The Applicant has sought review of several decisions by the Respondent in relation to access applications brought under the Government Information (Public Access) Act 2009 ("the GIPA Act") These proceedings are interrelated. They were considered to some extent in my decision in Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 in which I affirmed the Respondent's decision that was the subject of proceedings 1410331.
Matter numbers 1410329 and 1410330 remain outstanding. Matter number 1510515 appears to be merely a request for a referral under section 112 of the GIPA Act rather than separate applications for review of a decision by the Respondent.
[2]
Background
The Respondent has provided this background to the matters. It appears to be accurate and I adopt it for the purposes of this decision.
In matter 1410331, the Applicant sought the following categories of documents:
DEC Policy document regarding use and management of DEC servers…
Any related document to the above which details the circumstances, procedures, guidelines, processes whereby DEC or their representatives may take action such that a party may be filtered/blocked from corresponding with det.nsw.edu.au
Code of conduct policy for use and management of DEC IT systems and complaints handling & processes including the details of the unit who is charged with handling complaints
Documents relating to the blocking of all emails related to or associated with a) Peter Zonnevylle and/or Maxine Zonnevylle....
Documents detailing who in authority were either consulted with the blocking/filtering of the above person/company/keywords/websites/emails and authorised the blocking/filtering of the above person/company/keywords/websites/emails.
Full list of all emails blocked/filtered
The Respondent was unable to identify any documents falling within categories 1 and 2. A document was found in relation to category 3, however, the decision maker determined that this document was publicly available, on the Department's website, and declined to provide a copy to the Applicant under section 59(1)(a) of the GIPA Act. The Respondent provided a copy of the link at which the documents could be accessed.
In relation to categories 4-6, the Respondent located 307 pages of documentation, most of which it decided to release in full. However, it decided to redact some material on the basis of legal professional privilege and public interest consideration 3(f) of the table in section 14. The Respondent, however, determined that processing fees applied and determined, pursuant to section 64(4) of the GIPA Act to make access to the documents conditional on the payment of the processing charge. As the Applicant had not paid the processing charge, she was not provided with any of the material.
I affirmed the Respondent's decision in these respects in my decision in relation to matter 1410331: Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10. However, the Applicant in this matter, acting as agent for the Applicant in matter 1410331, has requested that the Tribunal take action under section 112 of the GIPA Act in regard to matter 1410331. I will address that issue later in these reasons.
Also before the Tribunal are the issues arising in matters 1410329 and 1410330. Both of these matters overlap with matter 1410331.
Matter 1410331 corresponds with the Respondent's departmental application number 13-252. Matter 1410329 corresponds with the Respondent's departmental application number 14-046 and Matter 1410330 corresponds with the Respondent's departmental application number 14-107. In each matter the parties have used the Tribunal file number and the Respondent's departmental application number interchangeably. I will also adopt that approach in these reasons.
[3]
Matter 1410329/14-046
The access application in Matter 1410329/14-046 sought access to the following information:
"1. Documentation relating to where DEC senior staff authorized/directed the DEC IT department/server managers (or other body) to block; all emails from any/all of the following:
a. Industrial & Scientific Supply Co. Pty Ltd (isscosyd@bigpond.com)
b. ISSCO (www.issco.com.au; sales@issco.com.au; support@issco.com.au)
c. ISSCOED (www.isscoed.com.au; sales@isscoed.com.au; support@isscoed.com.au)
d. ScienceSupplies (www.sciencesupplies.com; sales@sciencesupplies.com.au, support@sciencesupplies.com.au)
e. ScienceLabSupplies (www.sciencelabsupplies.com; sales@sclencelabsupplies.com.au; support@sciencelabsupplies.com.au)
f Peter Zonnevylle (iind1791@bigpond.net.au; pzgipa@yahoo.com.au; peterzgipa@yahoo.com.au)
g. and any other associated websites, email addresses that DEC searched for in connection to any/all of the above to any/all NSW state schools or any/all other NSW educational institution (TAFEs, colleges, etc.)
Documentation to include names of those authorizing/consulting/advising on this action, (for consultants/advisors, Gov. Id numbers will suffice to prevent personal privacy concerns). Documentation to include any associated reports produced by DEC relating to any of the above entities.
2. All referencing documentation (legislation, acts, codes, statutes, etc.) DEC staff used to determine/justify the above action/authorization to block the emails
3. Documentation detailing when each email address (a. to g.) was blocked
4. All referencing documentation (legislation, acts, codes, statutes, etc.) DEC staff used to determine/justify the action/authorization to block all emails from NSW state schools or any other NSW educational institution going to those emails detail in item 1. (a. to g.)
