design" sub file for the Upgrade Project; and the second area was the files held by the Engineering Design Team's Upgrade Project file. The "Detailed Design" sub file contains all the drawings, specifications, safety audit reports and design reports relating to the Upgrade Project including those for the truck arrester bed. He identified two sets of drawing packages that contained design details for the truck arrester bed. These were the "RD" package which includes the geometric design for the road alignment including the gradient, length and bearings of parts of the road, including the truck arrester bed. The other drawing package was the "PV" package, referring to the pavement package. This includes design details such as the composition of the road pavement and its structure, including for the truck arrester bed. He selected the latest versions of drawings from the RD and PV packages that related to the design of the truck arrester bed. This search took him around 6 hours.
On 22 January 2019, he asked Mr Jedniuk to undertake a search of the Engineering Design Team's Upgrade Project Objective file.
On 23 January 2019, he, in consultation with Mr Jedniuk, reviewed and identified those documents returned by Mr Jedniuk that were responsive to the access application.
He believes that the searches undertaken by Mr Jedniuk and himself incorporated every part of the Upgrade Project Objective file that was likely to contain material related to the truck arrester bed.

[26]

GIPA Act

The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s 3(1)(a)), giving members of the public an enforceable right to access to government information (s 3(1)(b)), and restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object (s 3(2)(a)), and that the discretions conferred by the GIPA Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information (s 3(2)(b)).
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles in s 15, including the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account (s 15(c)).
Part 4 Division 3 (ss 51-56) deals with the process for dealing with access applications. An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received: s 53(1). The agency's searches must be conducted using the most efficient means reasonably available to the agency: s 53(2). The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically: s 53(3). An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources: s 53(5).
Part 4 Division 4 (ss 57-63) deals with deciding access applications. An agency may decide an access application for government information by deciding that the information is not held by the agency: s 58(1)(b).
Part 5 Division 1 (ss 80-81) deals with reviewable decisions. A decision of an agency in respect of an access application that government information is not held by the agency is a reviewable decision: s 80(e).

[31]

Consideration

The Appeal Panel of the Tribunal addressed the issue of a summons to attend and give evidence in proceedings for an administrative review under the GIPA Act in Lonsdale v University of Sydney [2015] NSWCATAP 277 at [32]-[34]: 32 It is clear law that no party has property in a witness of fact or in an expert witness (see, e.g., Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384-5 per Lord Denning MR). Allowing the respondent to summons witnesses (whether to produce documents or to attend) who belong to the staff of the agency (or, in a case of the present type, third parties with whom the agency has business relationships) has the potential to subvert the agency's ability to present its case, and introduce into the process persons who it could have called, but has chosen not to call. There would, we think, need to be strong reasons for allowing a summons to proceed to issue in those circumstances. There must be clarity as to the forensic purpose served by such a step. It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review (including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise. 33 It would, we think, ordinarily not serve any legitimate forensic purpose to allow a review applicant to call witnesses who are bound by the agency's position (its officers) or who support that position (the third parties). Those persons would often have knowledge of the content of the documents for which protection is sought, and there is a real danger that proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information. There might be a need to deal with hostile witness submissions. This all has the potential to make the proceedings more prolix. 34 Decisions allowing the issuance of summonses should be mindful, we think, of the emphasis in the NCAT Act on the adoption by the Tribunal of practices that facilitate the just, quick and cheap resolution of the 'real issues' in proceedings (s 36(1), the guiding principle), and 'are proportionate to the complexity of the subject-matter of the proceedings' (s 36(4)).
I was satisfied that the principles in Lonsdale v University of Sydney at [32]-[34] should inform the consideration of whether a summons to attend and give evidence in proceedings for an administrative review under the GIPA Act should be set aside. I was also satisfied that the summons to each of Messrs Hine and Cahill to attend and give evidence should be set aside for the following reasons: 1. the applicant did not identify an adequate forensic purpose for their evidence; 2. it would compromise the way in which the respondent was conducting the case; 3. their evidence would be inconsistent with s 36(1) and (4) of the CAT Act in view of the absence of any involvement of Mr Hine, and the minimal involvement of Mr Cahill, in the relocated truck arrester bed.

