Wojciechowska v Blue Mountains City Council

Adequacy of searches

1. Council relied on an affidavit by Ms Rebecca Hinder. Ms Hinder only commenced employment with Council in August 2019. Ms Hinder is an Information Access Officer at Council and deposed to the searches and activities of others, predominantly by the former Privacy and Information Lead at Council Mr Adam Glen. Ms Hinder was not required for cross-examination.

Council's decision not to call Mr Glen

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Council's Evidence

1. 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.
2. 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?"
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

The possible existence of further information

1. Ms Wojciechowska submitted that several matters establish the existence, or possible existence, of further information that is information held by Council.
2. In her closing oral submissions Ms Wojciechowska referred to her suspicion that Council has identified and withheld certain documents, however she accepted that she has no evidence to support this belief and properly acknowledged that her application is not put on such a premise.
3. Ms Wojciechowska's central arguments were firstly that further information must exist in light of Council's obligation to receive and retain certain records, and secondly that some records produced suggest the existence of other documents that Council has not produced.
4. There is some force to Ms Wojciechowska's submission that if Council is required to make or keep certain records then there is a prima facie expectation that Council did in fact make and/or keep such records.
5. In general terms Council argued that Ms Wojciechowska is mistaken about Council's obligation to receive and retain certain records, but in any event Council has searched for additional specific documents and they have not been found.

Category A - Notice of Commencement

1. 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."
2. 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".
3. 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.
4. 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.
5. 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.
6. 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".
7. 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.

Category B - Sydney Water Building Plan Approval

1. 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".
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

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

1. 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 …".
2. 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.
3. 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.
4. 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?"
5. 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…"
6. 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.

Category D - Sydney Water s 73 Certificate

1. Condition 3 of the DC requires that a Compliance Certificate under s 73 of the Sydney Water Act 1994 be obtained and submitted to the Principal Certifying Authority prior to the issue of any occupying certificate.
2. Ms Wojciechowska submitted that because the DC requires that a s 73 certificate be obtained there is a reasonable basis to consider that either a certificate exists, or that a varied DC exists.
3. Council provided evidence of a contemporaneous email from a Senior Developer Consultant in the Developer and Infrastructure Portfolio Services division of Sydney Water, dated 12 October 2018 (being prior to the issue of any occupying certificate) indicating that Sydney Water did not require a s 73 compliance certificate for that particular development. Council submitted that no section 73 certificate was ever obtained.
4. Section 70 of the Sydney Water Act 1994 allows Sydney Water to issue a compliance certificate that certifies that no conditions are imposed upon a developer. Such a certificate seems to have the effect of certifying that a compliance certificate is not required. The email from Sydney Water referred to above concludes with the words "Please advise if refund or Certificate is required", which appears to be an offer from Sydney Water to certify that no certificate is required. It is reasonably open for me to find that no such certificate was obtained.
5. In the above circumstances I am satisfied that Council was justified in its decision that Council does not hold any further information in relation to a s 73 certificate and I affirm Council's decision in this regard.

Category E - Dates Received / Persons Receive

1. Council has a data management system, referred to in the proceedings as the "HPE MR System".
2. 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.
3. 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.
4. 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".
5. 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.
6. 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.
7. 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.
8. 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 …
9. 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.
10. 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.

Category F - Approved Stormwater plan

1. Ms Wojciechowska submitted that it was reasonable to expect that a further stormwater plan exists where "the satisfaction of [Council] is expressed by its stamp of approval on the plan". The copies of stormwater plans released to her are not stamped by Council.
2. Council submitted that it has searched for and released all stormwater plans in its possession and provided evidence of the same. In November 2019 Mr Glen made further, specific, queries of council officers in relation to stormwater plans.
3. Council further submitted that there is no requirement that Council must stamp as approved all plans received by it.
4. In the above circumstances I am satisfied that Council was justified in its decision that decision that Council does not hold any further information in relation to such further stormwater plans and I affirm Council's decision in this regard.