5. Documentation detailing searches done by DEC in order to identify any websites, emails associated with any of entities a. to g. (and by whom the searches were made by)
6. Any directives/memos/etc sent by DEC to NSW state schools or other NSW educational institutions relatingto any of the identities in 1".
I note that the Applicant subsequently purported to reduce the scope of this request and re-scope the access application. Notwithstanding that attempt, the scope of the request does not appear to have been narrowed to any significant extent and in some respects it purported to expand the scope by requesting information held by the Respondent up until July 2015 - the original access application was lodged with the Respondent in March 2014.
In the circumstances, I do not consider that the Applicant's attempt to re-scope his access application is valid. I therefore base my consideration on the original access application received by the Respondent and which was the subject of the Respondent's determination.
The Respondent's R/Deputy Secretary Education and Communities decided to refuse to deal with the Applicant's access application. The Applicant was advised that the reasons for the refusal were that:
● "the Department has decided a previous request for substantially the same information, made by a person who was acting in concert with you in connection with that application and there is no reason to believe that the Department would make a different decision on the new application (s.60 (1)(b));and
● in respect of any additional information you have requested, it would be an unreasonable and substantial diversion of resources to process (s.60 (1)(a))."
The decision maker formed the view that categories 1 - 4 and 6 of the access application requested information that fell within the scope of what had been sought in matter 1410331/13-252 and, accordingly, refused to deal with the application under section 60(1)(a) of the GIPA Act (unreasonable and substantial diversion of resources) and section 60(1)(b) ("the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information ... and there are no reasonable grounds for believing that the agency would make a different decision on the application"). The Respondent also submits that it would have been open to it to refuse to deal with category 5 on the basis of section 60(1)(a)of the GIPA Act. The question arises as to whether that is correct.
The decision maker accepted that category 5 could encompass documents that fall outside the scope of application 1410331/13-252 and, accordingly, performed additional searches for that information. These searches located no additional documentation.
The question arises therefore as to whether the searches undertaken were sufficient.
The Respondent submits that they were reasonable and sufficient. It further submits, however, that it would have also been open to the Respondent to refuse to deal with category 5 on the basis of section 60(1)(a).
[4]
Section 60(3) of the GIPA Act
Section 60(3) of the GIPA Act provides:
(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.
The question arises as to whether matter 1410331/13-252 and matter 1410329/14-046 are related for the purposes of section 60(3) of the GIPA Act.
The Respondent submits that matter 1410329/14-046 is an attempt to expand on what had already been requested in matter 1410331/13-252. The Respondent contends that it would be wrong for the Tribunal to treat the two applications as separate.
The Respondent further submits that it is not possible to excise category 5 of matter 1410329/14-046 from the remainder of that application, on the assumption that it goes beyond the scope of 1410331/13-252. To do so in order to avoid the request being interpreted as voluminous would be contrary to the objects of section 60(3) of the GIPA Act.
[5]
Are Applications 1410331/13-252 and 1410329/14-046 related for the purposes of section 60(3)
Judicial Member Molony considered section 60(3) in Colefax v Department of Education and Communities (NSW) (No 1) [2013] NSWADT 42 ("Colefax No 1"). He relevantly stated:
25. I do not accept that the number of previous applications submitted by Ms Colefax alone, or the resources previously allocated to dealing with them, are relevant factors that the Agency can take into account when refusing to deal with an application on the basis that request will require an unreasonable and substantial diversion of the agency's resources. While previous applications relating to substantially the same information having been determined is such a ground, previous applications that do not relate to the same information is not. ...
…
37. ... In contrast with the provisions of s 25(1a) of the repealed Freedom of Information Act 1989, s 60(3) of the GIPA Act expressly provides that an agency is entitled to consider previous applications, " if the agency determines that the applications are related and are made by the same applicant."
38. The real issue, in my opinion, is whether the four applications are related. There is no doubt that they are made by the same applicant.
39. The Macquarie Dictionary Online defines related thus -
adjective 1. associated; connected.
2. allied by nature, origin, kinship, marriage, etc.
3. ....
40. Whether or not access applications made by the same applicant are related is a question of degree, with the assessment to be made in the light of the circumstances of each case, having regard to the purposes of s 60(1)(a) and (3). That purpose is to prevent a drain on departmental resources created by voluminous requests, and to prevent the splitting of access applications into two or more, whether at the same time or not, in an attempt to avoid them being categorised as voluminous. As Secretary, Department of Treasury and Finance v Kelly demonstrates the inquiry is concerned with common subject matter that connects the applications. The fact that they are made to separate Departments or Agencies will not necessarily prevent multiple inquiries relating to a common subject matter from being aggregated.
