Woodhouse v Commissioner for Police

The issue for determination.

1. The following issues arise for determination: 1. The scope of the access application; 2. Would dealing with the application require an unreasonable and substantial diversion of the Respondent's resources in accordance with section 60 of the GIPA Act? 3. Should the Tribunal affirm, vary or set aside the Respondent's decision?

The scope of the access application

1. As noted above, the Applicant sought to further reduce the scope of the access application several months after the hearing of the application. He submitted that the proposed further scope reduction would make a significant difference and dealing with the access application would not require an unreasonable and substantial diversion of the agency's resources. As such, section 60(1) of the GIPA Act would not be applicable.
2. The Applicant contends that if the narrowed scope request is refused he would be left with the previous scope which would be a request for access to material that he does not want or need and he will need to re-lodge his request.
3. The Respondent has opposed the request on two main grounds. Ms Windsor, the Respondent's solicitor, provided written submissions setting out the basis of the objection as: 1. The applicant now seeks to amend his application and contends that the Tribunal should determine that a revised scope is not an unreasonable diversion of resources. This is a new question. The question considered at the hearing was whether the existing scope of the application was an unreasonable diversion of resources. The submissions and the hearing proceeded on that basis. 2. To consider whether or not the narrowed scope is an "unreasonable diversion of resources" under section 60(3B)(a) would require the Tribunal to reopen the case and receive additional evidence.
4. The Respondent submits that as a matter of procedural fairness, the Tribunal could not find against the Respondent on the basis of assumptions, nor on the basis that it had received no specific evidence about the time taken to process the narrowed scope. Thus the Tribunal would require further evidence.
5. Ms Windsor referred to the principles as to when the Tribunal should exercise its power to reopen a case as discussed by Principal Member Titterton in Sheehy v Commissioner of Police, NSW Police Force; Rapisarda v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force [2017] NSWCATAD 349. At paragraphs [23] - [27] he stated: 23. The second observation is that the applications before me proceeded on the basis that the Tribunal has the power to allow a party to re-open its case. This issue was considered by the former Administrative Decisions Tribunal (the ADT), in [French -v- Sydney Turf Club Ltd [2002] NSWADT 24], exercising a similar jurisdiction to the present Tribunal (sitting in the Administrative and Equal Opportunity Division). The ADT conducted a review of the authorities and was satisfied that s 73 of the Administrative Decisions Tribunal Act 1997 (which is in similar, and in some parts, identical terms to s 38 of the NCAT Act), gave it a discretionary power to allow a party to re-open his or her case, even after the hearing had concluded and the Tribunal's decision was reserved: see par [33]; see too Blacktown Pistol Club Ltd v Commissioner of Police, NSW Police Force [2013] NSWADT 164 at [22]. 24. Of more direct relevance is the decision of the Appeal Panel of this Tribunal in Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221. The Appeal Panel appeared to have no doubt that the Tribunal has the power to allow a party to reopen their case, stating: 38 Relevant considerations obtaining on an application to re-open a party's case after a judgment stands reserved were considered by Brereton J in Chao v Chao (No 2) [2008] NSWSC 612 in which His Honour said at [2]: "For present purposes, the principles governing such an application are to be found in the judgment of Goldberg J in Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. They may be summarised as follows. The Court has a discretion to grant a party leave to re-open its case after final submissions have been concluded and the Court has reserved its decision. The ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier. If there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of proceedings, that will typically tell decisively against allowing a reopening, although there is no hard and fast rule requiring the Court to reject an application even where the decision not to call a witness or tender a document was a deliberate one." 39 The issue had previously been considered by Austin J in ASIC v Rich [2006] NSWSC 826 in which His Honour said at [18]: The defendants submitted a list of matters that they claimed to be relevant to the exercise of the court's discretion to permit the plaintiff in a civil penalty proceeding to adduce further evidence after it has closed its case. I accept their list as a useful statement of relevant discretionary factors, applicable in such a case as the one before me. The list is as follows: (a) the nature of the proceeding; (b) whether the occasion for calling the further evidence ought reasonably to have been foreseen; (c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; (d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief; (e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case; (f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time; (g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs; (h) the public interest in the timely conclusion of litigation; (i) what explanation is offered by the plaintiff for not having called the evidence in chief. 25. The Appeal Panel then noted that in The Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682 Stevenson J said at [43] that, although the factors provide a useful guidance, the relevant discretion must ultimately be exercised having regard to all the circumstances of the case: see too Taouk v Louis (No. 1) [2014] NSWSC 656 at [11]. 26. I conclude therefore that I have the power to allow a party to reopen its case. I further conclude that the principles I have set out above are those that should guide me in hearing such an application. A convenient summary of the principles also appears in Halburys Law of Australia Evidence, Witnesses Re-Opening A Case, [195-8150] and following. 27. However, in addition to the foregoing matters, I must also bear in mind the guiding principle set out in s 36 of the NCAT Act, namely that the guiding principle" for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
6. The Respondent submits that there are a number of issues that the Applicant ought to have reasonably foreseen: 1. the scope of the access application has been the central issue of this matter, and remained the central issue at the hearing; 2. any "tapes" that were located would require review to determine whether they are responsive to the application; 3. the Applicant could have cross-examined Mr Smith about the resources involved in producing particular categories of documents (such as tapes), and he had opportunity to do so at the hearing; 4. the Applicant was on notice that the processing his application may involve conversion of any audio or video footage. In his affidavit of 3 November 2020 Mr Smith stated at paragraph [35]: 35. This estimate does not consider the further time it would require to process the relevant information including to list and paginate records, consult with the relevant Command as to disclosure of any information, balance the public interests for and against disclosure, apply redactions, draft a notice of decision, and scan records including conversion of any audio or video footage. I conservatively estimate this would require a further 28 hours or 4 working days.
7. The Respondent submits that as a matter of fairness, it was entitled to know the evidence and case it had to meet at the hearing. The Respondent made forensic decisions as to the nature of the evidence it adduced based on the matters in question at the time.
8. Prior to the hearing, the scope of the application was the subject of correspondence with the Applicant. He has already amended the scope after mediation in September 2020 and, at very late notice, canvassed a further narrowing at the hearing. The Respondent made submissions and Mr Smith gave evidence that the amended scope did not materially narrow the access application, and would not shorten the estimate of that it would take approximately 56 days to deal with the access application.
9. In terms of fairness to the Applicant, the Respondent submits that he has been given ample opportunity to be heard, including by way of additional submissions after the hearing.
10. Ms Windsor submitted that to reopen this matter to allow consideration of the amended scope is prejudicial to the Respondent in terms of delay in the completion of the proceedings and the consequential costs. Moreover, it would be inconsistent with section 60(3) of the GIPA Act to require the Respondent to respond to repeated and belated requests to amend scope.
11. The Respondent has already expended significant time and resources in response to the original scope of the Applicant's access application and it submits that dealing with this request is a continuing diversion of its resources to this matter.
12. The Applicant disagrees with the Respondent. He does not accept that he should have foreseen the highlighted issues noting that he is not an experienced lawyer in GIPA matters. He contends that as he is an unrepresented party the Tribunal is to exercise a greater degree of flexibility than it would in the case of presented party.
13. He also disagrees with the Respondent's claim that the amended, narrowed scope constitutes a re-opening of the case which requires it to put on more evidence. He submits that the Respondent has had ample opportunity to submit evidence and submissions.
14. Further, the Applicant does not accept that Mr Smith's evidence is credible and he submits that it should not be accepted.

