Walton v Eurobodalla Shire Council

Background

1. On 10 November 2020 Mr Walton made an application under the GIPA Act for access to information held by the Council.
2. As summarised at [2] and [3] above, Mr Walton was seeking information related to his water usage. Rather than specify the documents or information sought, Mr Walton added to the description of the documents with a narrative of the background, presumably to assist in identifying and possibly locating the relevant information for assessment under the application. The application specified (inter alia): The information relates to Water Usage Account No 6247212 and ourselves as individuals and as a company N & D Walton Pty [sic] and as the Tern Inn Restaurant. We would like all information held by Council in the form of written correspondence including but not limited to internal emails between every person (not limited to Council employees*) that commented on the issues arising from that email. This email was sent from terninnrestaurant@gmail.com. External emails that were sent and received by Council employees using their Council email account or other private personal email addresses using the Council Information Technology Systems that have been sent or received regard [sic] the issues raised by us on 8th May 2020 and the subsequent issues arising from that email. For example, if a Council employee has a private email account which is being accessed using the internet provided by Council and they have used that system to send or receive any emails about these issues, then I request a copy of those emails. Records of all internal and external meetings including formal and informal meetings to discuss the issues raised by us on 8th May 2020 and to discuss any subsequent issues arising from that email. All records should include the official minutes of the meeting/s diary entries, post-it notes or other written records of the persons present. ……. At a point in time Council made a decision to reduce the discharge factors for our Water Usage Account. … We request all correspondence ….. about that decision or any statement concerning the reasons for that decision. We request a copy of the delegation or authority under the legislation or other governance structures given to the person that made this decision.
3. The application to the Council was lodged on 10 November 2020. The GIPA Act provides for an agency to determine a valid application within 20 working days. This is set out at s 57 (1) of the GIPA Act. 57 Required period for deciding application (1) An agency must decide an access application and give the applicant notice of the agency's decision within 20 working days (the decision period) after the agency receives the application.
4. However as noted above in certain instances an agency may extend the period for deciding an application. Section 57 (2) provides that: (2) The decision period can be extended by up to 10 working days for either or both of the following reasons (with a maximum extension under this subsection of 15 working days for any particular access application) - (a) consultation with another person is required under a provision of this Act, (b) records are required to be retrieved from a records archive. Note - The decision period can only be extended to allow for mandatory consultation, not just consultation that the agency chooses to do.
5. In addition s 57 provides further particulars about the decision period and how it may be extended and managed. (3) The regulations can also provide for the extension (and further extension) of the decision period. (4) The decision period can also be extended (and further extended) by agreement with the applicant. Note - A decision by an agency to refuse to agree to extending the decision period is not a reviewable decision. (5) The agency must as soon as practicable after the decision period is extended (and in any case within 5 working days after it is extended) give the applicant notice of any extension of the decision period (including any extension by agreement with the applicant), indicating the date on which the extended decision period will end. (6) An access application is considered to have been decided within time if the agency decides the application and gives the applicant notice of the agency's decision within the decision period. The decision period is also referred to in other provisions of this Act as the period within which an application is required to be decided.
6. The matters referred to in s 57 (3) by reference to the Government Information (Public Access) Regulation 2018 do not concern the facts in these proceedings as they are applicable to a specific agency other than the Council.
7. On 7 December 2020 the Council notified Mr Walton that they had extended the decision period by a further 10 days because 'records are required to be retrieved from a record archive'. The notification referred to the decision period being extended from 8 December 2020 until 22 December 2020.
8. On 22 December 2020 Mr Walton received a Notice of Decision about his application. As part of that decision the Council had applied the processing charge that they had calculated for dealing with the application. Council were able to apply the processing charge ($360 less $30 paid as application fee) because they had completed the decision process within the extended period as provided by s 57 (2) of the GIPA Act. This meant that as they had completed the decision in 30 working days (due to the extension) rather than the standard 20 working days, any calculated processing charges could be legitimately levied. If however the Council had not made the decision prior to Wednesday 23 December 2020, no fees could be levied against Mr Walton due to the operation of s 63 (4) of the GIPA Act. That is because a decision which has not been completed within the decision period is considered a deemed refusal under s 63 (1) of the GIPA Act. 63 Deemed refusal if application not decided within time (1) If an agency does not decide an access application within time, the agency is deemed to have decided to refuse to deal with the application and any application fee paid by the applicant is to be refunded. Note - A deemed decision to refuse to deal with an application is reviewable under Part 5. (2) The deemed refusal to deal with an application does not prevent the agency from continuing to deal with the application and subsequently deciding the application and giving notice of its decision (a late decision) on the application. (3) The obligation to refund an application fee to the applicant is not affected by the making of the late decision and the late decision does not entitle the agency to payment of an application fee. (4) No processing charge can be imposed for dealing with an access application if the application was not decided within time (whether or not a late decision is made on the application). (5) Despite this section, the obligation to refund an application fee to the applicant does not apply to any application that was transferred to or from the agency. (Emphasis added)