Category G - Another Version of Development Consent

1. Council's website contains information about the DC. The website lists a number of documents in relation to the DC and two of those documents refer to the DC as "X 198 2017(2)".
2. Ms Wojciechowska submitted, on the strength of these two file references, that there are reasonable grounds to believe that there is another version of the DC.
3. Council's submission and evidence is that there is no such second version and Mr Hinder suggest that "it seems that in filing the development consent and construction certificate on the Council's website the file was opened twice with the second copy saved". Ms Hinder nonetheless unambiguously stated "I have reviewed all of the documents held on the file for development consent X/198/2017 and I can confirm that there is only one (1) version of the development consent and construction certificate".
4. I am satisfied that Council was justified in its decision that I holds no other version of the development consent or construction certificate and I affirm Council's decision in this regard.

Category H - BASIX Compliance

1. Ms Wojciechowska claimed that Council released Building Sustainability Index (BASIX) documents for the main dwelling but not the secondary dwelling. Ms Wojciechowska submitted that it is reasonable to expect that Council required compliance with the BASIX standards also for the secondary dwelling and hence a suitable document is held.
2. Council said it has submitted BASIX certification for both the house and the studio in satisfaction of the access application and said further that, even if there was further separate documentation in relation to the studio, it has already undertaken full and proper search efforts to locate all documents within the scope of the access application and has released all such records to Ms Wojciechowska. I note in this regard that Mr Glen made further specific inquiries in relation to BASIX certificates in October 2019 and received a detailed explanation in response from Mr Radovic, who is employed by Council.
3. I am satisfied that Council was justified in its decision that decision that it does not hold any further information in relation to BASIX information and I affirm Council's decision in this regard.

Category I - Document 18/260544

1. At final hearing two further categories of information were pressed by Ms Wojciechowska. I allowed Ms Wojciechowska and Council the opportunity to file further brief written submissions in relation to the two additional categories.
2. The first additional category related to an entry in Council's search list. Council allocated reference numbers to each identified document in the access file it compiled when responding to the access application. The description for document "18/260544" included the words "DUPLICATE OF 18/280702". Ms Wojciechowska was given access to document 18/280702 but not the apparent duplicate document 18/260544.
3. In its submissions in reply after final hearing Council identified and produced document 18/260544 and acknowledged that it was an exact duplicate of document 18/208702 insofar as the second document contained some ticks on the page that the first document did not. The ticks were not said to be material and the document has been provided to Ms Wojciechowska.
4. In subsequent submissions Ms Wojciechowska objected to Council providing documents after the hearing closed. I don't propose to canvas Ms Wojciechowska's objections except to note firstly that I have not had regard to the additional documents when determining the rest of the matters in issue and Ms Wojciechowska has not suffered any prejudice in relation to any other aspect of her claim as a result of the late production. Secondly, in a case where Ms Wojciechowska is pressing for orders to require Council to search for and produce more documents, Council should not be discouraged from voluntarily producing further documents without the need for the Tribunal to make an order, even at later stages of the proceedings.
5. No further order or review by the Tribunal is required in relation to document 18/260544.

Category J - Final Inspection Report

1. The final document in contention is what Ms Wojciechowska described as the "final inspection report". Ms Wojciechowska argued that because clause 162B of the EPA Regulations requires Council to make and keep for 15 years a record of each critical stage inspection, and that the stage "after the building work has been completed and prior to any occupation certificate being issued in relation to the building" is a critical stage per clause 162A of the EPA Regulation, the inspection performed on 4 October 2018 "would result in a creation of a final inspection report .. which would have to be kept for 15 years".
2. Council said, amongst other things, that the Inspection Report dated 5 November 2018, reports on an inspection that took place on 4 October 2018 and that no other report was made of the kind described by Ms Wojciechowska about any inspection on 4 October 2018. This inspection report was provided to Ms Wojciechowska in the first tranche of information in August 2019.
3. I am satisfied that Council was justified in its decision in January 2020 that it does not hold any further information in relation to any other Final Inspection Report and I affirm Council's decision in this regard.

Referral under s 111 or s 112

1. 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.
2. I decline to make either of these referrals.
3. 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."
4. 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."
5. 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".
6. 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.
7. 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.
8. 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.

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 October 2020