As previously indicated, the applicant did not file any submissions.
[2]
Consideration
Section 60(1) confers discretion on an agency to refuse to deal with an access application on one of the grounds set out in that section ("[a]n agency may refuse").
That discretion must be exercised, generally, by having regard to s 3(1) of the GIPA Act, namely the presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure contained in s 14 of the GIPA Act, and the public interest in favour of the disclosure of government information prescribed by s 12 of the GIPA Act.
Additionally, and specifically, that discretion must be exercised having regard to the statutory command contained in s 3(2)(b) of the GIPA Act. The discretion is to be exercised as far as possible so as to facilitate access to government information.
Having regard to the legislative scheme as a whole, which does include exceptions and limitations on access to government information, the words as far as possible should be given a purposive rather than literal meaning. Nevertheless, on a purposive construction, in the context of the discretion conferred by s 60(1), they set a high threshold that must be surpassed before an agency may correctly exercise that discretion to refuse to deal with an application on the ground specified in s 60(1)(a): Colefax at [21].
Before that discretion is enlivened the agency must satisfy the pre-condition contained in s 60(4) of the GIPA Act: that is, the agency must give the applicant a reasonable opportunity to amend the application.
A decision pursuant to s 60(1)(a) to refuse to deal with an access application requires an administrator to be satisfied that dealing with the application would require an unreasonable and substantial diversion of the agency's resources (emphasis added). A decision based on only one of those criteria would not be correct. That is, it is not enough for the agency to establish that the applicant's access request would involve a substantial diversion of the agency's resources, it must also establish that this substantial diversion is an unreasonable one.
The words substantial and unreasonable are non-technical English words that ought to be given their ordinary meaning in this context. The Oxford English Dictionary defines 'substantial' to mean 'of considerable importance, size, or worth'. It defines 'unreasonable' to mean 'beyond the limits of acceptability or fairness'.
The agency must also be satisfied that dealing with the access request would constitute a diversion of its resources. 'Diversion' is a non-technical English word and should be given its ordinary meaning. The Oxford English Dictionary defines it to mean "the act of changing the direction that somebody/something is following, or what something is used for". It is thus also necessary for the agency to establish that an access request if both unreasonable and substantial would also result in some form of significant change in the typical deployment of agency resources.
Sections 60(3A) and (3B) were inserted in the GIPA Act and commenced from 28 November 2018. They constitute a test to be applied in determining if the discretion conferred by s 60(1) ought to be exercised so as to refuse to deal with an access application. The s 60(3A) considerations must, on balance, outweigh the s 60(3B) considerations. It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources: Else at [54].
Section 60(3A) specifies three considerations, but does not limit the matters that may be considered. Prior to its commencement, the application of s 60(1) was guided by the decision of O'Connor DCJ in Cianfrano (supra). Some of the Cianfrano considerations are now codified in ss 60(3A) and (3B), but these must be understood as relating to a statute that is in some respects materially different to the GIPA Act. Nevertheless, those factors are potentially relevant considerations in the analysis required by ss 60(3A) and (3B): Colefax at [26], followed in Ruyters at [17].
The respondent argues that GIPA requests that involve more than 40 hours processing time are 'at the upper end of the range' and properly raise concerns. I note that the '40 hour threshold' has been applied as a primary consideration in determining that a GIPA request would constitute an unreasonable and substantial diversion of agency resources in a number of cases, including: Morgan at [35] and Loussikian at [52].
However, in Colefax the Tribunal cautioned against any automatic application of that threshold.
The s 60(3B)(a) consideration is a reference to the general public interest in favour of the disclosure of government information contained in s 12 of the GIPA Act. Therefore, it should be considered in a systemic sense that is consistent with the object of the GIPA Act and it does not involve any assessment of the public interest in the disclosure of the particular government information that falls within the scope of the access request: Ruyters at [47].
Section 60(3B)(b) is limited to considerations that concern the demonstrable importance of the information sought under the GIPA request to the applicant, including those specified in ss 60(3B)(b)(i) and (ii), but is not limited to those considerations.
The words 'demonstratable' and 'importance' are non-technical English words which are defined by The Oxford English Dictionary to mean, respectively, 'clearly apparent or capable of being logically proved' and 'of considerable importance, size or worth'. These words put a practical onus on GIPA applicant to draw attention to material before the agency that demonstrates the importance to them of the information sought.
However, with respect to s 60(3B)(b)(i) of the GIPA Act, a proper construction of the clause "personal information that relates to the applicant" means "of demonstrable importance to the applicant".