9. On 11 January 2021 Mr Walton applied to the Information Commissioner for external review of the Council decision under s 89 of the GIPA Act. 89 Right to have decision reviewed by Information Commissioner (1) A person aggrieved by a reviewable decision of an agency is entitled to have the decision reviewed by the Information Commissioner under this Division. (2) A reviewable decision must be the subject of an internal review by the agency under this Part before it can be reviewed by the Information Commissioner unless - (a) the aggrieved person is the access applicant, or (b) an internal review of the decision is not available to the aggrieved person under this Part. (3) The Information Commissioner may exercise any function of the Information Commissioner under the Government Information (Information Commissioner) Act 2009 for the purposes of or in connection with the review of a reviewable decision of an agency. (4) Conduct of an agency that constitutes a reviewable decision of the agency cannot be the subject of a complaint to the Information Commissioner under section 17 of the Government Information (Information Commissioner) Act 2009.
10. In his request to the Information Commissioner Mr Walton outlined his concerns about the imposition of the processing charge. He relied on two main grounds, one being that the information that he sought was in his view his own personal information (in that it was predominantly about him not others), and that as the information sought was only six months old at the time of the application, such information should not have been archived and as a result there was no basis to extend the decision period by 10 working days. If either of these grounds were made out the processing charge would no longer apply to his application.
11. The Information Commissioner completed their review of the matter on 12 May 2021 and provided their Report to Mr Walton and Council. The Executive Summary of the report contains the following: The Applicant applied for external review of the Agency's decision to impose a processing charge. The reviewer obtained information from the Agency including submissions and an itemised breakdown of the charge. The review of the Agency's information and decision concluded that its decision is not justified because section 63(4) of the GIPA Act prohibited the imposition of a processing charge. The reviewer recommends, under section 93 of the GIPA Act, that the Agency reconsider the decision to impose a processing charge having regard to the findings in this report.
12. In conducting their review the Information Commissioner considered the provision of s 57 (2) (b) and the meaning of the term 'record' in the context of the words 'record archive' as they appear in the GIPA Act. The Information Commission considered that in practical circumstances whereby 'records are required to be retrieved from a records archive', it meant that the Agency needed to demonstrate that (consistent with one of the definitions from NSW State Records), that it needed the extra time in order to allow 'for Agencies to visit a place which keeps historical records, and to retrieve information from said place.'
13. As in the current matter Council had not needed to physically visit another physical location to retrieve the records, as they were archived electronically, then the Information Commissioner was not satisfied that the application of s 57 (2) (b) was valid. The Information Commissioner after having reviewed Council's submissions, made the following observation: 33. There may be a question of whether digital spaces or locations (e.g. records in particular folders or servers) would be covered by the second element (records in a place where public or historical records are kept) . In my view such a reading of the provision requires too much abstraction to be well founded. That said, I recognise that the language of the provision does not explicitly dismiss such a notion. In any case, I do not consider a determination on the question is necessary for the purposes of this review. 34. As an aside for clarity, I do consider that the retrieval of digitised records may be relevant for the purposes of the provision, but in my view, the provision will generally require some tangible act of retrieval from a specific physical location s separate to retrieval from the internet or an agency's server. …. 42. The Agency have noted the breadth of the application and the volume of records which required assessment as demonstrative of the difficulty in the retrieval process. I do not agree that such factors show any difficulty in retrieving the records themselves. Instead these factors show the difficulty in identifying and assessing the responsive government information within those records which had been retrieved from the search engine.
14. After receiving the Information Commissioner's Report on 12 May 2021, Mr Walton then decided to apply for administrative review by the Tribunal. The current application was filed on 8 June 2021, within the 20 working day period provided for by the GIPA Act.
15. There is no dispute that the decision is an administratively reviewable decision to the Tribunal under the GIPA Act. Section 80 provides: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object). (Emphasis added)
16. In the current matter the decision under review falls with s 80(j) as the Council has imposed a processing charge which must be paid prior to release of the information.

