Wojciechowska v Blue Mountains City Council - [2020] NSWCATAD 264 - NSWCATAD 2020 case summary — Zoe

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Wojciechowska v Blue Mountains City Council

[2020] NSWCATAD 264

NCAT Administrative and Equal Opportunity|2020-05-01

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-05-01

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

REASONS FOR DECISION

Ms Wojciechowska owns a vacant block of land in Blackheath. In 2019 she sought access to information held by Blue Mountains City Council ("Council") primarily relating to a Development Consent granted by Council for the block adjoining her block. Ms Wojciechowska remains dissatisfied with the access to information provided by Council and presses for orders setting aside Council's decision that no further information exists.
These proceedings arise under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The provisions of the GIPA Act are engaged by the following circumstances: 1. In March 2019 Ms Wojciechowska made an access application (s 41) to Council; 2. Council was required to conduct such reasonable searches as may be necessary to find any of the information applied for (s 53); 3. Council did not provide the information within time and was deemed to have decided to refuse to deal with the application (s 63(1)); 4. Council's deemed refusal is a reviewable decision (s 80); 5. Ms Wojciechowska was aggrieved by this reviewable decision and applied to NCAT for administrative review of the decision on 29 July 2019 (s 100); 6. Council separately decided the original access application (s 58) and, without knowledge of the application to NCAT, gave notice of its late decision (s 63(2)) on 1 August 2019; 7. Council's late decision is a reviewable decision (s 80); 8. Ms Wojciechowska continued her application, and seeks administrative review of the late decision (s 108(3)) and subsequent decisions; 9. Council has provided access to additional information through various interlocutory steps in these proceedings. The most recent access was granted on 22 January 2020; and 10. Council's decision on 22 January 2020 to provide access to only a limited number of further documents was, in the circumstances, a decision that the Council does not hold any further information (s 58 (1)(b)) and is reviewable (s 80(e)).
The following principles apply to a review of an agency's decision that it does not hold any further information: 1. the task of the tribunal in reviewing the agency's decision is to identify the correct and preferable decision (s 63 of the ADR Act); 2. the agency bears the onus of establishing that its decision is justified (s 105); 3. the starting point for the Tribunal's inquiry is the agency's evidence in support of each decision (Webb v Port Stephens Council [2018] NSWCATAP 224 at [35]) ("Webb"); 4. what constitutes a sufficient search will vary with the circumstances of the case (Stanley v Roads and Maritime Service (NSW) [2014] NSWCATAD 123 at [70]) ("Stanley"); 5. key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is the subject of the request (Chetcuti v The University of Sydney [2020] NSWCATAD 164 at [54]); 6. the focus of the inquiry is the administrative steps taken by the agency's search officers. The focus is not on whether the agency 'tried hard' to find relevant information (Robinson v Commissioner of Police [2014] NSWCATAP 73 at [33]-[34]); 7. the Tribunal can take into account any relevant material before it at the time of the review (Stanley at [14]); 8. where the agency presents relevant and credible material to support each search, the burden will fall on the challenger to try and overcome or undermine the case from the agency (Webb at [20]); 9. the challenger bears a practical onus rather than a legal onus to establish the existence, or possible existence, of further information (Webb at [37]); 10. general distrust of an agency is not enough, an applicant must identify reasonable grounds for the tribunal to conclude that the requested information exists and is information of the agency (Stanley at [57] citing Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5); 11. this requires the applicant to put some credible material or submission before the Tribunal that information of the requested kind exist (Amos v Central Coast Council [2019] NSWCATAD 226 at [13]); 12. if a document does not exist at the time of the access application, the agency is under no obligation to create one (Stanley at [58]); 13. weaknesses in an agency's searches, or failures in its record-keeping processes, do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate (Stanley at [71]); and 14. even if a search does appear reasonable the correct and preferable decision might be to not affirm the agency's decision if the Tribunal is persuaded that an agency may hold more information (Bellamy v Transport for NSW [2019] NSWCATAD 54).