With respect to s 60(3B)(b)(ii), the appearance of "could" at the beginning of the phrase, which The Oxford English Dictionary defines, relevantly, to mean: 'to indicate a possibility", indicates that this is 'something that may happen or be the case".
A GIPA applicant will usually be seeking access to information they do not have in order to establish its existence and contents. I consider that it would be a misapplication of s 60(3B)(b)(ii) to require an applicant to show that information that they do not yet have or know of is of demonstrable importance to them in any positive or specific sense. Rather, the section requires an applicant to establish a plausible basis upon which it may be the case that the information sought would assist them to exercise a legal right: Ruyters at [54].
In Danis, the Appeal Panel observed at [43]:
Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)).
Having regard to these matters, the Tribunal's task is to determine:
1. Has the agency satisfied the pre-condition to the exercise of the discretion contained in s 60(4) of the GIPA Act?
2. if the answer to (1) is "yes", how should that discretion be exercised in the circumstances of this case? This requires:
(i) consideration of the matters specified in s 60(3A) and any other matter that may or may not lead to the conclusion that dealing with the access application would result in an unreasonable and substantial diversion of the agency's resources,
(ii) consideration of the matters specified in s 60(3B) and any other matters that may reveal that the information sought is of demonstrable importance to the applicant,
(iii) attaching weight to each matter, being an assessment of the degree of persuasiveness of each matter in the exercise of discretion,
(iv) determining where the balance between the competing considerations lies.
I am satisfied that the pre-condition to the exercise of discretion contained in s 60(4) of the GIPA Act has been satisfied in this case. The agency's emails to the applicant on 8 March 2023 and the letter from its solicitor to the applicant dated 20 November 2023, requested her to narrow the scope of the request, advised her of the reasons why the agency considered that necessary, explained some ways in which the application could be narrowed, and offered further assistance in narrowing the scope of the application. It also warned the applicant that a failure to narrow the scope of the application may result in the agency refusing to deal with it.
I note that neither the agency's email dated 8 March 2023 nor the letter from the respondent's solicitor dated 20 November 2023, invited the applicant to indicate what importance, if any, the information sought by the GIPA request had to her. Section 60(4) did not expressly require them to do so.
I am satisfied that the respondent complied with s 60(4) of the GIPA Act and that the discretion to refuse to deal with the access request under s 60(1) was enlivened.
[3]
The estimated volume of information involved in the request
I accept Mr Steptoe's evidence to the effect that Infolink's preliminary estimate is that 890 pages of information held by the agency potentially falls within the scope of the GIPA request. I accept his evidence that it would take approximately 70 hours for an Infolink review officer to review that material (excluding processing information responsive to item 3). I accept his evidence that the scope of the access request would require Infolink to conduct additional searches and review of documents and that there is potential for some of the information that falls within the scope of the GIPA request will require consultation with other persons and agencies pursuant to ss 54 and 54A of the GIPA Act. I accept his evidence that some of the information sought by the applicant is likely to be information that may engage public interest consideration against disclosure under the table to s 14(2), and that this would require careful and time intensive consideration. I also accept that it would take additional time to draft a Schedule of Documents and a Notice of Decision etc.
In these respects, I am satisfied that Mr Steptoe's estimates are based on transparent and reasonable assumptions. I note that the applicant did not seek to challenge Mr Steptoe's estimates of the volume of documents potentially within the scope of is access application, or the time it may take to process his application.
Doing the best that I can based on Mr Steptoe's evidence, I am satisfied that dealing with the current GIPA request would require a significant utilisation of Infolink's available resources.
[4]
The agency's size and resources
Mr Steptoe gives evidence that Infolink is the unit of the agency that is responsible for processing GIPA requests and for related functions. He has provided evidence regarding the number of review officers employed within the Unit (17), the number of processing hours available assuming full-time attendance (35 hours per week, for 48 weeks per year) and of the number of GIPA requests that the respondent received in the period of 12 months prior to 1 December 2023.
Doing the best that I can on the evidence before me I conclude that the agency is a very large agency with substantial resources available to it for the specific purpose of dealing with GIPA requests. In this respect, assuming a 35 hour working week, and that each Infolink review officer works 48 weeks year specifically deployed to GIPA Act and related work (allowing for annual leave, public holidays, and other leave) the agency has approximately 28,560 hours available to it.
Doing the best that I can on Mr Steptoe's evidence, I am satisfied I should allow that it is likely that up to 890 pages of documents fall within the scope of the request and that it is likely to take up to 70 hours to deal to finality with the request. That would absorb approximately .245% of the agency's capacity.
On that basis, I consider that the factors under ss 60(3A)(a) and (b) should be given moderate weight.