What the GIPA Act provides in respect of Government Information

1. The GIPA Act provides for the proactive release of government information, informal release of government information, as well as the formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.
2. These principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10] 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
3. The GIPA Act has an objects provision at s 3, which includes a reference at s 3 (2) (a) that the legislation be applied so as to further those objects. 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

Jurisdiction

1. The decision under review is a reviewable decision in accordance with s 80 (j) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act. The Tribunal notes that the application for review has been received within time.

Administrative Review

1. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The hearing

1. The matter was heard on 3 November 2021. As Mr Walton was not legally represented the practice and procedure of the Tribunal was explained and the broad provisions of the GIPA Act were outlined in the hearing.(s 38 (5) Civil and Administrative Tribunal Act 2013 'the NCAT Act').
2. It was also explained to Mr Walton that under the GIPA Act that the onus rested with the Council to establish that the provisions of s 57 (2) (b) had been legitimately enlivened and as such it was open to Council to extend the decision period by 10 working days and recover the processing fees.
3. The Information Commissioner's representative appeared and was heard at the hearing consistent with the provisions of s 104 (1) of the GIPA Act. 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. This was particularly important as these proceedings related to a decision which had been externally reviewed by the Information Commissioner, who had reached a different position to Council in respect of the legitimacy of levying the processing charge.

Mr Walton's material:

1. Mr Walton relied upon his application for Administrative Review with the following grounds: 1. IPC review of the information and agency decision concluded that the decision was not justified-s63 prohibited the imposition of a processing charge. 2. A Water Account and the opinions of agency staff meets the definition of Personal Information, financial information including bank accounts -s67 prohibited the imposition of a processing charge in this case. 3. The agency failed to facilitate, promptly and at the lowest reasonable cost, access to government information - s3.
2. Mr Walton provided a bundle of seven documents relating to the application and decision process including a response from Council to the Information Commissioner's Report, dated 27 May 2021. (Exhibit 'A-1')
3. Mr Walton also provided a further bundle (entered as Exhibit 'A-2') which included all served material from Council's Solicitors before the Tribunal as well as the Information Commissioner's Guideline 4 concerning Personal Information under the GIPA Act. Nine page written submissions were also provided by Mr Walton.

Council's material

1. Council provided the material within scope of the application - documents 25 and 26 (marked as Exhibit 'R-1'), documents 1-18 inclusive -within scope (marked as Exhibit 'R-2'), and Affidavit of J Phillips affirmed 24 September 2021 (marked as 'R-3') and an affidavit of K Love affirmed 27 September 2021 (marked as 'R-4').
2. Written submissions and submissions in reply were also filed and served.

