These proceedings concern an application by Telina Webb (Ms Webb) to the Department of Communities and Justice (DCJ) for information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
For the reasons set out below, the correct and preferable decision is that the requested information was not held.
[2]
Background
Ms Webb's GIPA Application was dated 27 November 2023 (Request), and sought the following information:
This Formal Access Application refers specifically to the Sworn Affidavit of one renowned Ms Jodie Cobbin, Director Open Government Information & Privacy Unit, dated 13th June 2023.
In this regard this valid access application seeks:
A. A full and unredacted copy of any and all communications between Ms Cobbin and / or Justice NSW and iCARE, inclusive of emails, records of telephone conversations, etc, specifically in reference to her knowledge of the GIPA Application Ms Cobbin refers to at her Sworn Affidavit Paragraph 11:
11. I understand that the Applicant obtained a copy of the NIPPN Meeting Minutes for 27 March 2019 because of an access application lodged with iCare pursuant to section 41 of the [GIPA Act]. The Department nor I were consulted pursuant to section 54 of the GIPA Act in relation to the proposed release of the NIPPN Meeting Minutes. Had the Department or I been consulted in relation to the release of the NIPPN Meeting Minutes the Department would have raised objections in relation to section 14 clause 1(f) - prejudice the effective exercise by a agency's functions and clause 2(d) - endanger, or prejudice any system or procedure for protecting the life, health or safety of any person. This is because the information captured in the description of Item 3 of the NIPPN Meeting Minutes identifies the Discussion as the Department of Justice - dealing with difficult complainants.
In the alternative Justice NSW determines the above information is not held by it, this valid access application seeks the department's full disclosure of Ms Cobbin's and / or Justice NSW' knowledge of such given it is referenced in a Sworn Affidavit and is naturally expected to be (somewhat) truthful and intentionally designed to influence deciding NSW Civil & Administrative Tribunal Members.
(Note: Refences in my reasons below to the Sworn Affidavit are to the affidavit of Ms Jodie Cobbin (Ms Cobbin) which was referred to in the above Request. The Tribunal was informed at the hearing that "NIPPN" is a reference to the "NSW Right to Information & Privacy Practitioners' Network".)
DCJ made its decision on 22 December 2023 in respect of Ms Webb's access application (DCJ Decision), concluding that the requested information was not held. This was a decision under s 58(1)(b) of the GIPA Act.
Ms Webb then applied to the NSW Information and Privacy Commission (IPC) for external review under s 89 of the GIPA Act. The IPC, after seeking further clarification and information, issued a report dated 15 April 2024 (IPC Report); this report made no recommendations and concluded that the DCJ Decision was justified.
[3]
The Parties' submissions
Each party filed written submissions with the Tribunal. DCJ also filed an affidavit of Ms Cobbin dated 23 May 2024.
In summary, Ms Webb submitted that:
1. As there was no evidence of searches, it was difficult for her to accept that any reasonable searches were undertaken;
2. Ms Cobbin undertaking searches for information pertaining to her own Sworn Affidavit placed Ms Cobbin in a direct conflict of interest; and
3. DCJ had not duly disclosed "what documents Ms Cobbin gained and/or was provided access to" from the second government agency containing Ms Webb's personal information, which Ms Cobbin "extensively articulated" in her Sworn Affidavit. Accordingly, Ms Webb "reasonably expect…that there exists documentation supporting [Ms Cobbin's] evidence."
In summary, DCJ submitted that:
1. Reasonable searches were undertaken as set out in the affidavit of Ms Cobbin filed in these proceedings;
2. It was therefore correct to conclude that information responsive to the Request was "not held";
3. The alleged conflict of interest was a mere assertion unsupported by the relevant facts as sworn by Ms Cobbin in these proceedings, including the adoption of search functions in accordance with DCJ's usual practices in responding to GIPA applications; and
4. While Ms Webb wishes to know how Ms Cobbin knew of the relevant access application by Ms Webb to iCare, the GIPA Act is not a vehicle for seeking answers to questions: Davison v NSW Department of Education and Training [2013] NSWADT 24 (Davison), as cited in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 at [26].
[4]
Evidence before the Tribunal
Ms Cobbin is the Director of the Open Government, Information and Privacy Unit (OGIP Unit) in DCJ. She has held that position since September 2016. Her role includes managing the processing and determination of applications made under the GIPA Act.
Ms Cobbin's affidavit filed in these proceedings described the manner in which information is held in DCJ's systems, and the searches that were undertaken to locate information responsive to Ms Webb's request. Ms Cobbin attended the hearing, her affidavit was read, and she was cross-examined.
There are two relevant electronic systems used by DCJ that could have contained "communications" responsive to the Request. The first is OneTRIM. The second are emails of relevant personnel.