[5]
The timelines binding on the agency
Section 57(1) of the GIPA Act provides that an agency must generally decide an access application within 20 working days. It may be accepted that this is a relatively short timeframe. However, that timeframe is subject to the exceptions contained in s 57(2), both of which are potentially relevant in this case. In either circumstance the decision period can be extended by up to 10 working days, and if both circumstances pertain it can be extended by up to 15 days.
Section 57(4) of the GIPA Act also provides that the decision period can be extended and further extended by agreement with an access applicant. This section would clearly facilitate a longer decision period for the present access application if that was required, provided that the applicant was prepared to agree to it. In this respect I note that the agency has not requested the applicant to agree to extend the decision period, and there is no evidence before me as to whether she would agree to this or not.
For these reasons I give the general 20 day decision period some weight.
[6]
General public interest in disclosure of information
The general public interest in the disclosure of government information prescribed in s 12 of the Act is to be given very significant, or primary, weight in accordance with the object of the Act and the legislative scheme as a whole. However, moderate, or secondary weight must also be given to the fact that this general interest operates subject to specified exceptions and limitations, one of which is engaged in the circumstances of this case.
[7]
Demonstrable importance of the information to the applicant
There is no evidence before me that establishes that any of the requested information is personal information that relates to the applicant and the applicant has not provided any information to the respondent or to this Tribunal that he requires the information to exercise a legal right.
[8]
Where does the balance lie?
Based upon Mr Steptoe's evidence, I am satisfied that the GIPA request would involve a substantial utilisation of the resources that are available to the agency for dealing with GIPA requests. As there is no evidence regarding the demonstrable importance of the information to the applicant, I am satisfied that the degree of utilisation would be unreasonable.
I also note that items 1 and 2 of the GIPA request were the subject of prior administrative review by this Tribunal and that the applicant now seeks production of the documents that were lodged with the Tribunal in the previous proceedings on a confidential basis under s 107 of the GIPA Act.
I note that the Tribunal made an order under s 64(1) of the NCAT Act in the previous proceedings and there is no evidence before me that justifies a decision to revoke or otherwise amend that order.
[9]
Orders
For the reasons set out above, the decision under review is affirmed.
[10]
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: 26 February 2024
Parties
Applicant/Plaintiff:
Wojciechowska
Respondent/Defendant:
Commissioner of Police, NSW Police Force
Legislation Cited (5)
Freedom of Information Act 1989(NSW)
Government Information (Public Access) Amendment Act 2018(NSW)
On 7 December 2023, the respondent lodged a Statement of Ian Steptoe, Senior Advisory Officer, Advisory and Education for the Infolink Command, dated 6 December 2023, together with indexed attachments.
I note that the applicant did not respond to that evidence and that she did not notify the respondent that she required Mr Steptoe to appear for the purposes of cross-examination at a hearing.
Mr Steptoe stated that he has held his current position since July 2019 and that in that role, he makes decisions on access applications and internal review applications under the GIPA Act and he manages external review cases. He provides advice, guidance and training to review officers and other team members dealing with access applications and provides training to officers in other Commands about the requirements of the GIPA Act.
Mr Steptoe referred to the bundle of annexed documents and stated that the applicant sought a review of the respondent's decision by the Information Commissioner. On 31 August 2023, the Information Commissioner issued a report, which indicated that the respondent "appropriately identified and considered relevant factors under sections 60(3A) and 60(3B) before refusing to deal with the application because of an unreasonable and substantial diversion of resources." However, the Information Commissioner considered that the respondent had not provided the applicant to amend her application as no further attempts were made to engage with the applicant after 9 March 2023, to refine her request. She encouraged the respondent to contact the applicant again to discuss the refinement of the scope of her application. However, the respondent did not adopt that recommendation and informed the applicant of that position on 14 September 2022 (sic).
Mr Steptoe stated, relevantly:
16. I have been provided a letter sent from the Crown Solicitor's Office to the applicant dated 20 November 2023… That letter details a further invitation to the applicant to narrow the scope of her application, and further attempts to follow up with the applicant.
17. On 22 November 2023, the applicant sent an email to the Crown Solicitor's Office, responding to the refinement request (in the terms of the Officer's 8 March email) as follows…:
I respond to the email of [the Infolink Officer] with the following clarifications:
Re 3: There is nothing unclear in item 3 so it requires no further comment.
Re 9: Please provide the specifications of the three possible officers and I will tell you which one I am referring to. I am only aware of one by this name, and I described him as best as I was able to. Eg which PAC or units were they with at the times referred to at 9?