[3]

Council's decision not to call Mr Glen

Mr Glen finished employment with Council in December 2019 and he was not called to give evidence in these proceedings. Ms Wojciechowska submitted that inferences can be drawn from Council's decision to not call Mr Glen and submitted that her evidence of the existence of other documents should therefore be more readily accepted (per Jones v Dunkel (1959) 101 CLR 298). Whilst being a correct recitation of one of the principles from Jones v DunkeI, I don't think this submission is precisely correct for the present circumstances.
Council bears the onus of establishing that its decisions are justified. Council has sought to meet that onus by providing evidence from only Ms Hinder. The decision to not call Mr Glen might result in Council not meeting its onus if, for example, there are gaps in Ms Hinder's evidence that Mr Glen could have filled. But such a circumstance requires no Jones v Dunkel inference - Council's case simply falls short of its mark.
If any inference can be drawn in Ms Wojciechowska's favour by Council's decision to not call Mr Glen, that inference could not properly be treated as filling any gap in her case - per Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J) and at 312 (Menzies J). Such an inference can only make Ms Wojciechowska's evidence more readily acceptable.
The key evidence relied upon by Ms Wojciechowska, being documents produced by Council that she said support the existence of other documents, do not raise inferences that I could reasonably expect Mr Glen to contradict. The documents relate to the Development Consent ("DC") itself, and the issues raised by Ms Wojciechowska about each document relate to Council's processes in dealing with the DC rather than Council's processes in dealing with her access application. Ms Wojciechowska has not established that Mr Glen's evidence might be expected to have contradicted the evidence Ms Wojciechowska relies upon.
Importantly, I do not understand Ms Wojciechowska to have challenged the truthfulness of anything Mr Glen has stated in his emails to others - though by implication she did challenge the accuracy and/or truthfulness of responses received by Mr Glen. Ms Wojciechowska submitted that from the material in Ms Hinder's evidence "Mr Glen did not try to find certain items at all, but limited himself to asking questions to which he was clearly content not to receive answers." I accept that this proposition is one that Ms Wojciechowska could and would have put to Mr Glen in cross-examination, however it is not particularly relevant whether Mr Glen was "content not to receive answers" or not. The evidence is that he asked certain questions of others, and that other people conducted searches and provided answers. The task of the Tribunal is to assess whether or not this was satisfactory for the purposes of the GIPA Act.
Ms Wojciechowska is entitled to submit that Mr Glen's searches or his methodology were inadequate, or that the answers he received were inadequate, but Council's case stands or falls on the evidence it chose to provide.

[4]

Council's Evidence

In Webb at [35] the Appeal Panel found that the correct application of the burden in s 105 of the GIPA Act was to begin by examining the Council's evidence in support of each decision and then address the counter material and arguments from the challenger. I will firstly consider Council's evidence in relation to its searches generally and then, to the degree necessary, consider evidence of specific searches in the context of the challenges made by Ms Wojciechowska. It is important to note that in taking this approach that the onus on Council to prove that its decision is justified still applies to each specific aspect of Council's decision on 22 January 2020.
Ms Hinder's evidence indicates that upon the receipt of the access application Council officers searched files relating to the relevant DC. Mr Glen identified information held within the TRIM file "X/198/2017" and in April 2019 also asked council officers who had involvement with the development application "Could relevant documents be saved elsewhere?"
In April 2019 Mr Glen received specific advice from other officers about the specific categories of information sought. Council consulted with third parties about access to the information and received objections to the disclosure of information from some parties, most notably the builder about whom Ms Wojciechowska had already lodged complaints with Council.
This objection process caused delay and a late decision was eventually made in August 2019, being a few days after Ms Wojciechowska lodged her application for administrative review.
By agreement, and in some cases by order of the Tribunal, further inquiries and searches ensued between September 2019 and January 2020. These processes were somewhat interactive insofar as Ms Wojciechowska helpfully and properly raised her specific concerns arising from the material she had already been provided, and Council responded to those concerns by conducting further, more targeted searches.
These processes in the Tribunal took longer than they should have because, it would seem, of objections made to Council by parties whose arguably personal information was being disclosed to Ms Wojciechowska. Council initially redacted certain information but ultimately Ms Wojciechowska was provided with unredacted copies of the materials.
During these preliminary processes it is clear from correspondence between the parties that Council was quite properly attempting to understand and address Ms Wojciechowska's concerns for the direct purpose of resolving these proceedings. Ms Wojciechowska is frustrated that this interactive process took some time and did not ultimately alleviate her concerns.
Having reviewed Council's evidence of its initial searches and Council's evidence of its active and at times proactive approach to conducting further searches to address Ms Wojciechowska's stated concerns, I am satisfied in general that by 22 January 2020 Council had undertaken such reasonable searches as may be necessary to find any of the information Ms Wojciechowska applied for in her access application. As will become apparent, in relation to some specific matters I am not satisfied that all reasonable searches have been undertaken.