The Respondent submits that there are a number of reasons why the Tribunal should conclude that the two applications are related:
First, although application 1410331/13-252 was made by Ms Zonnevylle and 1410329/14-046 by Mr Zonnevylle, the material before the Tribunal quite clearly demonstrates that Mr and Ms Zonnevylle were, to some degree, acting in concert and had similar, if not identical, interests in receiving the information.
Secondly, from the date of the first planning meeting in matter 1410331/13-252 on 5 August 2014, Mr Zonnevylle represented that he had the standing to seek a review of the decision in matter 1410331/13-252 notwithstanding that he was not the person who had applied for review in that case. Further, Mr Zonnevylle has admitted that the applications are all interconnect.
Thirdly, there is an overlap between what has been requested in the two applications. The Respondent contends that categories 1 - 4 and 6 of 1410329/14-046 fall within the scope of what was requested in 1410331/13-252.
I understand that the Applicant has conceded that the matters are related. Nevertheless, on the basis of the information before me I am satisfied that Applications 1410331/13-252 and 1410329/14-046 are related for the purposes of section 60(3) of the GIPA Act.
[6]
Would dealing with access application 14-046 represent a substantial and unreasonable diversion of resources?
The Respondent submits that given the time already spent processing 1410331/13-252, searching for additional materials in 1410329/14-046 would represent an unreasonable and substantial diversion of resources for the purposes of section 60(1)(a).
In Cianfrano v Premier's Department [2006] NSWADT 137 at paragraphs [62] - [63] O'Connor DCJ identified considerations relevant to the assessment of that would represent an unreasonable and substantial diversion of resources for the purposes of the Freedom of Information Act 1989. He stated:
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' (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.
63 This is, of course, not intended, in any way, to be an exhaustive list of possible considerations.
In Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130, the Tribunal confirmed that the considerations identified in Cianfrano remained relevant to the assessment to be performed under section 60(1)(a).
The Respondent contends that what is sought in categories 1-4 and 6 of application 1410329/14-046 is co-extensive with what had been sought in application 1410331/13-252 and that neither application is expressed in particularly narrow or confined terms.
Ms Pendergast gave the evidence that it took 46 hours and 30 minutes to process access application 13-252. Given my view that the applications are "substantially the same" for the purposes of section 60(1)(b), Ms Pendergast's evidence gives an indication of the time that it might take to process application the access application 14-046.
In Colefax No 1 at paragraph [40], the Tribunal found that an applicant should not be permitted to split a request between multiple applications to avoid the operation of section 60(3). I agree with that view. Therefore, the Applicant should not be permitted to excise category 5 of 1410329/14-046 from the remainder of that application to avoid the request being interpreted as voluminous. To do so would be contrary to the objects of section 60(3) as identified by Colefax No 1.
In the circumstances, I am satisfied that dealing with access application 14-046 would represent a substantial and unreasonable diversion of resources. Therefore, the Respondent was entitled to refuse to deal with the access application.
In any event, the Respondent conducted searches for further material.
Even if I am wrong in regard to my view that dealing with access application 14-046 would represent a substantial and unreasonable diversion of resources, the Respondent has already decided a previous application for the information concerned (or information that is substantially the same as that information ... and there are no reasonable grounds for believing that the agency would make a different decision on the application. Accordingly, section 60(1)(b) relevantly provides that the Respondent may refuse to deal with the access application.
In Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 at [11] Judicial Member Isenberg applied the approach to sufficiency of search as had been applied under the Freedom of Information Act. In doing so, she applied the decision of Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. At paragraph [18] of Hemeon, O'Connor DCJ, in turn, adopted the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning [1994] QlCmr 7; (1994) 1 QAR 464, which identified two questions for consideration:
(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
In relation to the first question, it is not enough for the Applicant to merely assert non-compliance on the basis of a general distrust of the agency: Camilleri at paragraph [13], Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195 at paragraph [69]). In Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 at paragraph [63], O'Connor DCJ held that it was only necessary that reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate (Camilleri at paragraph [15]).
In the present circumstances, I am satisfied that the Respondent performed sufficient searches for the documents requested and that there are no reasonable grounds for the Tribunal to believe that further documents exist.
That being the case, the Respondent's decision should be affirmed.
