Webb v Port Stephens Council

Tribunal's review of the No Documents Decisions

1. We begin by dealing with the appeal in so far as it concerns the Tribunal's review of the No Documents Decisions - these were the Tribunal decisions in matter numbers 2016/00378011, 2016/00378010 and 2016/00377987.
2. These were merits review decisions by the Tribunal under s 63(1) of the Administrative Decisions Review Act 1997 (ADR Act). The task of the Tribunal was to decide what was the correct and preferable decision having regard to the material then before the Tribunal.
3. In the merits review by the Tribunal the onus was on the Council to establish that its decision was justified: s 105 of the GIPA Act.
4. An important provision of the GIPA Act in relation to the merits review was s 53, which 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.
5. The GIPA Act makes provision for how an agency is to decide an application for access to information. A decision that the agency does not hold the information is one of the decisions by which this can occur: s 58(1)(b). Such a decision is a reviewable decision: s 80(e). One of these three decisions (8010) was not an explicit decision that the Council did not hold the documents, but it involved an implicit decision that it did not hold any additional documents to those to which access was provided. No party before the Tribunal, or on appeal, took issue with the ability of the Tribunal to deal with the matter on the basis that it was an implicit decision that the documents were not held: see the discussion and decision in Amos v Central Coast Council [2018] NSWCATAD 101 at [15] to [34].
6. Ms Webb's ability to appeal from the result of the merits review was governed by s 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), which provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. ….
7. Ms Webb did not have legal representation on the appeal, but it is apparent from her Notice of Appeal and submissions that she claimed there was error of law by the Tribunal and, as well, she sought leave to appeal.
8. As to the grant of leave to appeal, we apply the following from the decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

The information sought - the No Documents Decisions

1. In matter number 2016/00377987 (7987) the Tribunal's review concerned an application for access to: A full and unedited record of the dates Council published the following statement/decision on its website under its Non-Disclosure Log for GIPA Applications, this statement being "Release of information would expose a person to serious harm, harassment or intimidation", separate to those it published relating to the DA No:483/2011. The period of time such statements, if any, remained on Council's website.
2. The Council's original decision, and that made by it upon a re-determination, was that it did not hold such documents: at [34] and [35] of the reasons.
3. In matter number 2016/00378010 (8010) the Tribunal's review concerned an application for access to: A full and unedited record of the dates Council consulted with third parties regarding the objecting submissions to the DA No: 483/2011, specifically relating to only those persons who are not employed by Council in any capacity including on a sub-contractual basis. Confirmation as to the nature of the consultations including whether or not those consultations were written or verbal, in person or over the telephone.
4. In this matter the Council's original decision, and that made by it upon a re-determination, was to provide access to identified information: at [63] and [66] of the reasons.
5. In matter number 2016/00378011 (8011) the Tribunal's review concerned an application for access to: Copy of Councillor Ken Jordan's request to Council staff to call the DA No 483/2011 before the free Council public forum. We are advised this request was made in August 2012.
6. The Council's original decision, and that made by it upon a re-determination, was that it did not hold such documents.

The Tribunal's reasons

1. The Tribunal decided to apply the approach that Judge O'Connor, now Deputy President of this Tribunal, had applied in Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 which, in turn, adopted the approach taken in Shepherd and Department of Housing, Local Government and Planning [1994] 1 QAR 464. This approach required answers 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.
2. In relation to the first question, the Tribunal adopted the remarks of Judge O'Connor in Cianfrano v Director General Department of Commerce [2006] NSWADT 195 to the effect that an applicant must put some credible material or submissions before the Tribunal to establish that there is an arguable case concerning the existence of the documents, that it is not enough for an applicant to base the assertion on a deep-seated distrust of the agency and that care must be exercised in putting the agency to the cost and effort of making further searches.
3. The Tribunal took each matter in turn. In each case, it referred to the evidence from Mr Wickham in support of the Council decision. It noted that Mr Wickham attended the hearing and was cross-examined and that his evidence did not vary. It noted that Mr Wickham's evidence included evidence as to the searches that Council had carried out and that these included both physical and electronic searches.
4. Mr Wickham was the Governance Manager and Public Officer at the Council. He had made the decisions being reviewed.
5. In 7987 the Tribunal expressed the view that the circumstances were comparable to Cianfrano in the sense that Ms Webb had made broad assertions that were clearly based upon a deep seated distrust of the agency.
6. In 8010 the Tribunal expressed the view that Ms Webb had not provided any reasonable basis to support the view that further searches would locate additional information.
7. In 8011 the Tribunal expressed the view that Ms Webb did no more than present her opinion that the information sought should have been created and, therefore, should be held.
8. In each case the Tribunal said it was satisfied that the searches undertaken by Council were reasonable searches.
9. The Tribunal referred to the fact that each of the decisions under review were re-determined decisions (whether by agreement of the parties or direction of the Tribunal).