[6]

Category A - Notice of Commencement

The first document Ms Wojciechowska said exists but has not been produced is a proper Notice of Commencement ("NOC") certificate. The NOC certificate supplied to Ms Wojciechowska is not, on Ms Wojciechowska's submissions, a proper NOC because it "lacks the most important element that makes a document a NOC, ie it does not state when the building work commenced; and it is not signed by the Principal Certifying Authority and hence is not a notification required by s. 81A of EPA Act."
The NOC provided to Ms Wojciechowska does not state the date of commencement. The NOC is a form designed, presumably, by Council. The form invites/requires the person completing the form to state "Date work is to commence" and contains a notation: "Note: Must not be less than 2 business days from the date of this notice".
Council submitted that s 6.6 of the Environmental Planning and Assessment Act 1979 ("EPA Act") does not require such a notice to state the commencement date. This submission is perhaps correct, insofar as s 6.6 requires that at least 2 days notice must be given of certain things but does not expressly require the notifier to state the date of commencement. But Council's submission does not quite answer Ms Wojciechowska's point. Council's own form requires the person completing the form to state the date the work is to commence, even if the EPA Act does not.
The difficulty for Ms Wojciechowska's case is that even if Council received and retained an incomplete form, it does not necessarily follow that Council also received and retained a second, properly completed, form.
Ms Wojciechowska's second argument in relation to the NOC is similar, being that the NOC produced is not signed by the Principal Certifying Authority. Council's response on this point is stronger, insofar as the space for the Principal Certifying Authority to sign is in a section marked "Office use only". Section 6.6(2)(e) of the EPA Act requires the following before commencement of building work: "the person having the benefit of the development consent has given at least 2 days notice to the council, and the principal certifier if not the council, of the person's intention to commence the erection of the building" (emphasis added). Council is the Principal Certifying Authority for the DC in question and so it is quite open for me to find that the form lodged with Council does not contain the signature of the Principal Certifying Authority. As above, even if the absence of a signature on behalf of the Principal Certifying Authority is a deficiency in the form, it does not necessarily follow that a second form exists.
Thirdly Ms Wojciechowska said that a reference to information being submitted "at inspection" in a later Inspection Report supported the proposition that a further satisfactory NOC was provided to Council. Council correctly submitted that the reference in question, made in an Inspection Report on 1 November 2018, is a reference to a "stormwater changes letter of certification".
Council has met its onus of establishing that its decision of 22 January 2020 in relation to a Notice of Commencement for the relevant DC (i.e. that it holds no further information) is justified. On review I affirm Council's decision in that regard.