[7]
Matter 1410330/14-107
The access application in Matter 1410330/14-107 sought access to the following information:
Item 1. Documentation relating to where DEC senior staff authorized/directed the DEC IT department/server managers (or other body) to block all emails from any/all of the following:
a. Peter Zonnevylle; peterzgipa@yahoo.com.au; pzgipa@yahoo.com.au
a. Industrial & Scientific Supply Co. Pty Ltd (isscisyd@bigpond.com; iind1791@bigpond.net.au)
b. sales@issco.com.au; support@issco.com.au
c. sales@isscoed.com; support@isscoed.com; sales@isscoed.com.au; support@isscoed.com.au
d. sales@sciencesupplies.com.au; support@sciencesupplies.com.ausales@sciencelabsupplies.com.au;support@sciencelabsupplies.com.au
e. and any other associated websites, email addresses that DEC has on record for any/all of the above to/from NSW state schools or any other NSW educational institution (TAFEs, colleges, etc) Documentation to include names of those authorizing/contributing to this action. Documentation to include dates from when each email address was blocked (to and from)
Item 2. All referencing documentation (legislation, acts, codes, statutes, etc) DEC staff used to determine/justify the above action/authorization to block the emails
Item 3. Copies of all emails blocked by DEC (unredacted) sent by NSW schools or TAFEs or other institutions to any of the above emails in Item 1.
Item 4. All referencing documentation (legal statutes, legislation, acts, codes, statutes, etc) DEC staff used to determine/justify the action/authorization to block emails from any NSW state schools or other NSW educational institution sent to those emails detail in item 1.
Item 5. Any directives/memos/etc sent by DEC to NSW state schools or other NSW educational institutions relating to any of the identities in 1.
Re GIPA-13-252 Notice of Decision
Item 6. Documentation proving/showing the most efficient means reasonably available to the department to search for the government information applied for in GIPA-13-252 was used.
Item 7. Documents clearly showing who is
the client and.
the legal adviser (re page 5 of 9)
to establish legal privilege exists.
Item 8. Proof that legal professional privilege applies to excluded pages/information
Item 9. Documents showing what legal proceedings were anticipated by DEC with respect to GIPA-13-252
Item 10. Documents/proof of Riordan's statement:
"harassed by receiving unsolicited facsimiles messages on a daily basis as currently occurs with some senior officers of the department"
Detailing names of specific senior officer who are specifically being harassed.
Item 11. Documents re "disclosing the names and telephone-numbers of these staff members has no bearing" showing where "telephone numbers were requested" (pg7 of 9)
Item 12. Documents/proof of extra processing time, the period of time over which the "large volume of material" refers to,
"Due to the large volume of material that Mr Peter Zonnevylle has sent the Dept … an extra 10 hours"
Item 13. (Documents/proof of processing time to review and redact over 1300 names & contact numbers from records.
Documents showing breakdown of whether redacted names & contact numbers were
a. DEC head office staff
b. NSW state school employees (using any of the emails in Item 1.)
Item 14. Documents/proof sent by DEC to OIC for proof requested by OIC during review of GIPA-13-252
In particular information proving that "he (Peter Zonnevylle) regularly sends facsimile messages to the Department alleging misconduct and naming officers who he believes are responsible for misconduct". (Documents/proof where DEC staff members fear that if their names are not redacted they will be harassed by Peter Zonnevylle by receiving unsolicited facsimile messages on a daily basis, as currently occurs with some senior officers of DEC).
Item 15. Proof that Peter Zonnevylle is harassing senior DEC staff daily.
Documents showing complaints lodged within DEC re Peter Zonnevylle's daily harassment/other harassment of DEC staff.
Documents/copies of complaints sent by DEC to Peter Zonnevylle to stop the harassment.
Detailing names of those people who have formally lodged/sent such complaints and copies of theircomplaints.
Item 16. Legal action taken by DEC staff/DEC to stop alleged harassment and legal basis to take action.
Item 17. Documents/memos/etc sent by any DEC staff referring to Peter Zonnevylle or GIPA-13-252 to OIC.