Discussion

1. In the circumstances I agree with the Respondent that the Applicant should not be permitted to reduce the scope of the access application as requested.
2. I accept that narrowing the scope of the access application in a way that limits the request to audio recording tapes and audio visual tape recordings is possibly a significant reduction in the scope. I also accept that it is possible that dealing with the application might no longer require the Respondent to allocate an unreasonable and substantial diversion of an agency's resources. However, I agree with the Respondent that it would be necessary to reopen the application to address these issues.
3. I agree that it would be unfair and prejudicial to the Respondent to decide the issue without receiving further evidence.
4. For the reasons argued by the Respondent, the Applicant is not permitted to further reduce the scope of the access application. The matter is to be determined on the scope of the access application existing at the time of the hearing.

Material before the Tribunal

1. The Respondent relies on the evidence of Mr Smith who provided affidavits dated 3 November 2020 and 16 December 2020. He also attended the hearing and was cross-examined. The Respondent filed written submissions in support of it case on 4 November 2020 and 17 December 2020. Following the hearing the Respondent filed further submissions in reply on 25 May 2021.
2. The Applicant has provided a significant amount of material. He filed written submissions in support of his case on 7 December 2020; 16 December 2020; and 17 December 2020. Following the hearing the Applicant filed further submissions on 14 April 2021 and 30 April 2021.
3. As noted, written submissions were provided on behalf of the Information Commissioner. Mr Wilkins appeared at the hearing on behalf of the Information Commissioner.