Regarding OneTRIM:
1. OneTRIM is DCJ's electronic documents and records management database. It is used by the OGIP unit. As with any such system, there are electronic folders created for a particular matter, or client. In OneTRIM, these are called "Containers". A Container is created by OGIP for a GIPA request, a subpoena, or something similar. For this reason, it would not be usual to have a "Container" allocated for general communications with another Department.
2. In circumstances where a communication is relevant to a specific matter, DCJ's policies required employees to load them into the relevant Container. This includes records of communications to or from other parties or agencies, or file notes of relevant telephone conversations.
3. The OneTRIM system search function does not automatically search through the full text content of every document. The title assigned to the document on the system is the only element that is searchable in OneTRIM. There are therefore prescribed "naming conventions" for the documents by date and title; although not a formal "policy", these conventions are adopted and followed by staff to ensure a degree of consistency when documents are uploaded to OneTRIM.
4. There was some discussion of the search terms applied. It was explained that there was a risk of just including "Webb" in a OneTRIM search, because every "Webb" in the system would produce far too many hits. Accordingly, the search terms "Affidavit", "Cobbin" and "iCare" were applied together.
5. The searches of OneTRIM were undertaken by Ms Doreen Lin (Ms Lin), an OGIP Advisor and clerical officer in the OGIP Unit. Ms Lin also demonstrated the functionality of OneTRIM to the Tribunal during the hearing, including how searches were conducted.
6. Nothing responsive was located in the initial search on OneTRIM. Further searches were undertaken as stated in Ms Cobbin's affidavit as suggested in the IPC Report. Again, nothing responsive to the Request was located.
7. Further Title and Notes searches were conducted by Ms Cobbin across OneTRIM on 23 May 2024 (set out at paras [22]-[23] of her affidavit).
8. It was previously confirmed (as noted in the IPC Report) that there were no relevant telephone recordings held by DCJ.
Regarding the emails:
1. Ms Cobbin's email account was clearly central to the terms of the specific Request.
2. DCJ uses Microsoft Outlook for the sending and receiving of emails. Microsoft Outlook allows both "simple" and "advanced" search functions to be performed.
3. A comprehensive search was undertaken using the search terms "Affidavit", "iCare" and "Webb" within Ms Cobbin's email account; relevantly including her outlook inbox, sent items archived items and deleted items.
4. The search terms were inputted and run across all content and text of the emails. No particular date range was applied to the searches. No documents were located which were responsive to the Request.
5. Ms Cobbin conducted all of these searches across her own emails. Further searches were also conducted as set out in paras [24]-[25] of her affidavit. Again, no documents were located which were responsive to the Request.
The final paragraph of Ms Cobbin's affidavit concluded:
In addition to my own personal recollection that no records were created within the search terms identified, I have considered the searches conducted by Ms Lin on 29 November 2023. I have also conducted my own searches on or around 29 November 2023 and 22 May 2024. I am satisfied that DCJ does not hold any information responsive to the Access Application. The records sought by the Applicant do not exist.
[5]
Cross-examination of Ms Cobbin
As noted above, Ms Cobbin stated in her affidavit that she did not expect to find anything responsive to the Request.
In cross-examination, she repeated this statement. In fact, she directly confirmed that she had received a call, that that call was the basis of the statement in her Sworn Affidavit noted in the Request, and she had not recorded the content of that call in any form contemporaneously, or indeed subsequently.
Nonetheless, searches had been undertaken in accordance with the procedures and processes as set out in her affidavit in these proceedings.
Ms Webb sought to question Ms Cobbin to obtain the identity of the caller. As that information was not relevant to the matter before me, I advised Ms Cobbin there was no need to answer that question.
[6]
Jurisdiction and task of the Tribunal
The Department is a "government agency" for the purpose of the GIPA Act.
The Tribunal has jurisdiction to review a decision made under the GIPA Act that government information is not held by the agency: s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 80(e) of the GIPA Act.
[7]
Was a reasonable search conducted?
DCJ must prove to the satisfaction of the Tribunal that the information is "not held". In this case, Ms Webb had raised the issue of the sufficiency of the search undertaken by DCJ. As s 53 prescribes what is a "reasonable search", the facts relating to that search are relevant to determining whether the correct and preferable decision is that the information is "not held": see Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41].
Section 53 of the GIPA Act provides as follows:
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.
Accordingly, DCJ must show what steps were taken to search for information falling within the scope of the Request and to satisfy the Tribunal that those steps were reasonable and sufficient in accordance with the above requirements in s 53. As stated in Wojciechowska (at [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.