Item 18. Documents received by DEC from OIC relating to the review of GIPA-13-252
Item 19. Statutes/directives/etc used by DEC'S administrative decision to refuse the request in GIPA-13-252
(and all other correspondence) from Peter Zonnevylle to send DEC correspondence by email to minimize delays
Item 20. Documents provided by DEC to ICAC and documents sent by ICAC to DEC regarding DEC tender DETPR-35-11
Item 21. Copy of statutory declaration or similar signed by Bruniges or Riordan guaranteeing DEC procurement is free of corruption (requested in my previous correspondence relating to the Public Interest Factor relating to GIPA-13-252)
Item 22. Documents/memos/directives within DEC relating to DEC staff handling of correspondence/contact/GIPA enquiries from Peter Zonnevylle or related entities (Item 1)
Item 23. Documents showing where DEC has allowed a public interest factor reduction in processing charges in relation to a formal GIPA enquiry (showing GIPA reference numbers), between 2012 and May 12014
Item 24. Documents between DEC and the NSW Ombudsman and/or ICAC relating to any complaints concerning DEC senior staff between 2010 and May 12014
Item 25. Documents showing total income DEC made from NSW schools (from commissions, management fees, building related fees and any other income generating mechanism not clearly listed in the Annual Reports excluding school student fees)
For the periods 2009-2010,2010-2011, 2011-2012,2012-1013,2013-2014 (to May 1,2014)
We request that DEC GIPA make all efforts to assist us to make this a valid GIPA
Enquiry …
I note that the Applicant subsequently also purported to reduce the scope of this request and re-scope the application. Notwithstanding that attempt, the scope of the request does not appear to have been narrowed to any significant extent and to a large extent it purported to expand the scope by requesting information held by the Respondent up until July 2015 - the original access application was lodged with the Respondent in May 2014.
In the circumstances, I do not consider that the Applicant's attempt to re-scope his access application is valid. I therefore base my consideration on the original access application that was received by the Respondent and which was the subject of its determination.
The Respondent's R/Senior Information Access Officer, Ms Jenni Pendergast, decided to refuse to deal with the access application. She wrote to the Applicant and advised:
Your application is invalid because you have not provided enough detail to enable the Department to identify the information you are seeking (section 41(1)(e) of the GIPA Act). I cannot identify the multitude of information you seek which includes proof of legal action, proof of harassing emails and facsimiles that you have sent to the Department, statutory declarations from the Secretary and information from the ICAC.
She requested that he reduce the scope of his access application and provided some guidance as to how this could be done.
Ms Pendergast also advised that she was refusing to deal with the application because some of the items (Items 1 - 5) had been decided previously and there were no reasonable grounds for believing that the agency would make a different decision in this application: section 60(1)(b) of the GIPA Act; or because the items (Items 6 - 25) represented a substantial and unreasonable diversion of resources and the Respondent was entitled to refuse to deal with the application pursuant to section 60(l)(a)of the GIPA Act.
The Respondent contends that Items 1 - 4 of the access application in matter 1410330/14-107 are worded identically to categories 1 - 4 of the access application in matter 1410329/14-046. Similarly, Item 5 of application 1410330/14-107 is worded identically to category 6 of 1410329/14-046. Further, it says that those items of the access application in matter 1410330/14-107 seek the same information that was the subject of application 1410331/13-252.
It submits that it follows that it was correct to refuse to deal with these parts of the application on the basis of section 60(1)(b). Alternatively, the Respondent submits that it would amount to an "unreasonable and substantial diversion" of resources to require it to search for this material.
I am satisfied that categories 1-5 of 1410330/14-107 seek information that was the subject of application to 1410331/13-252. For the same reasons that I consider that Applications 1410331/13-252 and 1410329/14-046 are related for the purposes of section 60(3) of the GIPA Act I also consider that Applications 1410331/13-252 and 1410330/14-107 are related for the purposes of section 60(3) of the GIPA Act.
[8]
Would dealing with access application 14-107 represent a substantial and unreasonable diversion of resources?
It is not in dispute that categories 6 - 25 of the access application in matter 1410330/14-107 fall outside the scope of what was decided in 1410331/13-252. However, the Respondent contends that it was nevertheless correct to refuse to deal with this application as the processing of categories 6-25 of the application would amount to a substantial and unreasonable and substantial diversion of resources.
Categories 6-25 of 1410330/14-107 request a further 19 categories of documents. The breadth of this request suggests that a considerable degree of resources would be required to process the application. This is even more strongly suggested by the fact that it is difficult to comprehend what is being sought by many of the categories. Ms Pendergast's evidence is that it is difficult to provide an accurate estimate as to how long it would take to process the access application. However, she expresses the view that it would take more than 40 hours to respond to the request.
The Respondent submits that there is a real risk that the processing time will, in fact, exceed this estimate.
Further, the Respondent submits that dealing with several of these categories would require the Respondent to create new documentation contrary to section 75(2) of the GIPA Act.
Further, several of these categories request proof of certain matters that were raised in relation to access application 13-252. For example, that the processing fees had appropriately been charged; that certain documents were privileged; that alleged harassment had occurred. The Respondent submits that these categories are invalid pursuant to section 41(1)(e) of the GIPA Act which provides that an application is invalid unless it "include[s] such information as is reasonably necessary to enable the government information applied for to be identified".