The legal principles

1. The objects of the GIPA Act as set out in section 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
2. Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
3. A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review of that decision under the ADR Act. A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act: section 80(c).
4. The Tribunal's function under section 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision. The Tribunal may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
5. The burden of establishing that a decision made under the GIPA Act is justified lies on the Commissioner: section 105 of the GIPA Act.
6. Pursuant to section 60 of the GIPA Act an agency can decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(a) is relevant to this application and provides that an agency may refuse to deal with an access application where dealing with the application would require an unreasonable and substantial diversion of the agency's resources.
7. Section 60 of the GIPA Act provides: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) - (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, ... (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. (3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. ...
8. Ordinarily, an agency must decide an access application within 20 working days after the agency receives the application: section 57(1). In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any agreement between an applicant and the agency for an extension of the period within which the application is required to be decided: section 60(2).
9. In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel said at paragraphs [43] - [45]: 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)). 44. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants. 45. For these reasons, it can be said that the objectives of the GIPA Act are advanced, in particular the object set out at s 3(2)(b): It is the intention of Parliament: (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
10. Further, the Appeal Panel said at paragraph [49]: 49. In our view, the Tribunal when reviewing decision to invoke a s 60(1) should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources. In the case of decisions founded on s 60(1)(d), the restrictions that apply to party use of subpoenaed material might be relevant, as well agency considerations in relation to respect for court orders. This is not intended to be an exhaustive statement of the matters to be taken into account in any particular case. We accept that there may be factors of a personal kind, related to the particular application and the access applicant's personal circumstances, that may also be relevant. 50. In our view, as submitted by the agency, the Tribunal needed at least to weigh the systemic considerations that might justify the agency in not continuing to process the application.

What constitutes an unreasonable and substantial diversion of resources?

1. The GIPA Act does not define what is meant by 'an unreasonable and substantial diversion of resources', however the Tribunal has considered these concepts in matters under the former Freedom of Information Act 1989 and in decisions under the GIPA Act.
2. In Cianfrano v Premier's Department [2006] NSWADT 137 ("Cianfrano") O'Connor DCJ discussed relevant considerations on any assessment of what constitutes an unreasonable and substantial diversion of resources at paragraphs [62] to [63]. He identified a non-exhaustive list of factors that he considered relevant to the assessment for the purposes of section 25(1)(a1) of the Freedom of Information Act 1989. He stated, references omitted: 62 As I see it, the factors that are relevant to an assessment of the kind required by this case, include: (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' … (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 … (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 … (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. 63 This is, of course, not intended, in any way, to be an exhaustive list of possible considerations.
3. The Tribunal has confirmed that the considerations identified in Cianfrano remained relevant to the assessment to be performed under section 60(1)(a) of the GIPA Act. See for example Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130; Taylor v Destination NSW [2017] NSWCATAD 272; Ruyters v Commissioner of Police [2020] NSWCATAD 223.
4. The section 60 discretion to refuse to deal with an application is based on an assessment of the resources that would be needed to deal with the application. It relates to the resources that are available to the Respondent. Senior Member Ransome discussed this issue in Ruyters at paragraphs [32] - [35]: The Tribunal has found in the past in cases such as Loussikian [v University of Sydney [2018] NSWCATAD 140] at [50] and Hanna v NSW Ministry of Health [2019] NSWCATAD 21 at [41] that it is a matter for an agency to determine what resources it makes available to process GIPA applications and whether or not the agency is large and well-endowed is not a relevant consideration in determining whether dealing with an application would unreasonably and substantially divert resources. The express reference to "the agency's size and resources" included in s 60(3A) now makes clear that whether the agency in question is large and well-resourced will generally be a relevant consideration which may be taken into account by the Tribunal in determining matters under s 60(1)(a). There can be no doubt that the NSW Police Force is a large agency. In her affidavit Ms Batur states that initial tasks associated with processing an access application are undertaken by officers in the Receipts Team within InfoLink. These tasks are predominantly administrative in nature. She states that there is also a Review Team comprised of Review Officers whose role is primarily to make decisions on access or disclosure of information in accordance with the provisions of the GIPA Act. Ms Batur states that there are currently 13 Review Officers, not all of whom are permanent employees and not all are experienced in the role. In 2018 the NSW Police Force received 5,799 applications for information under the GIPA Act and in 2017 there were 6,044 such applications. Ms Batur states that the Review Officers process, on average, 8.5 GIPA applications each per week. The Commissioner states that, in order to process Ms Ruyter's application, a Review Officer would be diverted away from 153 applications they would ordinarily be expected to process. I note that this figure relates only to the time taken to listen to the tapes and not any other work involved in deciding the application.
5. Further, as Senior Member Riordan noted in Hickey v Secretary, Department of Education [2021] NSWCATAD 306 at paragraphs [88]: The Tribunal's comments in cases such as Loussikian (at [50]) and Hanna (at [41]) must be interpreted in this statutory context and the Information Commissioner would caution against a broad application of the finding that it is a matter for the Respondent to determine what resources it makes available to process GIPA access applications.
6. The power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist an applicant in narrowing the request. Agencies should not rely on the power of refusal to process simply because their information management systems are poorly organised and documents take an unusually long time to identify and retrieve.

The Respondent's case

1. As noted, the Respondent refused to deal with the application in both the original form and the reduced scope. A preliminary search revealed that there is a large amount of documentation falling within the scope of the request. This material is held in archived boxes and on the Respondent's electronic investigation management system ("E@gle.i").