Re 11: There is nothing unclear in item 11 so it requires no further comment.
Re 12: There is nothing unclear in item 12 so it requires no further comment.
Re 13: Who these people are does not appear relevant to the issue of searches. However, by way of clarification by referring to Sigrid Higgins I mean Sigrid Higgins who works at NCAT. The same is true for Deborah Dinnen.
Re 14: I was not present when Mr Campbell did so. Accordingly, it is impossible for me to give you what you say you want.
Re 15: I was not present when Mr Campbell did so. Accordingly, it is impossible for me to give you what you say you want.
Re 16: There is nothing unclear in item 16 so it requires no further comment.
Please note that the above is not a refinement. It is merely a clarification. Please let me know if I can assist you in any other way. If you have identified some docs, I could take a look and tell you if I need all of them or only some (like the affidavit for discovery).
Mr Steptoe stated (at [21]) that in response to the GIPA request, Infolink conducted searches of the COPS database and RMS for items 3, 13 and 14-15. In particular:
a. Items 14 and 15 - I conducted an audit of the COPS database to identify any documents responsive to items 14 and 15. As the applicant declined to identify the spelling variations that may have been used, he limited his audit to searches for "Paulina Wocj*" and "Wojciechowsk*", which would identify any searches performed beginning with those letters.
b. Item 13 - I conducted a search of the COPS database to identify information relating to persons named, Sigrid Higgins and Deborah Dinnen.
c. Item 3 - I conducted a search of RMS for any records relating to the names of the named officers.
The Information Review Officer also conducted searches including to establish the Commands to which the police officers named in the location are or were attached, and whether any documents at items 1 and 2 were held on Infolink RMS records relating to the NCAT proceedings.
Mr Steptoe (at [22]) also identified the searches that were conducted by other Commands or Units following trace requests from Infolink, as follows:
a. the Office of General Counsel searched the RMS for information contained in items 1 - 2 of the request.
b. Protocol and Awards Unit searched the SAP database for information contained in item 3 of the request. the SAP database is a global tool used for managing NSWPF employees and contains information regarding NSWPF officers, including recruitment information, payroll, leave and awards.
c. The Blue Mountains Police Area Command searched the KRONOS system for information at items 4 - 9 and 17 - 18. KRONOS is a rostering system for sworn officers and the records are held by the Command at which the relevant officer is stationed. KRONOS records show when particular NSWPF officers were on duty.
d. The Blue Mountains Police Area Command searched the P files (personnel files) for items responsive to items 10 - 12 and 16. These files are now electronic, but are often comprised of older records which have been scanned onto the system, including handwritten notes.
e. the People and Capability Command, who hold recruitment documentation for the information contained in item 16.
Mr Steptoe also stated:
The Office of the General Counsel, who conducted searches for items 1 and 2 of the application, informed me that the information held by the NSWPF responsive to those items is the same information that has been the subject of previous applications made by the applicant, which were the subject of those decisions in the Tribunal in Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34 and Wojciechowska v Commissioner of Police [2021] NSWCATAD 210.
Mr Steptoe stated that item 3 of the GIPA request raises particular difficulties in determining the searches that are required to be undertaken and undertaking those searches. On 8 March 2023, the applicant was informed that this request was unclear but she refused the request to narrow that item. Infolink initially prepared a trace request to the Protocol and Awards Unit to identify any records of awards, cusps, medals or commendations to the persons named in the request, yielding 22 results, including the following types of awards: (1) National Emergency Medical; (2) COP Emergency Commendation; (3) Complimentary remarks; (4) Premier's Bushfire Citation; (5) 2nd Clasp to NSW Police Medal; (6) 1st clasp to NSW Police Medal; (7) National Medal; (8) National Police Service Medal; and (9) NSW Police Medal.
However, the GIPA request is not confined to the award or other commendation itself, but is also for documents that lead to the award or other commendation. That is a very broad request and raises difficulties of interpretation, which is why the applicant was asked to narrow it. For example, the COP Emergency Commendation was established by Ministerial approval following a recommendation by the Commissioner. Both the Ministerial approval and recommendation could be considered documents that lead to the commendation, as could any briefing notes or other documents concerning the process leading to those decisions. Each Command was asked to provide details of eligible NSWPF officers to be presented with an award. All of this information could be considered as documents that lead to an award. To fully consider and search for information potentially relevant for item 3 would require an assessment of the process leading to each type of award and determination of the necessary searches and trace requests required to be issued to locate those documents. This would be a time-consuming process that would have to be undertaken for each recorded award, cusp, medal or commendation of the persons named in item 3.