The Respondent submits that these categories are inherently subjective. This makes it difficult for any officer of the Respondent to locate information which answers the requests. What the searching officer might regard as "proof" may not necessarily be regarded as such by the Applicant, or by this Tribunal.
The Respondent further submits that through this request the Applicant is effectively attempting to have the decision of the Respondent reviewed. That is, the Applicant appears to be requesting that the Respondent prove the correctness of its decision. I agree with the Respondent that this is not provided for by the GIPA Act. The appropriate mechanism for review of an agency's determination is by way of an application for review by this Tribunal, and not by way of an access application under the GIPA Act.
In my view, the Respondent was entitled to refuse to deal with the access application. I am satisfied that dealing with the access application would represent a substantial and unreasonable diversion of resources. I am also satisfied that large parts of the access application are invalid as it is not possible to ascertain what information is sought. The access application did not include the information that is reasonably necessary to enable the information applied for to be identified. Further, many of the categories require the Respondent to create new documentation. The Respondent was correct to refuse to deal with the access application.
That being the case, the Respondent's decision should be affirmed
[9]
Further issues
The Applicant has expressed concern and raised numerous issues in relation to the Respondent's conduct in processing his various access applications. He requested that the Tribunal take action pursuant to section 112 of the GIPA Act. This request is in relation to each of the matters 1410329/14-046, 1410330/14-107 and 1410331/13-252.
I have recently considered the Tribunal's powers in relation to section 112 in my decision in Zonnevylle v NSW Department of Finance & Services[ 2016] NSWCATAD 47. I will not reconsider that here.
Section 112 provides:
"If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency."
It is apparent from the section that the Tribunal's opinion must be formed "as a result of an NCAT administrative review". The materials supporting this opinion must have arisen in the course of the Tribunal reviewing a reviewable decision. In my view the Tribunal does not have the power to conduct a satellite hearing to determine the issue. It is also my view that the Tribunal does not have the power to issue a summons or require attendance for cross-examination or production of documents in order to form an opinion for the purposes of section 112.
Any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally; and the conduct complained about must be a failure "to exercise in good faith a function conferred on the officer by or under the GIPA Act'.
The relevant test is a subjective one; however there are some objective components as well. For example, consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials.
The mere fact that the Tribunal accepts that an aspect of the agency's decision is wrong is insufficient to bring the matter within the scope of section 112: see discussion in Zonnevylle v NSW Department of Finance & Services[ 2016] NSWCATAD 47.
[10]
The Applicant's contentions
The Applicant lodged several volumes of material in support of his request. In his submission he stated:
"The Applicant alleges that the following staff were "lacking good faith" with regards to the Applicant's GIPA applications related to File No.s 01410331, 01410330, 01410329
Joanne Bailey, CPO Peter Riordan
Jenny Pendergast Peter Johnson
The Applicant also includes: Elisse Stathis (IA Unit Manager);
Michele Bruniges. DG
However it is possible that further parties are associated with alleged misconduct & lack of good faith of whom the Applicant has been prevented from identifying.
…
[T]he Applicant will allege that there are credible indications that Ms Bailey or other DEC staff have interfered with the lawful processing & decision making of the Applicant's GIPA applications.
The Applicant has absolutely NO FAITH in the conduct of the Respondent."
The Applicant requested that the Tribunal make orders requiring the Respondent and various officers of the Respondent to file material which he contends will support his allegations that conduct by officers of the Respondent indicate a lack of good faith.
As I have noted above, it is my view that the Tribunal does not have the power to require production of documents for the purposes of determining a request for a referral under section 112. In my view the Tribunal does not have the power to make the orders for filing of material that the Applicant has requested.
The Applicant expressed what he referred to as "Grave Concerns" in regard to how the Tribunal might determine his request. I do not propose to address those matters. He also expressed what he referred to as "Grave Concerns" in regard to alleged conduct by the Respondent. He stated in part 9 of his submissions:
9b. Grave Concerns: The Respondent
The Applicant has absolutely no confidence in the integrity of the Respondent.
The Respondent is alleged to be:
i. complicit in the exploitation of NSW State Schools for its own interests
ii. complicit in the exploitation of NSW State Schools for another agencies interests
iii. complicit in the exploitation of NSW State Schools by commercial interests
iv. (as revealed in the DFS GIPA#13 documentation File No.140273)
v. complicit in allowing it's staff subject to serious misconduct complaints to block formal GIPA applications
vi. Misleading the Information Commissioner (also possibly ICAC)
The Applicant also cites the complaints of breaches of codes of conduct, public interest & other regulations which the Respondent & it's representatives are compelled & obliged to abide by.