Matthew Smith

1. Mr Smith is a Senior Advisory Officer in the Respondent's InfoLink Unit. InfoLink is the team that processes and responds to applications to the Respondent for information, including access applications made under the GIPA Act. In his affidavit dated 3 November 2020 Mr Smith identified the following stages involved in dealing with an access application: a. reviewing the application and determining that it meets the formal requirements under the Act; b. conducting searches for records and making inquiries as to what part of the agency might hold responsive information; c. correspondence with the applicant to narrow or clarify the scope of the application; d. collating the results of searches; e. reviewing the responsive records to identify whether the information is within scope of the access application; f. consultation with parts of the agency and affected third parties in relation to disclosure of the information; g. consideration of the applicable public interest considerations for and against disclosure and making a determination in relation to disclosure; h. application of redactions; i. scheduling the records responsive to the access application; j. drafting and settling a notice of determination and correspondence to any affected third parties; k. preparation of the information in a form for disclosure.
2. He said that the time associated with these tasks can vary significantly depending on the clarity and scope of the access application.
3. In regard to the InfoLink Unit's resources he stated: NSWPF receives approximately 6,000 - 7,000 GIPA Act access applications per year. Since the introduction of the new online platform in July 2020, there has been an increase in applications which, if maintained, would see our annual total become approximately 7,600. Within InfoLink, there are 13 officers allocated to the determination of access applications at first instance and 2 officers allocated to internal reviews and remitted decisions. This means that each review officer has to decide around 400 applications per year, without accounting for leave entitlements. Broken down, this means that each officer has to decide approximately 10 applications each working week, or 2 per day. This means each officer has, on average, 3.5 hours to deal with each access application. That time does not include the time spent by other parts of the agency searching for records and responding to InfoLink queries. Dealing with an access application that takes a single review officer longer than 3.5 hours to determine accordingly diverts resources away from and/or delays other access applications.
4. Mr Smith noted that preliminary searches have been done to ascertain how many records may be responsive to the Applicant's access application and where those records might be located. The preliminary searches indicated that: 1. there is a large amount of documentation in archive, comprising approximately 56 boxes; and 2. more than 900 records on E@gle.i. It is estimated that the electronic records comprise some 8,400 pages.
5. Mr Smith said that he relied upon communications from the archive agent that 56 archive boxes of material had been located.
6. He also noted that there is no index of the individual documents held in archives. However, a sample was obtained of the records held in archives that related to the original application and a 'dip sample' was performed. He reported that: Nine boxes were recalled from archives. Each was 21 centimetres high and 41 centimetres long. It was estimated that each box contains 1000-1500 pages of information, or approximately 10,000 pages across the nine boxes.
7. The dip sample took him approximately two hours. Staff members from the Archive Management area helped him find the documents and then he undertook the search of the boxes personally.
8. Mr Smith stated that although the Applicant has attempted to shorten the list of items to which he seeks access, this does not materially narrow the scope of the access application. For example he noted that the amended application sought "statements, notes, papers, notebooks, handbag, exhibits and photos held in relation to ... Juanita Nielsen". He said that this item alone could cover almost everything in the hard copy and electronic files, as the investigation related to Ms Nielsen's disappearance and suspected murder. He also noted that the application seeks access to items that cannot be searched for by key word, including "notebooks", "handbag", "exhibits" and "photos". He said that identification of these items will require a search of all of the hard copy and electronic records. The amended scope would still require a document by document search of the records held in archive boxes and E@gle.i.
9. He further stated that it is not possible to identify the items requested in the amended application without reviewing the entire contents of the boxes that were located in response to the original application. Therefore, the Applicant's attempt to shorten the list of items to which he seeks access does not reduce the resources required to complete such a search in any material way.
10. In regard to the resources that would be needed to deal with the access application Mr Smith stated: In my experience, it would require many days to simply collate and index this material for the purposes of the GIPA application. To read and assess the material to determine which should be released and to apply redaction would take many weeks. I estimate that it would take one review officer in excess of 4 hours to review the information in each box. On this estimate, it would take a review officer 224 hours or 32 working days to read each document. This estimate does not consider the further time it would require to process the relevant information including to list and paginate records, consult with the relevant Command as to disclosure of any information, balance the public interests for and against disclosure, apply redactions, draft a notice of decision, and scan records including conversion of any audio or video footage. I conservatively estimate this would require a further 28 hours or 4 working days. It was also not possible to easily identify with certainty the records that would be responsive to the Amended Access Application in E@gle.i. as most aspects of the Amended Access Application are not word-searchable within the E@gle.i system. For instance, item 6 'Charge sheets etc for kidnapping charges and sentencing submission. Case notes, statements, police evidence and decision'. Effectively the entire E@qle.i holdings would need to be reviewed to identify whether the information sought by the applicant is held on the database. A search for those type of documents on the electronic system would take approximately 1 minute per page, or 140 hours for the entire 8404 pages of documents.
11. Mr Smith confirmed that his estimate of time is a conservative estimate. He said that in order to consider all the information it would have to be scanned into the system and then read, considered and possible redacted.
12. He confirmed that there is no schedule to the archived material. He said that to produce a schedule of the material as well as the electronic material, it would be necessary to consider every single document. It would take a significant amount of time.
13. He said that the review officer who actually makes the final decision is going to have to be across all the material, so that if any redactions were applied they would be consistent. The homicide squad would have to be consulted as to whether or not the release of the information could potentially affect any possible future prosecution. It would be a big exercise.