After the current proceedings commenced, Mr Steptoe stated that he made enquiries with the Protocol and Awards Unit to understand the process leading to an award. For most categories of awards, the process is managed via electronic "workflow" on SAP. By a workflow, an electronic notification is generated and sent to the relevant person for approval, and so on. The workflow only records the result of each person's relevant action and decision on approval and not necessarily the underlying documents that would have to be generated and reviewed to reach the result. For example, the workflow would include an indication that a nominated officer has not passed the initial probity check but will not store the results of the searches that led to the failure.
The Protocol and Awards Unit can extract the data relating to an individual workflow, but the raw data would require conversion so that it is in a readable format and competing this process for all 22 awards would be time consuming. He is not aware how that process is undertaken, but on inquiry with that Unit he was informed that it could take approximately 10 minutes per workflow.
Mr Steptoe stated:
30. Because of the breadth of this item and its uncertain scope, to fully compile the information potentially responsive to it, further searches would have to be made by the Protocol and Awards Unit and SAP reports generated for all 22 awards. For some awards, the relevant Command would have to search RMS for documents relating to the nominations and possibly also search local drives and email accounts as well as the personnel files for the officers concerned as there is no workflow recording who was involved in each state of the process that led to the award.
31. Based on the matters set out above at [27] - [30] and my experience in processing and supervising GIPA Act applications, I estimate that the additional searches for this item alone could easily take in excess of six hours, if 20 minutes were allowed per award. I consider that to be a modest estimate, because it includes the time in converting raw data as described above and any further additional searches that may be required given the breadth of the request to determine what information 'leads to' a particular award or commendation, having assessed how each award or commendation was established and then awarded to individuals. I am, however, unable to ascertain without further searches being undertaken which of the items would also require additional searches of emails and personnel files, which would increase the estimate.
Mr Steptoe set out in some detail the resources available to the respondent to manage GIPA requests He stated that NSWPF received 9700 valid GIPA requests in the period from 1 December 2022 to 30 November 2023, in addition to unprocessed formal applications that were received in 2022. Assuming full-time attendance and without unplanned absences or uncovered vacancies for 48 weeks and the only work the review officers in Infolink Command performs involves dealing with the formal applications (being those that are valid requests within the meaning of s 41 of the GIPA Act) the NSWPF receives, and only 9700 formal applications are to be processed for the year, a review officer on average would have 2.94 hours to deal with each application.
However, in addition the review team also receives invalid GIPA requests (406 in that period), as well as a number of consultation requests from other agencies (State and Commonwealth) dealing with GIPA requests or applications made under the equivalent regime under other State and Commonwealth laws that include NSWPF information. If a review officer is required to spend a disproportionate amount of time performing searches, initiating trace requests and analysing the information provided in responding to a single, large GIPA request, that necessarily diverts the review officer from processing other requests and delays the response to those requests. Additionally, the time spent by other Commands or Units in performing trace searches or engaging in consultation with Infolink in relation to an access application diverts those Commands or Units away from their core operational functions.
Mr Steptoe stated that the initial searches performed by Infolink and responses to trace requests identified 890 pages of documents that are potentially responsive to the GIPA request. He stated:
39. In the decision refusing to deal with the application, the decision-maker stated that more than 12 hours had already been spent by Infolink and the various other Commands and Units who had conducted searches as requested, in locating information potentially responsive to the application. That estimate was based on the cumulative totals of advice from the Commands or Units who had conducted the searches as to how long had been spent, as well as the time spent by Infolink. The other Commands and Units spent a combined total of 6 hours. The Information Review Officer has spent six hours dealing with the application including sending out search requests and reviewing and collating the responses. A further two hours have been sent by me performing additional searches for information since the application was filed. The Protocol and Awards Unit has also spent additional time in relation to item 3 of the request. I am not currently aware of how much additional time has been spent by the Protocol and Awards Unit since the application was filed. This means a total of at least 14 hours has been spent to date, dealing with the application and searching for the information potentially responsive to the request. (That total does not include any additional time spent by the Protocol and Awards Unit since the application was filed).