Information Commissioner's material

1. The Information Commissioner filed and served detailed submissions and gave oral submissions at hearing.

Evidence at hearing

1. Mr Phillips gave evidence at the hearing and adopted his affidavit in evidence in chief. In cross examination he was asked about folio 57 in Mr Walton's bundle (being correspondence for Council's solicitors) and whether he was the person referred to in that correspondence as 'Corporate Manager Governance and Administrative Services' which Mr Phillips confirmed he was. However in respect of his role Mr Phillips said that his only involvement in the application was to have a Council officer contact Ms Love who was dealing with the application. Mr Philips confirmed that he did not perform any of the searches for information but confirmed that he did discuss with Ms Love about extending the decision time.
2. The real extent of his involvement was to have Ms Love get in touch with the Trade Waste Officer in response to the scope of the application. Mr Phillips said that the purpose of providing an affidavit was directly in response to paragraph 9 of Mr Walton's submissions, which dealt with the issue of whether 'retrieval' of records was required. However when asked Mr Phillips confirmed that he prepared the 'I-Ferret' report (a web based search function) and that he prepared it for Ms Love in her absence, as she was on leave. Mr Phillips said that only Ms Love conducted the 'I-Ferret' searches.
3. Mr Phillips was asked whether he agreed that all of the searches were conducted within about one hour. He said that there were about 10 pages of documentation to look at. He confirmed that he thought that physical access to documents would be required.
4. Mr Phillips was asked whether in his experience there had ever been an extension of time for the decision for the time to retrieve information from electronic rather than physical archived files. Mr Phillips said that he could not answer, however he always believed that these matters involved physical files.
5. Mr Phillips was asked again to confirm that I the 'I-Ferret' searches took one hour. He said that broadly they did but that some records took a bit longer to identify because you had to apply to obtain security access to search some of the records.
6. In re-examination Mr Phillips was asked whether the ordinary electronic records system (ECM) had a search function. Mr Phillips said that it did.
7. Ms Love in her evidence in chief said that she was the Manager of the Office of Governance and Information.
8. In cross examination Ms Love was asked whether she asked Mr Phillips to look for other material relating to the liquid trade waste reduction. Ms Love said that yes, she asked Mr Phillips to search for this material. Those documents were in a hard copy file and she asked Mr Phillips to search this.
9. When Ms Love was asked why those documents were not searched prior to the extension she said that she could not recall.
10. In respect of the 'I-Ferret' audit trail Ms Love said that the application was registered on 12 November 2020 and that she alone did the 'I-Ferret' searches. She said that she performed the searches on 12 November 2020 and did some more in December 2020 to make sure that everything was identified. Ms Love said that when she ran the search she creates a managed result set and then put the results into a managed result set (file).
11. Ms Love was asked when in the process did she identify that records needed to be retrieved from archives. Ms Love advised that the active retrieval required records to be approved, which meant that the searcher needed to accept certain search results. On 2 December 2020 Ms Love said she determined that an extension was required.
12. Ms Love was asked about [10] of her affidavit where she stated: On 12 November 2020 I searched ECM to locate the requested information but could not find the original email from 8 May 2020 nor external emails responding to the original email. For this reason and because the Application was also seeking internal emails, I formed the view that I needed to search for and retrieve the requested emails from the Council's email archives to ensure that I located all the information within the scope of the Application.
13. Ms Love was asked why she could not find the 8 May 2020 email. She said that she needed a Rates confirmation and did not have the security permissions in the ECM to view that email. Ms Love said that she later found the originating email on 12 November 2020 in the email archive through 'I-Ferret'.
14. Ms Love was asked why when she was conducting the search was she using broad parameters. When asked why she did you not put the specific date in which would have been on the emails, in the first instance, Ms Love said that to conduct searches in that manner was not her practice.
15. Ms Love was asked about a record which indicated that she had executed the same search 13 times. She said that she could not recall why she had repeated that search so many times. She did say that the managed records system is like a spread sheet summary to allow you to assess a document's relevance.
16. At this point of the cross examination the Tribunal inquired of the witness about certain matters relating to the search process, (s- 38 (1) NCAT Act) specifically the search, retrieval and analysis stages. It was clear that the information could not be analysed until it had been identified and through whatever means - retrieved. Ms Love said that she ran a search of the archive having done other searches.
17. Mr Walton put it to the witness that Ms Love and Council did all of the searches early on and then sat on their hands to delay the process. This was refuted by the witness.
18. In her affidavit Ms Love deposed that Council archives their emails automatically after 90 days, in accordance with IT standards. This it was submitted is to prevent inboxes becoming too large and to ensure that records are kept. Ms Love deposed that council officers do not routinely register internal emails, and it is at the officer's discretion. Ms Love deposed that she began her searches on 12 November 2020 searching ECM. As she could not find the original email or external emails responding to that email, and because Mr Walton was also seeking internal emails, Ms Love formed the view that she needed to search and retrieve the requested emails from the Council's email archives. [10] of Ms Love's affidavit.
19. Ms Love also deposed that Council has two email archives, both being cloud storage based platforms hosted by different providers. To locate view and retrieve these archived emails Ms Love needed to utilise the 'I-Ferret' program, a web based search engine.
20. Ms Love deposed at [17] that to use 'I-Ferret' users must be logged onto Council's IT network. Ms Love gave evidence that she needed to access aspects of the system remotely due to working from home. At [34] and [35] Ms Love deposes: 34.After a period of leave, I resumed the review and retrieval process from 14 December 2020 to 21 December 2020. 35.At that time I was working from home due to NSW COVID-19 health issues. I had to access 'I-Ferret' by first logging into Council's network via Remote Access system. (VPN). As the summer school, holidays had commenced, my broadband speed was slower than usual due to increased network traffic. I found that the responsiveness of 'I-Ferret' over the VPN was much slower than in usual circumstances working in the office and directly connected to Council's network.
21. Earlier in her affidavit at [31] and [32] Ms Love deposed: 31. Between 12 November 2020 and 2 December 2020 I began the process of reviewing the records in the 'I-Ferret' managed result set online., to identify and prepare requested information for retrieval. 32. On 2 December 2020 I formed the view that I would not be able to finish processing the Application within the decision period as I would need further time to complete my review and retrieval of the records saved in the managed results set.
22. In re-examination Ms Love was asked how she accessed the archive from her desktop. Ms Love said that in the Council offices there is no further process of any significance once logged onto the network. However when working remotely she used her smartphone to verify herself as a user with a code logged onto her browser. Ms Love conformed that the email archive is cloud based. In response to a question contrasting the complexity of access the archive that the ECM, Ms Love said that 'it was a bit more complicated'. When she was working from home this created a 'two factor identification' requirement for her.