14. Mr Smith agreed that the New South Wales Police Force is a large agency which employs tens of thousands of officers and receives a substantial budget allocation. However, he said that the resources allocated to deal with access applications under the GIPA Act are determined by senior executives of the Respondent, bearing in mind the budget allocated to the agency and the need to perform multiple important statutory functions.
15. He considers that it is unlikely that additional resources would be acquired to respond to a single access application. The InfoLink Unit aims to use its resources most effectively. If the existing resources were used to deal with the Applicant's access application, it would divert time and personnel away from other applications.
16. He noted that the Applicant's access application seeks material that is historical in nature. When the allocation of resources is considered priority is likely to be given to matters where information has to be released because it is going to affect people immediately. If every review officer were allocated to deal with this application it would mean that a number of matters would not be completed in accordance with the GIPA Act timeframes. That would have real world impact.
17. The Respondent is required to perform a very significant number of statutory functions; they have public health orders to enforce but they are obviously engaged in frontline policing as well. To say that it is a very large agency with many employees and a large budget doesn't particularly assists the Tribunal.
18. Mr Smith denied that that the agency is refusing to deal with this application because the police will be embarrassed by potential discoveries of misconduct, even collusion into Juanita Nielsen's disappearance and murder. He said that it has been investigated several times, and there's been a parliamentary inquiry. He doesn't believe that the release of the whole file is going to release information that is not already known or, would add anything significant to the public debate in respect of how the murder investigation was conducted.
19. The Respondent notes that a number of the factors identified in Cianfrano and Colefax were codified by the insertion of sections 3A and 3B into the GIPA Act by the Government Information (Public Access) Amendment Act 2018. These provisions introduce a requirement that agencies balance the considerations relevant to their assessment of whether dealing with an application would involve an unreasonable and substantial diversion of resources, against the general public interest in favour of disclosure, and the demonstrable importance of the information to the applicant.
20. Section 60(3B) requires that the non-exhaustive considerations identified by an agency under section (3A) against disclosure must outweigh the general public interest in favour of disclosure and the demonstrable importance of the information to the applicant, including whether the information is personal information relating to the applicant or could assist that applicant in exercising any rights under an Act or law.
21. The Respondent notes that the effect of section 60(3B) was considered in Ruyters. It is submitted that the facts of the Ruyters case are similar to those in this matter in that the applicant sought an extensive amount of evidence relating to a murder investigation. At paragraphs [45] - [47] of Ruyters the Tribunal determined that the use of the words "general public interest" in section 60(3A)(b)(i) indicates that it is the inherent public interest in the disclosure of government information in section 12(1) that is to be given consideration, rather than any public interests connected with the particular information sought by the applicant. At paragraph [47] the Tribunal stated: In my view therefore the "general public interest in favour of the disclosure of government information" in s 60(3B) refers to the inherent public interest in the disclosure of government information as in s 12(1) and not to the other public interest considerations in favour of disclosure of the particular information sought as set out in the note to s12(2).
22. The Respondent contends that this construction accords with the exercise of the discretion under section 60(1)(a), which does not involve identifying and weighing the relevant public interests associated with the information sought, as there is correspondingly no need to search for and review the information.
23. I note that in his oral submissions Mr Wilkins indicated that he agreed with the Respondent in regard to this issue.
24. The Respondent acknowledges the general public interest in providing access to government information generally and the public interest that inevitably attends an unsolved disappearance and suspected homicide. However, he submits that the general public interest is outweighed in this case by the extensive resources required to deal with the access application.
25. The Respondent submits that it is irrelevant that that information about an unsolved homicide is or might be of interest to the public. The Tribunal is not called upon to undertake the balancing exercise of public interests for and against disclosure under section 13 of the GIPA Act when reviewing a decision made under section 60(1)(a). Similarly, the Respondent submits that the Applicant's submissions about the public interests in disclosure outweighing the interests against disclosure are also irrelevant to the Tribunal's consideration.
26. The Respondent further submitted that the requested information is not the Applicant's personal information, nor will it assist him to exercise any rights under an Act or law. Accordingly, the factors under section 60(3A)(b)(i) and (ii) do not apply for consideration.
27. The Respondent submits that the relevant factors against disclosure in this proceeding are: 1. that the terms of the amended access application remain very broad, extensive and in several cases are not isolated to information contained in a record; 2. the volume of potentially responsive information is very large and, the volume of records that would need to be reviewed in order to identify responsive information well exceeds 8,000 pages; 3. the Respondent has a comparatively large team dedicated to dealing with access applications under the GIPA Act; however, dealing with the access application would divert resources away from some 72 access applications for 56 days; 4. the time it would take to deal with the access application significantly exceeds the 20 day time period in which an access application must be decided under section 57 of the GIPA Act; 5. the Respondent's estimate of the time it would take to deal with the Amended Access Application is based on a 'dip sample' of 9 boxes of archived hard copy records and initial key word searches of its E@gle.i electronic database; 6. the agency has engaged with the Applicant to try and reduce his access application down to a reasonable scope; and 7. while the information appears to be of interest to the Applicant, it is not of particular importance to him in that it does not affect his personal interests.
28. In relation to the Assistance provided to the Applicant to narrow his access application, the Respondent points to correspondence to the Applicant in August 2020. Further, he points to the mediation was held in this matter in September 2020. The Tribunal made an order that the mediation was to proceed for the express purpose of discussing the scope pf the access application. The applicant narrowed his access application shortly after the mediation.