What constitutes a reasonable search will vary with the circumstances of each matter. Having regard to matters (1) to (3) prescribed in Wojciechowska, and the facts set out above, I have concluded that reasonable searches were conducted by DCJ, as required by s 53 of the GIPA Act:
1. I found Ms Cobbin to be a truthful and credible witness and accept her evidence regarding DCJ's systems and the searches undertaken.
2. It has been held that an agency is generally best placed to assess the likelihood of the existence of the information and whether it is held: Wojciechowska at [37]-[38].
3. Ms Cobbin had years of experience in managing GIPA applications, and searches required in responding to those applications. She obtained appropriate assistance from her staff who, similarly, had previous experience dealing with GIPA applications and record searches. Both Ms Cobbin and her staff understood the systems. In those circumstances, there was no requirement that an IT person become involved.
4. Ms Cobbin adequately explained to the Tribunal the functionalities and limitations of two relevant DCJ systems. I am satisfied that the record keeping system of DCJ was such that the relevant "government information", if available, was located on either her emails, or on OneTRIM; and also that there were no relevant phone recordings.
5. Due to the system limitations, it was not possible (and thereby it is not "reasonable") for every single document loaded into a Container on OneTRIM to be fully text-searched. That is why keyword searches were appropriate, to check for any "hits" within a Container title or the title of a document. Due to the above protocols, the searches applied were also reasonable.
6. The evidence before the Tribunal afforded no basis for a finding that there were records in existence that should and have not been provided in response to the Request. This was expanded upon in the evidence that emerged since the DCJ Decision, by way of Ms Cobbin's oral evidence in cross-examination, provided under oath. In any event, the issue is not whether anyone believes the information exists, but whether DCJ has established that they undertook sufficient and reasonable searches. As noted by Senior Member Higgins in Davison at [31]:
[The applicant's complaint] is that information that she expected to be there, such as a record of decisions made and discussions had, were not located or identified. While I can understand the applicant's concerns, the only outstanding matter relevant to her GIPA request is whether the respondent has met its obligations under subsection 53(2) of the GIPA Act and undertaken 'reasonable searches' by 'using the most efficient means reasonably available' to it. On the basis of the submissions of the respondent, which outlines the searches it has made and the responses it has received, I am satisfied that it has met its obligations and undertaken reasonable searches.
In this case, the searches were indeed conducted. And I am satisfied that DCJ has met its obligations under s 53 and undertaken reasonable searches. Accordingly, the correct and preferable decision is that the information was "not held".
[8]
No conflict of interest
I find that Ms Cobbin had no relevant conflict of interest regarding her position; in fact, due to the nature of the enquiry (as is clear from the terms of the Request itself):
1. Ms Cobbin was the person in charge of the OGIP Unit, which was responsible for the review of, and preparation of responses to, GIPA applications;
2. she was also the person whose emails and records were central to the Request made by Ms Webb; and also the person who would know where to look if a responsive record existed;
3. in those circumstances, it was reasonable and appropriate for her to undertake searches of her own emails;
4. she provided the outcome of those searches by way of sworn evidence in these proceedings (and, in addition, voluntarily stated that no record responsive to the request had been created by her); and
5. she followed all usual and required processes, including obtaining the assistance of other staff of the OBIP Unit in relation to the Request.
[9]
Seeking answers to questions
Finally, I should address the following part of the Request which sought "in the alternative" (if the above information was not held) full disclosure of "knowledge" of Ms Cobbin and/or DCJ. It was expressed as follows:
…this valid access application seeks the department's full disclosure of Ms Cobbin's and / or Justice NSW' knowledge of such given it is referenced in a sworn affidavit.
However, Ms Webb's application to DCJ was made under the GIPA Act. That Act permits access (subject to stated exclusions) to "government information", which is defined in s 4 of the GIPA Act as "information contained in a record held by an agency". And it is only existing information in such a record, at the time the application is received, and not information that is capable of being produced: Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288.
Accordingly, the knowledge of a person, unless recorded in hard copy or electronic form, is not "government information" for the purposes of the GIPA Act; nor are proceedings under the GIPA Act a vehicle for seeking answers to questions a person might have in regard to administrative action taken by a government agency, or seeking an explanation by an agency as to why particular action was taken: see Davison (cited at para 8(4) above) at [3]. And in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95 at [62] the Tribunal said:
Proceedings under the GIPA Act are concerned with the provision of government records: not information held in peoples' heads and not information that is not found in a record. To attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v The University of Sydney [2009] NSWADT 230.
This part of the request by Ms Webb is therefore not a matter for consideration by the Tribunal in these proceedings.
[10]
Conclusion
The correct and preferable decision is that government information responsive to the Request by Ms Webb was not held by DCJ, for the reasons set out above.
[11]
Orders
I therefore make the following order:
1. The decision of the Respondent is affirmed.
[12]
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: 27 August 2024