Council's Submissions

1. In written submissions it is clear that the Council essentially disagrees with one aspect of the Information Commissioner's position, that being that any records retrieval must occur in the context of a record being retrieved from a physical location.
2. Council submitted that the GIPA Act does not restrict the term 'archive' to a physical place such as a library or warehouse. The Council submitted that it was commonplace to refer to a 'digital back end server' as a 'digital archive' and receive a code or token to log onto the system. However Council also submitted that not only is an act of retrieval required, but that special permissions are required to access the 'I-Ferret' software.
3. Council submitted that the starting point for the Tribunal were the words in s 57 and that the meaning was clear. Council noted that whilst the decision to impose a processing charge is a reviewable decision, the decision to extend time was not a reviewable decision. That being because a decision under s 57 (2) is not listed in s 80 even if the upshot of that decision (the imposition of a processing charge) is reviewable.
4. The Council submitted that there is no hidden text in s 57 and that Council was not required to go beyond the words in the section.

Information Commissioner's Submissions

1. The Information Commissioner in written submissions re-ventilated many of the points made in their review report as noted above at [16] - [18]. The Information Commissioner noted the context of s 57 of the GIPA Act.
2. Reference was made to the former Freedom of Information Act 1989 (NSW) the FOI Act, which was the precursor to the GIPA Act. The equivalent section to s 57 of the GIPA Act was s 59B of the FOI Act. In 1992 that section was amended to reduce the time that an Agency ordinarily had to process an application. The second reading speech from Hansard was reproduced in the Information Commissioner's written submissions as it was in their Report. Page 3590 of Hansard (6 May 1992) records: The bill reduces the maximum time within which an agency must deal with an application under the Act from 45 days to 21 days. It is considered that in most circumstances this should be a sufficient time within which to process FOI applications. There may be some difficulties where archived material is sought or where there is a need to consult people regarding their business or personal affairs before a document can be released. This bill allows agencies when faced with difficulties in meeting the 21 day deadline due to special circumstances such as those mentioned, to extend the time period for dealing with an application by a further 14 days.
3. The Information Commissioner noted that the provision was introduced at a time when the storage and retrieval of documents electronically was not common. The Information Commissioner submitted that it would be unreasonable if agencies were provided with extra time for any request which sought information stored on a digital server. Furthermore it was submitted that the manner in which an agency routinely saves records such as emails to its normal electronic record keeping system does not ordinarily give rise to a special circumstance that would allow it to exercise a discretion under s 57 (2) (b) of the GIPA Act.
4. The Information Commissioner also submitted that digital archives generally have the benefit of being easily accessible and searchable, therefore facilitating the quick retrieval of archived records. The Information Commissioner noted fro the Council's audit log (served in the proceedings) that the 'I-Ferret' was first used on this matter on 12 November 2020 (two days after receiving the application) and no further searches were performed in I-Ferret' until 23 December 2020 and that this evidence would be relevant to the Tribunal in determining the factual circumstances of the case.
5. In oral submission at hearing the Information Commissioner submitted that in addition to considering whether the context of retrieval of records extended beyond retrieving items from a physical location, the Tribunal should turn its mind to whether that 'retrieval', involved some degree of difficulty involving time, which would manifest as the need to make arrangements etc. regarding access.

Mr Walton's Submissions

1. Mr Walton agreed with the position of the Information Commissioner that the decision to impose the processing charge was not justified. In addition Mr Walton submitted that the matter was not overly complex because other than the documents which will not be provided (on the basis that Mr Walton already has access to them), only 12 further documents will potentially be released as a result of the GIPA application process. No documents had been identified and withheld on over-riding public interest considerations against disclosure or excluded information basis.
2. Mr Walton submitted in summary that the changed circumstances of Council in respect of leave and working from home provisions were not matters relevant to s 57 of the GIPA Act.
3. Mr Walton submitted that the extension of time under s 57 (2) (b) must be lawful. If it was not lawful (irrespective of whether it was reviewable), that gave rise to grounds for setting aside the basis for the decision to impose the processing charge (s 80 (j)).
4. Mr Walton concluded his oral submissions by stating that contrary to the need to extend time by 10 working days, the information in question was available on the second day that Council dealt with the matter.