The Information Commissioner's submissions

1. Written submissions have been filed by the Information Commissioner. Mr. Wilkins also attended the hearing on behalf of the Information Commissioner and made oral submissions. The Information Commissioner's submissions set out the legal principles applicable to review of decisions under section 60(1)(a) and referred to a number of decisions that are relevant to these proceedings. The Respondent has indicated general agreement with the Information Commissioner's position.
2. She notes that while the making of a valid access application under the GIPA Act provides the applicant with a legally enforceable right to be provided with the information under section 9, section 60(1)(a) sets aside the decision-making obligations placed on the agency under Part 4 which would otherwise apply when dealing with and determining an access application. The effect is that refusing to deal with an application means an agency can withhold access to information absent deliberation of the consideration of the public interest in the content of the information.
3. An agency is not required to deal with an access application that would require an unreasonable and substantial diversion of the agency's resources. The section 60(1)(a) discretion is based on an assessment of the resources that would be needed to deal with the application.
4. Whether or not the resources that would be needed to deal with the application would be excessive or unreasonable will depend on the circumstances of each case, and is a matter for the decision-maker or the Tribunal to determine with reference to the objects of the GIPA Act: Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186 at paragraph [81]. In Zonnevylle the Tribunal found: In the circumstances of this application, undertaking the necessary steps to rebuild archived material to access the information sought, a process which was estimated to take six weeks, is unreasonable.
5. The Information Commissioner recommends that agencies should consider all access applications carefully, be specific with any reasons for refusal, and document those reasons clearly. In examining issues where an agency has claimed that dealing with an access application would require an unreasonable and substantial diversion of resources, the Tribunal has, looked for evidence and submissions by the agency of the impact and effect of meeting the access request.
6. The Information Commissioner also notes that it is for the Respondent to demonstrate to the Tribunal that the assistance that it provided to the Applicant in relation to narrowing the scope of the access application satisfies its obligations under the GIPA Act. It is for the Tribunal to consider the available information and determine whether the agency has satisfied the specific requirement to provide a reasonable opportunity to the Applicant to amend the application, and the general requirement in section 16 to provide advice and assistance to persons requesting access to government information.
7. Sections 60(3A) and 60(3B) place a requirement on the agency in the decision-making process to consider the public interest in favour of disclosure enunciated in section 12(1) of the GIPA Act, and the importance of the information to the access applicant as a relevant factor. The express reference to an 'agency's size and resources' in section 60(3A) indicates that whether the agency in question is large and well-resourced will generally be relevant considerations which may be taken into account by the Tribunal.
8. The power of an agency to refuse to deal with an access application should be used only as a last resort after making every attempt to assist an applicant to narrow their request.

The Applicant's case

1. I note that the majority of the Applicant's material goes to the issue of the public interest in the release of the requested information. That is not an issue for determination in these proceedings.
2. The Applicant has indicated that he received advice that there is no active investigation into the disappearance and suspected murder of Juanita Neilsen. The issue of whether or not there is an ongoing investigation is not an issue for determination in these proceedings.
3. The Applicant maintains that Mr Smith's evidence is inaccurate insofar as it purports to show why dealing with the application would require an unreasonable and substantial diversion of the agency's resources. He submits that it is based on conjecture and, in any event, the time claimed to review files is not extravagant or unreasonable considering the public significance of this murder case.
4. He submits that the Respondent's estimate of work for the agency is exaggerated and inaccurate. He says that other applications need not be compromised if the E@gle.i system is used properly and the agency adopts a whole-of-agency approach to the allocation of human resources. No substantive evidence has been provided to justify the Respondent's claim that "72 access applications" over 56 days would be compromised.
5. In regard to Mr Smith's evidence he submitted that:

• Mr Smith is overstating the resources that would be required. He admits there are 13 officers allocated to determining applications and 2 officers allocated to internal reviews. However, if all of them were allocated to the Nielsen case the task could be completed sooner;
• Mr Smith claims there is "no index". However, he has already admitted he has conducted word searches using E@gle.i;
• His estimate that each box contains 1,000 to 1,500 pages is a wide variance and indicates the pages in boxes were not counted;
• He states an index is required, but why? E@gle.i allows word text searches which he has undertaken;
• He claims that redactions would take "many weeks" However, if the Tribunal allows access, no redactions are required;
• He notes "Charge sheets ... are not word searchable". However these are not requested ;
• He claims 72 other applications would be delayed but has not taken into account that the agency may employ extra staff; and
• He submits that Mr Smith's affidavit is fundamentally flawed and should be set aside.

1. He contends that this case does not involve a waste of resources and more resources could be allocated to the exercise. He submits that the agency's size is considerable. The Police Force Annual Report 2017 indicated that it had 20,667 employees: 16,649 police officers and 4,018 civilian staff. In the 2016-17 financial year, the NSW Government funding contributions to the NSW Police Force were $3,356 billion. He submits that there are ample resources available within the extensive time limit allowed to fulfil the request, especially if extra resources are allocated.
2. He submitted that Mr Smith has not indicated how many additional resources can be applied to this case, or if any have been requested. No information is provided from the Respondent's senior executives.
3. He submits that in Zonnevylle the Tribunal found that the question of whther or not the resources needed to deal with an application would be unreasonable depends on the circumstance of each case. He submits that the circumstances of this case illustrate the need for access.
4. He noted that: 1. The terms of the request are now reduced and particularised. They are not global or expressed in vague, general terms; 2. The importance of the documents go to the heart of the administration of justice in this state. They can be provided in a reasonable time using the agency's vast resources and/or by employing additional resources; 3. The case is manageable for the agency considering its size and resources. Mr Smith has misconstrued section 60 to mean that only the resources of his department are to be used for an assessment. However, section 60 refers to the "agency" which in this case is NSW Police Force; 4. The agency's estimate of the number of documents affected is distorted but the time involved and the cost can be balanced against the importance of the murder case in the public interest in favour of disclosure; 5. The Applicant has taken a co-operative approach in redrawing the boundaries of the application; 6. The Respondent misunderstands section 57 of the GIPA Act claiming there is a strict 20-day time limit for assessments. There are extensive, perhaps even unlimited timelines, available to the agency under the GIPA Act sections 57(3) and (4), with agreement of the Applicant; 7. Even if the work involves more the 40 hours of work this does not automatically prohibit disclosure. All cases are to be considered on their merits; 8. The estimate of the time required seems to be mathematically incorrect; 9. The Applicant is not a repeat applicant to the agency.
5. In relation to the scope of the application the Applicant submitted that he has reduced the scope of the request and particularised and justified items.
6. The Applicant submitted that Mr Smith's estimate that one officer would take four hours to review each box is exaggerated. He estimates that one hour is sufficient. Further, there is no estimate of the reduced workload if four officers were allocated to the task. He estimated that the work could be accomplished in one week based on 1 hour per box for 50 boxes i.e. 150 hours or 21 days. if four officers were allocated to the task it would take less than one week.

Consideration

1. The primary contention of the Respondent is that dealing with the access application would require an unreasonable and substantial diversion of its resources. This position is based on its assessment of the volume of records, the time involved and the resources of the agency that are available to deal with the application.
2. Section 60(4) of the GIPA Act provides that before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. In the circumstances of this matter I am satisfied that the Respondent has satisfied that requirement.
3. Relevant to the question of whether dealing with the application requires an unreasonable and substantial diversion of the Respondent's resources are the factors in subsections 60(3A) and (3B) of the GIPA Act. The Respondent relies on the evidence of Mr Smith in that regard. I found Mr Smith to be a reliable witness and I accept his evidence.

Time to process the application

1. Mr Smith stated that the requested information comprises both boxes of archived material and electronic records. He estimates that the archived material is contained in 56 boxes and it was estimated that each box contains 1000-1500 pages of information. He stated that there are also electronic records that are captured within the scope of the request. It is estimated that the electronic records comprise some 8,400 pages.
2. Mr Smith said that he relied upon communications from the archive agent that 56 archive boxes of material had been located. He also noted that there is no index of the individual documents held in archives. He estimated that it would require many days to simply collate and index this material for the purposes of the GIPA application. To read and assess the material to determine which should be released and to apply redaction would take many weeks. He estimated that it would take a review officer 224 hours or 32 working days to read each document. This estimate does not consider the further time it would require to process the relevant information. He estimated that this would require a further 28 hours or 4 working days. A search on the electronic system would take approximately 140 hours.
3. Mr Smith confirmed that his estimate of time is a conservative estimate and I accept that this is most likely the case.