[38]

Consideration

This approach of the Tribunal undertaking an administrative review of a decision that government information is not held by the agency is that answers are required to two questions - first, whether there were reasonable grounds to believe that the requested documents exist and are documents of the agency; second, if so, whether the search efforts to locate the documents had been reasonable in all the circumstances of the case: Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18]-[19].
The Appeal Panel of the Tribunal addressed the application of s 105 of the GIPA Act concerning the burden on the agency to justify its decision that it does not hold information in Webb v Port Stephens Council [2018] NSWCATAP 224 at [37] where it agreed that the correct approach is explained in Amos v Central Coast Council [2018] NSWCATAD 101 at [39]: 39 The burden of establishing that the implicit decision that the Council does not hold information is justified lies on the Council: GIPA Act, s 105(1). The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O'Connor remarked that an applicant "must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material]." These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent's legal onus to justify its decision under s 105 of the GIPA Act.
The Tribunal has applied the principle that it is not enough for an applicant to base the assertion on a deep-seated distrust of the agency: Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69].
I accept the evidence of Mr Mathivanar that Aurecon as the successful tenderer for the Upgrade Project did the calculations for the design of the truck arrester bed and that the respondent did not do any such calculations.
I am not satisfied that the applicant has put before the Tribunal any credible material or submissions that there is an arguable case that the respondent holds any information of the kind specified in grounds 1 and 2 of the application exists. The applicant's submission that the document management system Objective is a selective record of the respondent's activities for the Upgrade Project is unpersuasive in the light of the evidence of Mr Mathivanar that Aurecon, and not the respondent, did the calculations for the design of the truck arrester bed. Accordingly, I am not satisfied that the applicant has fulfilled the practical onus to establish the existence, or possible existence, of the further requested information.

[42]

Consideration

The Appeal Panel of the Tribunal considered the searches for information held by an agency required by s 53 of the GIPA Act in Robinson v Commissioner of Police [2014] NSWCATAP 73 at [26]-[27]: 26 It will be seen that s 53 commences by confining limiting the agency's obligation to respond to a request to information held by it at the time of receipt of the request (sub-s (1)).This protection against having to look for information once held but no longer in the primary systems of the agency is buttressed by sub-s (4), which makes it unnecessary for the agency to search electronic back-up systems (subject to narrow exceptions). 27 Importantly, sub-s (2) states that the agency 'must undertake reasonable searches as may be necessary' to find the requested information, and must do so 'using the most efficient means reasonably available to the agency'. The latter obligation is amplified by the obligation imposed by sub-s (3). As already noted, sub-s (4) protects the agency from having to make searches of electronic back up systems. Sub-s (5) contains the important qualification that searches that involve a 'substantial and unreasonable diversion of resources' need not be undertaken.
The Tribunal has applied the following principles in considering the reasonable of searches undertaken by an agency: 1. what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]; 2. that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; 3. the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28].
I accept the evidence of Messrs Mathivanar and Jedniuk as to the searches undertaken for the requested documents, and as to work that would be required in undertaking additional searches.
I do not consider that s 15(c) of the GIPA Act is relevant to the interpretation of s 53. While I agree that that the GIPA Act be interpreted and applied so as to further its object, I disagree with the applicant's interpretation of reasonableness because it would ignore the qualification on the obligation of the agency in s 53(5). The interpretation contended for by the applicant that the obligation of the agency varies according to the seriousness of the request finds no support in the text of s 53. There is no criterion to enable an assessment of when a request should be characterised as serious.
I am satisfied that the searches that were initially undertaken by the respondent were reasonable, notwithstanding the subsequent provision of documents. Undertaking additional searches would involve a substantial and unreasonable diversion of resources of the respondent, and accordingly need not be undertaken.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)

Cited By (10)