[7]

Category B - Sydney Water Building Plan Approval

The NOC form also contains the following question: "Have you received the Sydney Water building plan approval receipt as per condition of consent?" Immediately following the question on the form is a notation as follows: "Conditions are usually identified in the consent as prior to works commencing on the site and may include payment of security s 94 contributions endorsement of building plans by water supply authority etc".
There are two response box options: "N/A" or "Yes (approval receipt to be submitted with this form)". Ms Wojciechowska submitted, quite understandably, that because the second box was ticked on the NOC provided to her, and because the form asks for the approval receipt to be attached, that there are reasonable grounds to believe that the receipt was included with the NOC form.
Council accepted that the NOC falls within the scope of the original access application, but submitted that the Sydney Water Building Plan Approval does not. I do not find this submission compelling, particularly in light of the presumption in favour of disclosure (per s 5 of the GIPA Act). Council presumably requires particular documents to be attached to the NOC because they are relevant to and inform the content of the NOC itself and because the attachments will be retained with the certificate as part of Council's own record keeping requirements.
Moreover, Condition 2 of the DC is that "a building plan approval must be obtained from Sydney Water Tap in to ensure that the approved development will not impact Sydney Water infrastructure. A copy of the building plan approval receipt from Sydney Water Tap in must be submitted to the Principal Certifying Authority prior to works commencing". As late as December 2019 Ms Wojciechowska wrote to Council pressing her argument that Council held "documents demonstrating compliance with condition 2 of the relevant Development Consent". Although Ms Wojciechowska's formulation in December is not strictly the same as the original access application, Council was on notice of this issue when it made its final reviewable decision in January 2020.
Over the course of these proceedings Council has made specific searches for further information based on Ms Wojciechowska's claims. I have not been able to identify any specific evidence that Council has searched for a Sydney Water building plan approval receipt since the original access application. I am not satisfied that a further search for a Sydney Water building plan approval receipt would be futile.
I am not satisfied that Council's decision of 22 January 2020 is justified in relation to a Sydney Water building plan approval receipt. I will set aside this aspect of Council's decision accordingly.

[8]

Category C - Other surveys / modifications to DC and CC held

Council provided one survey / survey report to Ms Wojciechowska in response to her access application for "surveys and survey certificates (with prefacing report/introduction) submitted in relation to all conducted inspections of the development …".
The parties did not agree on the meaning of some terms used in the access application, particularly in relation to the kind of survey Ms Wojciechowska said Condition 10 of the DC required, and she submitted that further surveys must have been submitted and must still exist.
I do not need to resolve these interpretation questions because I am satisfied that Council has conducted further satisfactory searches since the commencement of these proceedings such that it would be futile to make orders for any further searches for surveys. It is conceivable that a disagreement regarding the specific types of surveys captured by the access application could lead to Council's searches being too narrow. However Council has searched for and produced all of the surveys it received, of any kind, related to the DC.
On 22 October 2019 Mr Glen made further specific inquiries of council officers in response to matters raised by Ms Wojciechowska at a case conference, including asking "the applicant believes that Council is hiding other surveys that show a different placement of the development at 52 St Elmo. In you (sic) previous advice about this you said no peg out survey was received, and that an ID survey was received which is acceptable. Is the ID survey definitely the only survey received?"
In November 2019 Council's solicitors wrote to Ms Wojciechowska and in relation to surveys indicated "We are instructed that the Council does not hold any other survey, other than the surveys provided to you, with respect to the development the subject of DAX/198/2017 or with respect to the land at 52 St Elmo Avenue Blackheath…"
There were further interactions between the parties in relation to surveys between November and Council's final decision in January 2020. Overall I am satisfied that Council's decision in January 2020 was justified in relation to surveys and I affirm its decision in this regard.