The agency's size and resources

1. The express reference to "the agency's size and resources" included in section 60(3A) now makes clear that whether the agency in question is large and well-resourced will generally be a relevant consideration which may be taken into account by the Tribunal in determining matters under section 60(1)(a): see the discussion in Ruyters referred to above.
2. It is not in dispute that the Respondent is a large and well-resourced agency. However, as has been noted, it is required to perform a very significant number of statutory functions including frontline policing. Mr Smith's evidence is that there are 13 officers allocated to the determination of access applications at first instance and 2 officers allocated to internal reviews and remitted decisions. The Respondent receives approximately 6,000 - 7,000 GIPA Act access applications per year. This means each officer has, on average, 3.5 hours to deal with each access application.

The decision period under section 57

1. Section 57 of the GIPA Act provides that an agency must decide an access application within 20 working days. It is clear that the time required to process this application would be far greater than 20 working days. I do not accept the Applicants estimate of the time that would be involved in the processes that would need to be undertaken. In my view the Applicant has misunderstood the extent of the tasks involved. However, even if the Applicant's estimate is correct it is likely that the process would take more than 20 days because of the sheer volume of the material.

The section 60(3B) matters

1. Subsection 60(3B) requires consideration of the following matters: (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the Applicant, including whether the information - (i) is personal information that relates to the Applicant, or (ii) could assist the Applicant in exercising any rights under any Act or law.
2. It is not in dispute that the requested information is not personal information that relates to the Applicant. He has not put forward any details of whether the information could assist him in exercising any rights under any Act or law. I have no basis on which I could conclude that it is information that could assist the Applicant in that regard.
3. In Ruyters the Tribunal found that the term "general public interest" in section 60(3B) should be given the same meaning as in section 12(1) of the GIPA Act which is the inherent public interest in the disclosure of any government information. The Information Commissioner agrees with that construction.
4. I agree with the Respondent's contention that this construction accords with the exercise of the discretion under section 60(1)(a), which does not involve identifying and weighing the relevant public interests associated with the information sought, as there is correspondingly no need to search for and review the information.

Importance of the information to the Applicant

1. There is no doubt that the Applicant is interested in obtaining the requested information and that he considers that the investigation related to Ms Nielsen's disappearance and suspected murder is of significant public interest. I accept that he considers that information about an unsolved disappearance and suspected homicide may be of considerable general public interest. It seems that it is of particular interest to him in his role with the Potts Point & Kings Cross Heritage & Residents' Society.
2. However, he has not put forward any details of whether the information is important to him in any other respect. I have no basis on which I could conclude that it is information that is important to the Applicant other than as a member of a local interest group.

Conclusions

1. Subsection 60(3B) provides that any consideration under section 60(3A) must, on balance, outweigh the general public interest in favour of the disclosure of government information and the demonstrable importance of the information to the applicant. The general public interest in favour of the disclosure of government information is relevant in this case, as it is in every case. However, the information that the Applicant seeks is not his personal information, it is not clear how it will assist him or his interest in obtaining the information.
2. The Applicant submits that the significant public interest in the unsolved disappearance and suspected murder of Ms Nielsen outweighs the Respondent's case that dealing with the application will be an unreasonable and substantial diversion of resources.
3. On the evidence before me I am satisfied that the volume of information involved in the request is considerable. There is no doubt that the time required to deal adequately with the access application would far exceed 30 working days. Dealing with this application would consume a substantial proportion of the agency's resources to deal with all access applications that it receives. As was noted by the Appeal Panel in Danis, access applicants are assisted generally if agencies are not tied down by voluminous applications.
4. The NSW Police Force is a large agency and, as can be seen from the evidence given by Mr Smith, devotes considerable resources to dealing with the many requests to it for access to information. However, its resources are limited. If the Respondent were to be able to comply with the 20 working days decision period provided for under section 57 it would be necessary to divert resources from other programs or from the processing of other access applications. This would have a consequential effect upon the agency's ability to deal with other access applications. In the circumstances I do not consider that this is warranted.
5. I am satisfied that dealing with the application would require an unreasonable and substantial diversion of the agency's resources. The Applicant has failed to establish the demonstrable importance of the information to him. I am therefore satisfied that, having regard to the volume of the information involved, the time needed to deal adequately with the request and the cost of doing so and other relevant matters referred to above that these matters outweigh the matters referred to in section 60(3B).
6. I am therefore satisfied that dealing with the application would require an unreasonable and substantial diversion of the Respondent's resources and that the correct preferable decision is to refuse to deal with the application pursuant to section 60(1)(a) of the GIPA Act.

Orders 1. The decision under review is 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: 08 February 2022