Grounds of appeal and submissions in support of the appeal

1. In the Notice of Appeal, under the heading "Leave to Appeal" the following matters were stated: Respectfully, the Tribunal has been remiss in the following: • Not taking the full nature and classification of the documents and information requested into proper account, reflected in several paragraphs of the Tribunal's Decision. • Not properly considering the complete omission of evidence of searches undertaken by the Respondent to the proceedings. • Not taking the Respondent to the proceeding's amended statement, confidential discussions, and closing submissions into proper consideration in forming its decision. • Not allowing the Applicant to the proceedings to cross-examine the summonsed witness. • In allowing the summonsed witness to participate and give evidence during the confidential session of the proceedings, the Applicant to the proceedings was disadvantaged. • Not accurately recalling the statement and submissions of the Applicant to the proceedings, reflected in several paragraphs of the Tribunal's Decision.
2. We note that these matters also related to the appeal in respect of matter number 2016/00378165 (8165), referred to below.
3. In written and oral submissions the appellant submitted:

In 7987: 1. That by relying upon the above remarks in Cianfrano decision, the Tribunal reversed the required onus of proof on the Council to justify its decision. 2. The Council did not provide any proof it had conducted any searches and, therefore, did not prove it could not locate the information requested. 3. There was new evidence from Ms Webb's own searches of a particular website Mr Wickham had referred to which she claimed showed that Council had at all times had access to the information requested. She sought to demonstrate this by attachments from pages of the website referred to. These pages contained an unexplained reference to a date of 6 March 2014 under the reference "1 capture".

In 8010 1. The submissions in (1) and (2) were repeated.

New evidence 1. The appellant made reference to some parts of the transcript of the hearing before the Tribunal, as well as to the context concerning one particular record that she says, to her knowledge has been omitted from the list - a record of a telephone conversation with one of the objectors. In this regard, the appellant made reference to a letter dated 8 August 2012 from Harris Wheeler Lawyers to MRM Thompson Norrie Lawyers which makes a reference to the Council having spoken to Mr and Mrs Logan on 4 August 2012.

In 8011 1. Relied upon the submissions in (1) and (2) above.

New evidence 1. New evidence supplied by the Council showed that Councillors followed loosely established protocols for bringing matters before Council and that in these instance Councillors were able to write a note to arrange for a development application being called to the Council. Also, Council's Minutes of Council Meetings showed that staff regularly brought matters to the Council of their own accord. We note that the various documents relied upon by the appellant were formal or informal forms for calling for a development application to be the subject of a report to Council for Council's determination of the application. This does not appear to be the equivalent of the event addressed in the request for information: see [20] above. 2. In oral submissions, Ms Webb said that she found it difficult to accept that on this one occasion the Council does not have the form used for calling the matter before the free Council public forum.

Consideration - reversal of onus of proof

1. We do not agree that the Tribunal erred in its approach to the onus of proof. More precisely, we do not think the Tribunal failed to apply s 105 of the GIPA Act concerning the burden on the Council to justify its decision. We do not see it as having done so by its reliance on the passage in Cianfranco referred to above concerning the need for an applicant to present credible material in support of its challenge to the decision.
2. In this regard, first, we note that the Tribunal saw the s 105 onus as applicable: at [15]. Second, when it came to apply the law to the facts of each case, the Tribunal began by examining the Council's evidence from Mr Wickham in support of each decision. It then addressed the counter material and arguments from the appellant. We see this as involving a correct application of the burden in s 105.
3. Where there is relevant and credible material presented to support the decision, in practical terms, a burden will fall on the challenger to try and overcome or undermine the case from the agency. In our view, this was how the Tribunal applied the passage from the Cianfranco case.
4. The Tribunal in Amos, helpfully, explained the correct approach in these terms (at [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.
5. For the above reasons, we do not agree that the Tribunal failed to apply the terms of s 105(1).