The Applicant is of the opinion that the Respondent has compromised the integrity of any decisions made for and in association with the Applicant's GIPA applications
As I have noted above, it is clear from the terms of section 112 that any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally. In my opinion, the Applicant's allegations in regard to agency are not relevant to the issue of whether or not a referral under section 112 should be made.
The Applicant made a number of allegations in regard to Ms Bailey. He stated:
"…The Applicant will assert that the Respondent's / Ms Bailey's actions cannot be disassociated from the GIPA applications
DETAILS: The BLOCKING OF UNSOLICITED EMAILS BY THE RESPONDENT
- UNSOLICITED emails requesting goods & services
- sent voluntarily from NSW State Schools customers of the Applicant
which PREJUDICES THE APPLICANT'S LEGITIMATE BUSINESS & COMMERCIAL INTERESTS
occurred during the period of the Applicant's GIPA enquiries AND IS STILL OCCURRING.
i. Ms Bailey is clearly a participant in the Applicant's GIPA enquiries,
ii. Ms Bailey has a "stake" in the release of the information sought.
Document: Cease & Desist Notice to Michele Bruniges May 3, 2013
The Respondent clearly condones Ms Bailey's misconduct against the Applicant at the highest levels (no response from Ms Bruniges)
The Tribunal cannot underestimate the seriousness of this factor.
The Applicant will repeat & assert that
- Ms Bailey's activities are clearly not: "open, accountable, fair & effective"
- Ms Bailey has breached the Code of Conduct and other guidelines, etc
FURTHERMORE:
- Ms Bailey benefits from the redacted information
- Ms Bailey and her depart. are the clear beneficiaries of the blocking of the Applicant's complaints
- Ms Bailey is clearly influential in the Department:
The Applicant cites Ms Bailey's ability to block the Applicant's emails to the WHOLE OF DEC It is not unreasonable to assume Ms Bailey can influence any section of DEC including the IA UNIT. Especially in view of her alleged Abuse of Power (alleged to be Criminal Conduct)
Ms Bailey and her Procurement department:
- DEC Procurement were accessories in the Workplace Supplies Tender maladministration
- DEC Procurement is alleged to have attempted to fix Tender DETPR-35-11 for an incumbent supplier of the Workplace Supplies Tender
- The head of DEC Procurement is blocking legitimate business between the Applicant & NSW State School customers
- The Applicant is a competitor to DEC Procurement for the supply of scientific products
- DEC Procurement makes money from its tendering activities
- DEC Procurement is alleged to have acted dishonestly in advice given to NSW State Schools regarding compulsory purchasing of products from tenders
- The former head of DEC Procurement (Ms Bailey's colleague) blocked a GIPA application
(Re Notice of Decision date April 16, 2012 GIPA-12-021) seeking info, relating to DEC procurement
- GIPA-12-021 NoD "internally reviewed" & re-affirmed by Ms Bailey
The Applicant questions the appropriateness of the Respondent to allow senior staff members with "stakes"/specific interests in the GIPA application material to be associated with its invalidation."
I note the Applicant's allegations with respect to Ms Bailey. With the exception of the allegation that Ms Bailey "internally reviewed" & re-affirmed GIPA-12-021, the issues that the Applicant has raised do not involve the exercise of 'a function conferred on the officer by or under' the GIPA Act. It is therefore not conduct that could be considered in relation to a request for a referral under section 112.
GIPA-12-021 is not the subject of any of these applications to the Tribunal. In my view it cannot be taken into account for the purposes of this request for a referral under section 112.
[11]
Allegations in relation to 1410331/13-252
The Applicant's allegations in relation to 1410331/13-252 are contained at Part 10.a of his submissions. That part of the submissions itemises sections of the Respondent's determination of access application 13-252. He appears to be challenging that determination. He stated:
"The Applicant will assert that
- the Respondent has spending the stated 8-9 hours redacting information from documentation received from the Applicant
- the Respondent redacting information identifying the Applicant's customers (NSW Schools) is an act of dishonesty honestly and clearly lacking in good faith
There is no reasonable purpose for the Respondent to undertake these redactions nor CHARGE the Applicant redaction of this information
c. The Applicant will assert that this action is contrary to Sect. 60 and in itself an:
(a) unreasonable and substantial diversion of the agency's resources,
d. Besides breaches of the Respondent's Code of Conduct, the Applicant asserts that the Respondent has breached the Ombudsman's guidlines:
...
