Webb v Goulburn-Mulwaree Shire Council

Jurisdiction

1. Pursuant to s 55 of the Administrative Decision Tribunal Act 1997 (NSW) (ADR Act), the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". An "administrator" is defined as the person or body that makes the decision under enabling legislation: s 8. Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of "reviewable decisions" made by "an agency".
2. A decision that government information is not held by the agency is a reviewable decision: GIPA Act s 80(e). There is no dispute that the Council is an agency for the purposes of the GIPA Act.
3. Accordingly, the Tribunal has jurisdiction to hear and determine this application.

Administrative review

1. In determining an application for review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act s 63(1). For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: ADR Act s 63(2).
2. The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: ADR Act s 63(3).

The agency's search obligations

1. Section 53 of the GIPA Act sets out the obligations of an agency in respect of the searches it must undertake in response to an access application. It provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) 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. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) 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. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

The evidence

1. The Council relied on two witness statements provided by Ms Timothy who is employed by the Council in the role of Business Manager Governance. Ms Timothy was cross-examined by Ms Webb at the hearing.
2. Ms Timothy is responsible for managing and overseeing access applications made under the GIPA Act and was responsible for managing and overseeing Ms Amanda Keegan, who is the Council's Information Access Officer, in determining Ms Webb's request. Ms Timothy's testimony provides details of the searches which were undertaken in response to Ms Webb's access application, as well as information regarding the Council's record management system. Relevantly Ms Timothy says: 1. The Council's record management system is an electronic document management system which is the Council's official repository for Council records. Searches of the electronic document management system can be undertaken for metadata and content of records. 2. On 17 February 2023 Ms Keegan carried out the following searches of the record management system which did not yield any results: 1. Searches using a combination of key words and phrases including "Allan Powell", "Powell", "William/Bill Warne", "Warne", "Deborah/Deb Ferguson", "Ferguson"; "Warne and meeting minutes"; "Ferguson and meeting minutes"; and 2. searches of Council's case files for the NCAT proceedings which resulted in the decision in Palerang v Powell. 1. Ms Keegan informed Ms Timothy that she spent 2.25 hours searching for the documents, including running the searches and making inquiries of Ms Timothy. 2. Ms Timothy does not recall the meeting referred to at [43] of Palerang v Powell (the meeting) but does recall that she had a number of conversations with the individuals referred to in that paragraph. She does not recall making a file note of those conversations. 3. Ms Timothy searched her physical office for any copies of file notes made during the meeting "just in case", but did not find any file notes or meeting minutes. She says she is not surprised by this as she does not usually keep formal records of informal meetings or conversations with officers unless deemed necessary. 4. After receiving Ms Webb's written submissions, on 19 June 2023 Ms Timothy undertook further enquiries and searches of the Council's record management system to confirm whether the original searches conducted by Ms Keegan were correct. For that supplementary search Ms Timothy used the same search terms as Ms Keegan had used, and also conducted an additional search using the following search terms: "Powell", "D Ferguson", "Warner", "section 110" and "GIPA1314017" with a filter of "meeting" and "minutes". The supplementary search did not yield any relevant results. 5. On the same day Ms Timothy also conducted a supplementary search of her physical office and did not find any relevant file notes or meeting minutes.
3. Attached to Ms Timothy's statement of 27 June 2023 are two one-page documents prepared by the Council in relation to Ms Keegan and Ms Timothy's respective searches. Each document is in the form of a table with columns entitled "Area searched", "Key words & phrases", "Start time", "End time" and "Total time". Each column contains notations regarding the relevant searches.
4. Ms Webb did not rely on any witness evidence but attached to her written submissions copies of the following documents: 1. A document entitled "Goulburn Mulwaree Council Records Management Policy" (the records management policy); and 2. A copy of what appears to be an excerpt from AS ISO 15489, which is an Australian standard in relation to record keeping referred to in the records management policy (the standard).