Consideration - no proof of searches

1. We do not agree with the appellant's submission that in each of these three cases the Council did not provide any proof it had conducted any searches and that, therefore, it did not prove that it could not locate the information requested.
2. Naturally, it would be expected that in many cases in order to justify a decision that information was not held, an agency would address the searches it had made for the information. But, that was what the Council did in this case through the evidence of Mr Wickham: see at [37], [68] and [52].

Consideration - new evidence

1. In respect of each of these three matters we have considered the appellant's submissions presented under the heading of "New Evidence" and as was presented in oral evidence.
2. Leaving aside for the moment the issues potentially raised by the attempt to rely on new evidence, these submissions face the limitations referred to above concerning the grant of leave to appeal because no question of law arises. However, the appellant's submissions do not address these obstacles to an appeal.
3. Rather, the appellant points to new material said to provide indications that Council should have or does have the information which is sought despite the evidence of the searches undertaken. We have considered this material as summarised above. None of it demonstrates that the Council held the information sought or that Council's searches were insufficient. So far as the standard for leave to appeal is concerned, none of it demonstrates something more than the Tribunal was arguably wrong, or demonstrates an error that can now be seen as a plain error of fact.
4. Furthermore, the appellant presents no reasons why this new material could not have been discovered and presented by the appellant at the hearing below. That is the time when the parties should bring forward all relevant material available to them. Ordinarily, leave to appeal based upon evidence not adduced at the hearing below would only be granted in circumstances where the applicant for leave establishes that the material was not reasonably available at the time of the hearing in the Tribunal. Otherwise, potentially, parties will be able to have two hearings on the merits, with the second hearing examining further evidence that was not presented on the first hearing even though the new evidence could have been obtained for the first hearing. Such an approach to determining disputes in the Tribunal must be avoided.
5. Accordingly, these submissions on the appeal are rejected.

Fourth decision (8165) - overriding public interest against disclosure

1. The information sought in the fourth decision in matter number 2016/00378165 was: Complete and unedited copies of all letters and/or documents, telephone transcripts and/or Council's notes on telephone conversations, Council's notes on personal conversations, all of which relate to third party consultations - DA No: 483/2011 as outlined within Council's letter of 15 February 2016 Ref No: PSC2016-00217. A full and unedited copy of the records of letters, notes, transcripts and dialogues between Council and all third parties concerning consultations undertaken by Council with objectors to the DA No : 483/2011, as per the document list by Council under cover of its letter dated 15 February 2016 (copy attached).
2. Included in the Council's decision was a decision to withhold access to a considerable quantity of information, either as part of a document that was released, or as contained in a document no part of which document was released.
3. In doing so, the Council decided that there was an overriding public interest against disclosure founded upon the existence of the factors in cll 3(a), (b) and (f) of Table 14 in s 12 of the GIPA Act. It was the withholding of information aspect of the decision that was pursued on appeal.
4. In affirming that decision, the Tribunal said that for the same reasons as in the McEwan decision it was satisfied that release of the withheld information could reasonably expose a person to intimidation or harassment: at [31]. This is the factor against disclosure in cl 3(f) of Table 14.
5. In our decision on the McEwan appeal we upheld the challenge to the Tribunal's conclusion that the factor in cl 3(f) existed. Our reasons for that conclusion were set out in paragraphs 46 to 54 of our reasons. We repeat those reasons and find that, accordingly, Ms Webb's appeal against the Tribunal's decision in 8165 should be allowed.

Orders on appeal

1. For the above reasons, we make the following orders: 1. The appeal against the Tribunal's decision made on 8 September 2018 in matter number 2016/00378165 to affirm the decision under review is allowed. 2. The Tribunal's decision made on 8 September 2017 in matter number 2016/00378165 to affirm the decision under review be set aside. 3. The review matter number 2016/00378165 is remitted to a differently constituted Tribunal for re-determination. 4. Otherwise, leave to appeal is refused and the appeal is dismissed.

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 20 September 2018 - Paragraph 2 first sentence date added. 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: 20 September 2018