Consideration

1. The jurisdiction of the Tribunal to consider the s 80 (j) issue requires (on the current facts) the Tribunal to undertake a task to determine whether on the available evidence s 57 (2) (b) was enlivened. If it was enlivened (subject to the issue about personal information below) the Council were authorised to raise the relevant processing charge, as the 10 day extension would apply and the decision was therefore made within the extended decision time permitted under the GIPA Act. If not, then the decision was late and no charge can be applied.
2. So whilst the Council is partly correct in submitting that the decision to extend time is not a reviewable decision, the Tribunal is tasked to determine if the extension of time was authorised by the GIPA Act on the available facts and evidence, and as a result apply the analysis to the matter within jurisdiction, the applying of a processing charge.

The retrieval from archives question

1. The Council referred to the case of Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27 (Alcan) where the High Court emphasised at 47. 47. construction must begin with a consideration of the text itself and while the language employed is the surest guide to legislative intention, the meaning of the text may require consideration of the context which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
2. Both the Council and the Information Commissioner used the same dictionary definitions of the term 'archive', both from the Macquarie Dictionary (online). 1. the non-current documents or records relating to the activities, rights claims, treaties, constitutions, etc., of a family, corporation, community or nation. 2. a place where public records, or other historical documents are kept. 3. the agency or organisation responsible for collecting and storing such documents. - verb (t) (archived, archiving)
3. Also, arising from this both the Council and the Information Commissioner submitted that the second definition applied to the facts in these proceedings. However definition two requires the following steps: records are required in relation to an access application, the records are in a place where public or historical records are kept, and an act of retrieval is necessary to obtain the records.
4. The Hansard reference above concerning the former FOI Act envisages physical retrieval form a records repository. Physical records would be identified, possibly from an index, and someone would have to physically access the records and assess their relevance (in the example of a GIPA Act application). This would clearly take time and resources in a number of steps. The officer would need to identify that records may exist within scope, then they would have to make the necessary arrangements to obtain physical access to those records, possibly ordering them from a repository and making arrangements for a time to attend and inspect. Alternatively they might have been ordered in from the repository for inspection once delivered. Only at the time of inspection would it become clear whether the information was specifically relevant and responsive to the application.
5. The Information Commissioner submits that this active process outlined above is necessary to enliven s 57 (2) (b). The Council says that the records to not need to be physical records, and that the same provisions apply to digital records. In essence the council's position is merely that the records must be marked as archived and that access then needs to be made to those records.
6. A number of matters were raised by Council. These were: the access to the digital archive involved a more complex process than non archived records; special permissions were required; special extra steps were necessary. Mr Walton submits that the Council merely identified the records early on and accessed them some weeks later with no real explanation for the delay. As noted above Mr Walton refers to the Council 'sitting on their hands'.
7. The main thrust of the Council's position on s 57 (2) (b) was that the GIPA Act did not impose a physical act of retrieval requirement. Council submitted that ; The terms of the GIPA Act provisions do not restrict the term 'archive' to a physical place such as a library or warehouse, nor is the word itself limited to such a meaning. It is commonplace to refer to a digital back-end server as a digital 'archive'.
8. As noted above, in this regard Council departed for the position of the Information Commissioner.
9. A general authority for the correct approach to take in instances concerning statutory interpretation arises in the case of Project Blue Sky v Australia Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In that Case Brennan CJ noted the following: 69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
10. In many ways the case of Alcan cited by the Council as set out above supports and follows on from the position established in Blue Sky. The provisions in question focuses on the allowance of further time because of time and resource imposts, additionally imposed on an agency once material is identified as archived. When viewing the Statute as a whole in that context, and having regard to s 3 (2) (b) of the GIPA Act, it appears that the ability to extend time should only apply when further resources need to be applied, resources of which by their nature would require extra time to be spent on the task. This is in my view what the legislature intended when drafting the objects. (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.
11. In many ways s 3 (2) (b) captures the essence of this review, with references to 'promptly' and 'cost. Section 3 (2) uses the language 'as far as possible' when referring to the exercise of discretions under the GIPA Act. These provisions are relevantly: 3 Object of Act (1) (a), and (b), 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. (Emphasis added)