Submissions

1. Council says, in summary: 1. The respondent has undertaken reasonable searches in response to Ms Webb's access application. 2. The respondent did not find any relevant records after conducting those reasonable searches. 3. There were reasonable grounds to believe that the meeting minutes existed and that they were documents of the agency. 4. However, the evidence establishes that it is not usual practice to prepare minutes of informal meetings. 5. Reasonable searches have been undertaken including physical searches of Ms Timothy's office and electronic searches using a variety of search terms, and the respondent has dedicated 2.25 hours to conducting the searches. 6. The correct and preferable decision to be made by the Tribunal is to affirm the decision.
2. Ms Webb's submissions contain a number of arguments which are not relevant to the issue I am required to decide. It is not necessary for me to repeat those points in this decision. In summary Ms Webb relevantly submits: 1. It is reasonable to expect that the records management policy was in place at the time of the meeting; 2. The Council has provided no evidence of the searches it carried out such as "a screen shot of the actions undertaken" and it is not reasonable to expect Ms Webb or the Tribunal to accept the Council's claims regarding the searches they had conducted when no evidence has been provided of those searches. 3. The meeting was unable to be qualified as "informal". 4. Taking account of the evidence which the Tribunal recorded at [43] in Palerang v Powell, the records management policy and the standard, and the fact that the records requested concerned the planning and initiating of collective enforcement litigation by multiple NSW government agencies against Mr Powell, it is not plausible that no minutes of the meeting exist and Ms Timothy's evidence lacks credibility.

Consideration

1. The principles in relation to reasonable searches under the GIPA Act were canvassed in detail in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska). Relevantly, the Appeal Panel said: [42] The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. [43] In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "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(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. [44] In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
2. I apply those principles to the circumstances of this matter.
3. Ms Webb's submission that the Council has provided no evidence of the searches it undertook is incorrect. The Council relied on Ms Timothy's witness testimony which sets out in detail the searches conducted by the Council and attaches copies of records prepared by Council in relation to those searches. Ms Timothy's testimony and the attachments to her statement are evidence of the searches Council conducted.
4. Ms Webb's allegation that Ms Timothy's evidence is not credible is not substantiated. Her cross-examination of Ms Timothy did not identify any inaccuracies or anomalies in Ms Timothy's evidence. I found Ms Timothy's evidence to be clear and consistent and accept her evidence as to the electronic and physical searches carried out by the Council, and as to the results of those searches.
5. Having considered that evidence, I am satisfied that the searches identified in Ms Timothy's statements were reasonable. With regard to the electronic searches, I accept that the search terms used to conduct the electronic searches were appropriate and sufficiently broad, noting that Ms Webb herself does not dispute the adequacy of the search terms and indeed has asked that any further searches be conducted using the same search terms.
6. With regard to the physical searches, I am satisfied that Ms Timothy conducted two separate searches of her office to look for file notes.
7. There is no evidence to substantiate Ms Webb's assertion that the meeting was a "formal" meeting and I am not satisfied that this was the case. I accept Ms Timothy's evidence that it is not usual for file notes or records to be kept of informal meetings and conversations, and that Ms Timothy does not recall the meeting or making a file note of the meeting. In such circumstances it is entirely plausible that no records of the meeting are held by Council.
8. No evidence has emerged since those searches were conducted which might tend to provide that the requested records are in fact held by the Council.
9. Ms Webb's submissions seem to be critical of the Council's record keeping processes and suggest that minutes of the meeting should have been kept in accordance with its own records management policy. Whether or not this is the case, the Tribunal is not empowered under the GIPA Act to review the Council's record keeping processes or to determine whether there has been compliance with its record management policy. The only issue to be determined by the Tribunal is whether the decision that the information sought by Ms Webb is not held by the Council is the "correct and preferable decision". In this regard Council's record management policy may well be relevant to considering whether there are reasonable grounds to believe the agency holds the requested documents, and whether the searches carried out were adequate. However, in this instance the Council does not dispute that such grounds exist, and has provided evidence of a range of electronic and physical searches it carried out to locate the documents. In any event, neither the records management policy nor the excerpt from the standard which Ms Webb has provided contain anything which suggests that the Council's own policies required it to keep minutes or a file note of the meeting.

Conclusion

1. For these reasons I am satisfied that the searches that the Council undertook to locate the documents sought by Ms Webb were reasonable for the purposes of meeting its obligations under section 53 of the GIPA Act, and that the searches yielded no relevant documents. In my view it is unlikely that further searches would be successful in locating information which falls within the scope of the access application.
2. In the circumstances the correct and preferable decision to be made by the Tribunal is to affirm the Council's decision.

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: 25 July 2023