40. The applicant's clarification of her access application whereby she mainly asserts that there was nothing unclear in her access application and she is unable to provide further particulars of her request does not limit or reduce the scope of the information that is required to be located by the terms of her access application. Nor does the applicant's offer to review the initial documents that have been located to see whether further searches need to be performed by the NSWPF to response to her application assist because the NSWPF cannot release that information to the applicant without first determining that the information is not subject to an overriding public interest against disclosure. If NSWPF were required to deal with the applicant's application, this would involve:
a. Sending additional trace requests for additional searches to the Protocol and Awards Unit, and further consideration of the scope of any searches to be performed for item 3.
b. Additional searches to be undertaken by the Protocol and Awards Unit, in relation to item 3.
c. Internal consultation between Infolink and the relevant Commands or Units regarding any sensitivities or concerns regarding the release of information.
d. Review by Infolink of each document identified as potentially relevant to determine if it is in scope and whether there are any public interest considerations against disclosure that apply to the information and outweigh the applicable public interest considerations in favour of disclosure - the result of this review would need to be recorded on a Schedule with details of each document reviewed.
e. Potentially, Infolink might need to undertake consultation with third parties pursuant to s 54 of the GIPA Act.
f. Application of redactions, which would likely be extensive, to many categories of documents containing personal information (where the possible public interest in disclosure that could apply to the information would likely be outweighed).
g. Once a decision has been made with respect to each document, recording that decision on a schedule and compiling and paginating any documents to be released (which is from multiple sources), in addition to drafting a notice of determination.
41. In terms of reviewing the information located to date and any further information that may be revealed by additional searches, the decision maker estimated a review time of three minutes per page. Subject to [42] below, I think that is a reasonable and conservative estimate, based on my experience as a Senior Advisory Officer and my own processing or supervision of numerous GIPA Act applications. Three minutes per page is a conservative estimate; each page needs to be read closely with a view to applying the public interest test and weighing up the competing considerations to determine what information can be released.
42. However, additional time would also be required to consider and apply redactions. Where information contains personal information, particular care is required. Most of the items of information sought by the applicant concern the personal information of current or former NSWPF officers and sitting members of the Tribunal. Considering and applying redactions could easily add 2 minutes a page, perhaps more. This is because a review officer is not only required to redact the information but to also include a notation with each redaction as to the applicable public interest consideration against disclosure that outweighs the public interest consideration in favour of disclosure. These considerations will not apply uniformly to all of the information to be redacted. Therefore, I consider that even a conservative estimate of time to process the information potentially responsive to this application is on average 4 minutes per page.
43. Taking into account the additional searches performed since the application was filed, and the further additional searches that would need to be performed to respond to item 3, for the reasons explained above at [24] - [31], I estimate that a total of 20 hours would be required in searching for information responsive to the 18 items of this request.
44. Having regard to the matters set out above, I consider that processing the information (on the basis of the information currently identified and excluding additional information that might be obtained responsive to item 3) would take at least 50 hours. That estimate does not include allowance for any necessary consultations pursuant to s 54 of the GIPA Act, or the time taken to draft a notice of determination.
45. This means that I estimate the total time to deal with the application (excluding processing information responsive to item 3) as 70 hours. Based on my experience of dealing with applications under the GIPA Act, I consider that the time spent dealing with the applicant's application and any further dealing with the applicant's application would require an unreasonable and substantial diversion of the NSWPF's resources.
Mr Steptoe stated that Infolink's records indicate that the applicant had made six previous GIPA requests to the respondent between 1 February 2019 and 8 March 2023, and he listed the application number and relevant NCAT file numbers for each request. He concluded that there is some overlap in the information sought in application IASU2020-2810 (NCAT reference 2020/00333837) and the information sought in this GIPA request.
As previously stated, the applicant did not file any evidence.
Respondent's submissions
The respondent filed submissions on 7 December 2023, in which it argued that the correct and preferable decision for the Tribunal to make is a decision under s 63(3)(a) of the ADR Act, affirming its decision to refuse to deal with the GIPA request on the grounds that dealing with it would require an unreasonable and substantial diversion of the respondent's resources.
In the alternative, the respondent argued that if the Tribunal does not affirm this decision, the matter should be remitted to it for reconsideration under either s 63(3)(d) or s 65 of the ADR Act.
The respondent referred to Mr Steptoe's evidence and set out a background to the current matter, the previous GIPA requests and determinations and the previous NCAT proceedings relating to those GIPA requests.
The respondent noted that the genesis of the applicant's GIPA requests appeared to be a report that she made to NSWPF in September 2018, about trees on her property being removed without her permission. She was dissatisfied with the response and she made a complaint about the attending police officers to the respondent. Her complaint was dismissed and she subsequently made a GIPA request for the entries in the COPS database made by the NSWPF officers who responded to her report in 2018. She had since made other GIPA requests for information arising out of the NSWPF's attendance at her property in September 2018, and for policy documents of the NSWPF. The respondent considered that all of the applicant's GIPA requests to it derived from the September 2018 report and the applicant's allegations about how that report was handled.