12. I agree with the Information Commissioner's submission that the process involved (as described by the Council), must involve some difficulty because Council was required to undertake an act of retrieval from a place where public or historical records are kept, for the provision to be enlivened. The Information Commissioner noted that the records sought by Mr Walton were at the time only a maximum of eight months old. I also agree with the Information Commissioner's submission that given how recently these records were created, it is concerning that Council's position is that it needs additional time to search its email archives to retrieve them.
13. In addition I agree with the submissions of the Information Commissioner as set out in their report (reproduced at [18] above). I disagree with Council's position that retrieval from a search engine was a factor contemplated by the Legislature when one has regard to the context of the GIPA Act as a whole and the objects.
14. Council's own evidence does not point to any matters of significant about retrieval of these records from archives. Ms Love was one of two officers in the Council with 'I-Ferret' permissions. She did not require any extra or special permissions on the available evidence and it appears that this was a standard part of her duties when dealing with records, especially as Council archives then after such a short time period (three months). The only issue of permission related to the need to access a rates arm of the database where as an officer not working in that area, she required permission. This is true of many agency employees who perform a role exclusively or part time as a Right to Information Officer dealing with GIPA Act applications.
15. Additionally, the fact that Council uses a Cloud based digital archive system is not in any way unusual or time consuming. Records are retrieved with broadly the same time constraints as if they were on Council's own servers. No evidence was adduced to establish that the process took any greater time. The fact that searches were being done on a digital archive does not of itself establish any additional time requirements. No evidence was given on this point. Whilst the Council submitted that the response to the application actually took longer than the amount applied in the processing charge, little evidence was adduced to establish this.
16. Ms Love's evidence was that she commenced the process, did some of the work and then took a period of leave. Her evidence was that when she returned from leave searches were slower because the bandwidth of the Internet was being utilised by children some of whom had already commenced school holidays. This matter was not established by any evidence other than Ms Love's belief.
17. On a related issue Ms Love did indicate that the computer response times were slower because (a) she was working from home and not on the Council's direct network, and (b) she had to externally or remotely connect to that network. Then the Internet traffic issue compounded the delays.
18. It seems reasonable to infer that these impediments and delays would have occurred to some extent whether Ms Love was accessing 'archived' material held in the Cloud, or more recent documents held solely on Council's servers. The evidence indicates that well before the 20 days were up Ms Love had saved the data retrieval results in the Managed Results Sets.
19. Ms Love's evidence that she was required to access the network via a token or code sent to her smartphone again related to her working remotely. These matters are not matters caused by or related to Mr Walton's application and appear related to understandable business decisions made about the Council workplace. It is common practice for persons accessing a business computer network remotely to require a two step (or more) verification process, in addition to a user ID and a password. In my view these matters are unremarkable in the current business environment, especially so with the additional issue arising from Council taking the business decision to archive material at such an early date.
20. Despite the affidavits of Ms Love and Mr Phillips, and their evidence at hearing, Council has not established, even if I were to accept the arguments set out above, why the process took a full 29 plus business days to conclude.
21. I disagree with the notion that once digital records are digitally archived, the provisions of s 57 (2) (b) would be enlivened. Council's evidence indicates that records are routinely archived after a period of only 90 days. That would entail that in the majority of GIPA applications citizens would be seeking information from Council that has been archived. Cleary irrespective of the retrieval process this cannot be what the provision was intended to refer to. Such a situation seems somewhat irrational in that a record less than three months since its creation is 'archived' and as a result requires a simple (or complex) process of retrieval.
22. I therefore find as a preliminary point that Council has not established that the actions in dealing with Mr Walton's access application involved the requirement to retrieve records from a records archive. In that regard I find that the decision period was not able to be extended beyond the 20 working days specified in the GIPA Act, noting that Mr Walton was neither asked, nor consented to any extension.
23. Based on that preliminary finding, it is then open to the Tribunal to find on review that Council did not complete the access application process within the period specified by the GIPA Act. As a result the application of the processing charge is without basis, and upon review can be set aside. Prior to making that ultimate finding I will consider the other relevant issue concerning the grounds to waive a processing change.