[10]

Category E - Dates Received / Persons Receive

Council has a data management system, referred to in the proceedings as the "HPE MR System".
Ms Wojciechowska submitted that because some category descriptors in her initial access application refer to information "including dates received and person/s receiving" or a similar formulation, and because Council maintains a record management system, then records stored within Council's record management system may also contain information "including dates received and person/s receiving" and the like.
Council submitted that any such information is outside of the scope of Ms Wojciechowska's access request and Council is not obliged to provide access to it.
In the access application some words were in bold and some words were in brackets. Council argued that only the words in bold described the records sought and submitted therefore "when read logically and in context the request for information concerning dates received and persons creating or receiving the records can only be interpreted as being a request for Government information contained within the records specifically described in bold".
It is not necessary to undertake a detailed linguistic analysis of the access application to resolve this contest. If Council's construction is correct then none of the references to dates received and persons receiving have any work to do because none of those references were in bold. I do not accept this interpretation because the terms of the original access application are clear enough on their face.
Council argued that Ms Wojciechowska only agitated for access to information stored within the HPE MR system in her written submissions filed after the final decision in January 2020. This submission does not advance Council's case very far.
There was very limited evidence before the tribunal in relation to the HPE MR System. Ms Hinder's evidence was finalised after Ms Wojciechowska's first written submissions were filed. Ms Wojciechowska's first submissions squarely pressed her assertion in relation to the HPE MR system. The only direct reference to the HPE MR system in the body of Ms Hinder's affidavit is in single paragraph, and that paragraph is in truth no more than a submission about the interpretation of the original access application.
The interpretive provisions of the GIPA Act in Schedule 4 are expressed in generally broad terms. The meanings ascribed in Schedule 4 to the terms "records" and "government information held by an agency" include the following: 10 Meaning of "record" (1) In this Act: record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record … 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to: (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or …
It seems quite conceivable that within the HPE MR system there are "records" that have been "stored … by electronic process, or in any other manner or by any other means" that contain information about the dates received and persons receiving certain materials. Council has not led any evidence of whether or not such information is stored within the HPE MR system.
Having found that such information, if it exists, is caught by the terms of the access application, it is clear that Council has not met its onus under s 105 of the GIPA Act in relation to searches for that material. I will set aside this aspect of Council's January 2020 decision accordingly.

[16]

Referral under s 111 or s 112

Ms Wojciechowska asks that Council be referred to either the Information Commissioner under s 111 and/or to the Minister under s 112 of the GIPA Act.
I decline to make either of these referrals.
Section 111 of the GIPA Act permits, but does not require, the Tribunal to refer any matter to the Information Commissioner "that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally."
Similarly s 112 permits but does not require the Tribunal to bring a matter to the attention of the relevant Minister if "an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act."
Section 111 is directed to the conduct of "a particular agency or by agencies generally" and s 112 is directed to conduct of "an officer of an agency".
Neither provision is engaged in the present matter. Neither the Council nor any particular officer of the Council could be found to have engaged in conduct of a kind described in either s 111 or s 112.
To the contrary, individual officers of the Council, and the Council itself, have been co-operative, responsive and even proactive in addressing Ms Wojciechowska's concerns. I appreciate that Ms Wojciechowska is not satisfied with Council's responses and that she is frustrated with delays in her dealings with Council, but on the material before the Tribunal there is no basis under either s 111 or s 112 to refer any concerns on to the Information Commissioner or the relevant Minister.
Accordingly, I make the following orders: 1. The Respondent's decision of 22 January 2020 is set aside in relation to the following matters: 1. Whether Council holds any further information in relation to a Sydney Water building plan approval receipt; and 2. Whether Council holds any further information in relation to records within Council's HPE MR system that contain information about the dates received and person/s receiving information, or information of that kind, referred to in paragraphs (1), (3)-(7) of the access application. 1. The respondent is to conduct further searches under s 53 of the GIPA Act for information described in Order 1(a) and 1(b) and, subject to the provisions of Division 3 of Part 4 of the GIPA Act, provide the applicant with access to any responsive information. 2. The respondent's decision of 22 January 2020 is otherwise affirmed.

Wojciechowska v Blue Mountains City Council

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Judgment (17 paragraphs)

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