The respondent stated that the applicant made a previous GIPA request for the information sought in item 2 of the current application. This included information for NSWPF officers who were assigned particular numbers as described in CAD (Computer Aided Dispatch) documents: N29941; N51598; N2002210; N2004623 and N9734530. The respondent provided her with access to the documents that responded to that part of her request, but redacted the information released on the basis that the redacted information was outside the scope of the GIPA request. the redacted information concerned the internal phone numbers, external phone numbers, mobile numbers and work addresses of the relevant officers.
The applicant sought external review of that decision and unredacted copies of those documents were provided to the Tribunal: Wojciechowska v Commissioner of Police [2021] NSWCATAD 210. The Tribunal affirmed the respondent's decision and the Tribunal made confidentiality orders over the unredacted materials under ss 64(1)(c) and (1)(d) of the NCAT Act.
In Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34, the appeal panel considered an appeal by the applicant against the Tribunal's decision. The Appeal Panel determined that no question of law arose in respect of the redacted material and leave to appeal was refused.
In this matter, item 1 of the GIPA request seeks access to unredacted copies of the materials that were before the Tribunal in the 2021 proceedings. However, she has not provided any indication of why she now seeks access to that information.
In relation to s 60(1)(a) of the GIPA Act and general principles, the respondent referred to the decision of the Appeal Panel in Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7 (Danis), which held that at its core, s 60 is aimed an ensuring the sensible and efficient deployment of an agency's resources (at [43]). Access applicants generally are assisted if agencies are not tied down by voluminous requests and when reviewing a decision by an agency to refuse to deal with a request under s 60(1), the Tribunal should have regard to the role that s 60 plays in promoting the efficient administration of the GIPA Act and the avoidance of the wasteful deployment of limited resources (at [49]).
Exercising the discretion under s 60 involves consideration of the resources that are available to the agency: Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [101]. The Tribunal has held that it is a matter for the agency to determine what resources it makes available to process an application under the GIPA Act: Loussikian v University of Sydney [2018] NSWCATAD 140 at [50] (Loussikian).
Section 60(1)(a) of the GIPA Act requires a decision maker to be satisfied that dealing with a GIPA request (or part thereof) would require by an "unreasonable" and "substantial" diversion of the agency's resources before refusing to deal with that request: Colefax v Department of Education and Communities (No 2) [2013] NSWADT 130 at [20] (Colefax).
The period of time that will amount to an unreasonable and substantial diversion of resources will depend on the facts and evidence of a given case: Colefax at [28]; Loussikian at [51]. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 (Cianfrano), O'Connor DCJ noted (at [62]) that a request received by the Premier's Department involving more than 40 hours' work would by "lying at the upper end of the range" for that agency, notwithstanding the size and role of that agency in the affairs of State. See also Morgan v Department of Family & Community Services [2016] NSWCATAD 125 at [35]; Loussikian at [52] where reference was made to estimates for processing applications exceeding 40 hours.
Sections 60(3A) and (3B) set out factors for consideration when assessing whether processing a GIPA request involves an unreasonable and substantial diversion of resources for the purposes of s 60(1)(a) of the GIPA Act. These provisions have been set out previously in this decision.
The respondent stated that ss 60(3A) and (3B) were inserted into the GIPA Act by the Government Information (Public Access) Amendment Act 2018, which commenced on 28 November 2018. They provide a structured framework for the exercise of an agency's discretion to refuse to deal with a GIPA request under s 60(1)(a).
Prior to the amendment of s 60, the Tribunal was guided by the factors identified by O'Connor DCJ in Cianfrano at [62]. (a case concerning the former Freedom of Information Act 1989) when assessing whether dealing with a GIPA request would require an unreasonable and substantial diversion of the agency's resources. These factors were:
(a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in Re Borthwick at 35)
(b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick)
(c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications
(d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost
(e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application
(f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria)
(g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns
(h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made
(i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
In Ruyters v Commissioner of Police [2020] NSWCATAD 223 (Ruyters), the Tribunal confirmed that ss 60(3A) and (3B) have the effect of codifying some of the factors outlined in Cianfrano and applied in Colefax, and that the caselaw considering those factors remained a relevant and useful source of guidance when considering the application of s 60. In this regard, it is notable that the terms of s 60(3A) make clear that the list of factors appearing in that provision is non-exhaustive.
In applying s 60(3A) to the current GIPA request, the respondent noted Mr Steptoe's evidence that to date 890 pages of documents had been identified as being potentially responsive. And this does not include any allowance for additional material that could possibly be located with respect to item 3. He also provided extensive evidence about the further steps that will be required to process that information and the estimated time involved in redacting information that may be subject to an overriding public interest against disclosure. He estimated that the time to process the GIPA request would be 50 hours.