Personal Information exemption

1. At hearing the Tribunal noted the following about the personal information question:

• The application was made by an individual (the applicant Mr Walton)
• The application sought personal information of Mr Walton including information about a business owned and operated by Mr Walton and his spouse.
• There was no evidence that the external primary source of the information (emails) relevant to the application originated from anyone other than Mr Walton.
• Mr Walton provided his personal driver's licence to identify him as the applicant.

1. Council submitted that the information is not information about Mr Walton, but information about a water account.
2. In addition on the personal information aspect of his application Mr Walton submitted that he could be identified from the account.
3. I note that Mr Walton when making his GIPA Act application identified the application as being for his personal information. I also note that the matter relates directly to him, irrespective as to whether the account is registered in a business name. As the owner operator of the business Mr Walton was seeking to get to the bottom of various matters relating to the water discharge factors applied by Council to his land. The context being that for various periods around the bushfires and Covid 19 the restaurant was closed. The issue about a second water meter (in exchanges between Council and Mr Walton) did not relate to any other person or occupier, but arose in the context of a dual occupancy (residence and business premises) and the need to calculate how much water should be charged at the domestic consumption rate rather than the commercial or industrial rate,
4. The fact that he characterises his personal information in different ways on his application form (relates to ourselves as individuals and as a company N & D Walton Pty [sic] and as the Tern Inn Restaurant ) is in my view of no relevant import. Personal information will turn on the content and context of the information in keeping with the overarching definition from cl 4 as set out below, 'information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual ….. whose identity is apparent or can reasonably be ascertained from the information or opinion'.
5. Whether the access form correctly answers / records yes or no to the question at 5. of the pro-forma: 'are you seeking personal information Yes / No', is also of limited relevance. The form says 'circle one'. Mr Walton appears to have marked yes but in doing so leaves 'no' unmarked and clear to read. The notation on my assessment contains some ambiguity but the nature of the question and answer do not create any legal consequence. The obligation of an agency is to assess the scope of the application and having identified the information held, determine what provisions of the GIPA Act apply to its release. It would appear that the question on the pro-forma application form arises only to assist agencies in efficiently dealing with applications. It does not create a legal consequence for either an applicant or an agency as the legal consequence crystallises only when the agency assesses the information collated.
6. The Information Commissioner's Guideline 4 defines personal information beyond the statutory definition in the GIPA Act and provides practical examples. The statutory definition from Schedule 4 Clause 4 being: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following - (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
7. The Guideline provides the following outline of personal information:

• A person's name;
• Personal address and contact details, such as email and phone numbers;
• Information about a person's family life;
• Financial information, including bank accounts and investments;
• Employment information, including details of salaries, personnel records, and recruitment;
• Information including job recommendations and referee reports;
• Photographs or audio or video recordings, including CCTV footage, which identifies individuals;
• Information about a person's hobbies or interests;
• Information about a person's education, including the degree they obtained and the marks they were awarded;
• Membership of voluntary or professional bodies, including trade unions;
• Information about a person's religion;
• Information about sexual preference; and
• Alpha-numeric or biometric information that can identify an individual and medical and health information.

1. I have reviewed the information contained within the material released to Mr Walton (due to it already being in his possession), and the information flagged for release to him contingent upon settling of the processing fee charge. Upon review I find that the information meets the criteria as described at [102] and to some extent that described at [103] above. In particular (as it is within scope and relates clearly to the application), the information is characterised by the description and summary of the context of the application as set out at [100] above.
2. In my view the information is not third party information and is clearly within the grounds of cl 4 (1) of Sch 4 of the GIPA Act. As noted, the information is information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. It concerns Mr Walton's communications with Council over a personal matter. The fact that the matter might have a business or commercial flavour is in my view of little relevance, as the context of all of this concerns Mr Walton and ultimately his ability to negotiate with Council on his obligation to meet any charges.
3. All of the circumstances and context of the information caught by the application concerns Mr Walton. Whilst in some minor aspects the information is mixed information, that does not detract from the situation that the information continues to be information or opinion or about an individual whose identity is apparent or can reasonably be ascertained. In Mr Walton's application and reproduced in the Council's submissions reference is made to the information being: The information sought relates to ourselves as individuals and as a company N & D Walton Pty (sic) and as the Tern Inn Restaurant (Resp Subs 9.9 16/8/21)
4. In my view this description illustrates how the mixed information retains multiple properties and characterisations. The information is Mr Walton's personal information, that of his spouse and also (in part) the business information of their business. Arguably the later would (by itself) constitute personal information as soon as Mr Walton's identity could be ascertained from the information.
5. I therefore find that the information (amongst other things) constitutes Mr Walton's personal information. It is not the information of third parties or solely the information of government including local government. It is mixed information as set out at [105] and [106] which constitutes government information.
6. Arguably all personal information held by agencies constitutes mixed information (personal and non personal) as the context of the personal information being held by a government agency gives it an additional characteristic other than just being personal information. For example information that a person owns a property in a local government area is both personal information and non personal information. It is 'mixed' information. Additionally, depending on the context that the information is being viewed or the purpose (if any) to which the information is applied, it may take on further characteristics. It would include land titling information, local council information, potentially water utility information, land valuation information and clearly personal information.

Conclusion

1. The correct and preferable decision is that the decision by the Council to impose a processing charge on 2 December 2020 is set aside.
2. I therefore make the following order:

Orders 1. The correct and preferable decision is that the decision by the Council to impose a processing charge on 2 December 2020 is set aside. .

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

Amendments 10 February 2022 - Par 91 5th last word changed from 'as' to 'at'.

Par 94 7th last word changed from 'nether' to 'neither'. 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: 10 February 2022