The respondent also argued that the Tribunal should be satisfied that the volume of information held by the respondent with respect to item 2 "is unlikely to be insubstantial" when regard is had to the following:
1. There are 22 relevant awards for which the respondent will have to locate documents that "lead to" the awards being conferred; and
2. The breadth of the information sought and the scope of the information that could be caught by item 3 include:
1. Electronic workflows in NSWPF information systems;
2. Ministerial approvals;
3. Briefing notes; and
4. Invitations to award ceremonies.
Therefore, the Tribunal should attribute significant weight to the volume of material in the weighing exercise.
The respondent relied upon Mr Steptoe's evidence in relation to the agency's size and resources and his estimated time for determining the GIPA request. It argued that his time estimate "exceeds the upper end of the range" that O'Connor DCJ determined in Cianfrano and it would be appropriate for the Tribunal to apply this to the current matter, given the number of formal GIPA applications that the respondent receives and the number of review officers who are available to process them.
Item 3 of the GIPA request gives rise to particular difficulties, given its breadth, yet the applicant has refused to clarify or narrow the scope of her request. As stated by O'Connor DCJ in Cianfrano, this is a relevant factor in the assessment.
In relation to s 60(3B) of the GIPA Act, the respondent made the following submissions.
The general public interest in favour of disclosing government information - s 60(3B)(a)
54. Section 60(3B)(a) requires that regard is had to the general public interest favouring disclosure of government information. As the Tribunal confirmed in Ruyters, this is to be equated to the general public interest which is reflected in s 12(1) of the GIPA Act and does not require consideration or assessment of the public interest associated with disclosure of particular information which has not been requested (at [47]). As such, the respondent submits that s. 60(3B)(a) requires no more than consideration of the fact that there is inherent public interest in the disclosure of government information.
The demonstrable importance of the information to the applicant - s 60(3B)(b)
55. Section 60(3B)(b) requires consideration of the "demonstrable importance" of the information sought to the applicant, including whether the information:
a. is personal information that relates to the applicant; or
b. could assist the applicant in exercising any rights under any Act or law.
56. In Colefax, the Tribunal also commented that the fact that an access applicant is seeking his or her own personal information is a factor relevant to the determination (at [27]); see also Loussikian at [35].
57. The information sought in the application is not personal information that relates to the applicant. Rather, it concerns information regarding current or former NSWPF officers and sitting members of the Tribunal. The respondent is not aware of the applicant's motivation for seeking access to the information and it is not apparent that the applicant seeks the information for the purpose of exercising any rights under any Act or law.58. Nor has the applicant otherwise identified the "demonstrable importance" of her of the information sought. The tribunal in Ruyters considered that it is necessary for an applicant to put forward some material to indicate the importance of the information sought "rather than engaging in mere speculation or conjecture" (at [47]). If anything, the volume of previous applications lodged by the applicant relating to a singular incident to which this application appears to also relate would militate against a conclusion that the information sought in this application is of any demonstrable importance or could shed any additional light on the incident than the information that has previously been provided in response to the application.
In relation to balancing the public interest, the respondent stated that only where the matters identified and considered under s 60(3A) outweigh those under s 60(3B) can an agency refuse to deal with a GIPA request on the basis that it would require an unreasonable and substantial diversion of resources: Else v Ministry of Health [2021] NSWCATAD 381 at [54].
In Ruyters, the Tribunal likened the balancing process required under ss 60(3A) and (3B) to the public interest test under s 13 of the GIPA Act. On that basis, the respondent argued that the factors under s 60(3A) outweigh those under s 60(3B) and that the s 60(3B) factors should be given little weight. Further, it would be unreasonable to expect the respondent to deal with the GIPA request in circumstances where:
1. Substantial portions of the information may be subject to an overriding public interest against disclosure;
2. The applicant has not taken up an opportunity to refine the scope of the application despite being invited to do so; and
3. Items 1 and 2 of the request concern information that has been the subject of prior GIPA requests and applications for review by the Tribunal and the applicant has not explained why she now seeks copies of unredacted copies of that information.
The respondent also argued that it is significant that the Information Commissioner determined that the consideration of factors in ss 60(3A) and (3B) was appropriate.
In the event that the Tribunal does not affirm the reviewable decision, the respondent argued that the tribunal should remit the matter for reconsideration, on the basis that the GIPA requests largely relates to personal information of current or former NSWPF officers or other persons including sitting Tribunal members. This may include sensitive information and be subject to an overriding public interest against disclosure under cl 3 of the Table to s 14(2) of the GIPA Act.