The Applicant asserts that the Respondent has an Improper or Ulterior motive
- to cause the Applicant a detriment
- over servicing / overcharging denying the Applicant the lowest reasonable cost access to requested government information
…
The Applicant will assert that the extra processing charges are:
- Unwarranted, unreasonable & without merit (there is no overriding considerations against disclosure especially if the Applicant provided the Respondent with this information)
- clearly a waste of the Respondent's resources Particularly in the context that:
a. there is NO REQUIREMENT for the Respondent to charge the Applicant for a process that is clearly without purpose (other than to impose a detriment on the Applicant?)
b. the Applicant is seeking information relating to the Respondent's alleged IMPROPER CONDUCT"
In relation to Mr Riordan he wrote:
The Respondent conferred on Mr Riordan the task of determining the Notice of Decision for File. 1410331 (GIPA 13-252)
1. Mr Riordan was & is aware of the Applicant's complaints
"I am aware that Mr Peter Zonnevylle has made many complaints over a two year period about alleged corrupt conduct by senior officers of the Department, particular, officers working in the Procurement Solutions Directorate.."
" He sends fascimilie messages on a regular basis alleging misconduct"
Page 6 of 9 Notice of Decision
2. Mr Riordan has reviewed the information contained in the Applicants GIPA 13-252application:
"On my examination of the records relevant to your access application." Page 6 of 9
i. Mr Riordan knew that the Applicant incorporates commercial entities
ii. Mr Riordan was aware that emails sent voluntarily from NSW State Schools to the Applicant had been blocked.
iii. Mr Riordan is familiar with Sect.14 (4) of the GIPA Act
…
iv. Mr Riordan would be aware that the blocked emails from NSW State Schools, which he reviewed in the procedure of producing the GIPA 13-252 Notice of Decision included product enquiries, were likely to have included:
a. Product enquiries sent to the Applicant
b. Orders placed by NSW State Schools to the Applicant
c. Product / Technical support requests from NSW State Schools to the Applicant
v. Consequently Mr Riordan was aware of the detriment being caused to the Applicant
3. According to the obligations (but not limited to) in the previous page
Good Conduct and Administrative Practice
Mr Riordan was obliged to report the Abuse of Power / Misconduct to the appropriate body.
i. Mr Riordan failed in his duty.
ii. Mr Riordan breached public trust & public interest determinations
iii. Clearly this is a lack of good faith in the function conferred on him by the GIPA Act.
iv. Clearly this is a lack of good faith towards the Applicant
The Applicant will assert that Mr Riordan is complicit in this misconduct / alleged criminal conduct
4. The Applicant has previously alleged that Mr Riordan has made false & misleading statements in the GIPA 13-252 Notice of Decision (which is alleged to have resulted in false& misleading statements made by the Information Commissioner in her review)
Furthermore:
5. Mr Riordan, Deputy Director General of DEC (DEC the Respondent) has allowed this Misconduct / Abuse of Power to continue.
6. Mr Riordan stated in the GIPA 13-252 Notice of Decision (page 5 of 9):
"Access refused to names of some staff members
The information captured by your application contains the names of a large number of staff members. The names of the senior officers who made various decisions about blocking or filtering email addresses mentioned at point 4 of your application are released under this decision".
In the Statement of Joanne Bailey, Ms Bailey claims to be the sole person responsible authorizing the blocking the Applicant email addresses.
Mr Riordan has indicated that there are more than one person.
Mr Riordan also states:
"However I have decided to refuse access to the names of other staff members who were not involved in those decisions"
Clearly this includes the redactions of names for the emails sent voluntarily from NSW State Schools to the Applicant.
This has not been disputed by the Respondent
The Applicant will assert that the intent of Mr Riordan is clear.
The Respondent is steadfast in ensuring a detriment is caused to the Applicant
7. Mr Riordan's failure to execute his obligations regarding the Abuse of Power by the Respondent clearly provides a benefit to Ms Bailey
i. Ms Bailey is being protected by the Respondent
ii. Ms Bailey's "reputation" is preserved (despite her abuse of power)
iii. Ms Bailey's department, Procurement Directorate gains from reduced competition through alleged criminal conduct
8. The Applicant will also assert that Mr Riordan's knowledge of the Abuse of Power /detriment unjustly caused to the Applicant, fulfils the Special Public Benefit evidence requirements to justify the Applicant's request for a reduction in the processing charges;
Mr Riordan / the Respondent clearly exhibits a conflict of interest.
Disregarding evidence supporting the allegations of Abuse of Power / Misconduct / Criminal Conduct which is clearly in the public interest.
The Applicant asserts that the Tribunal must uphold a Sect. 112 Improper Conduct complaint against Mr Peter Riordan, Deputy Director General of DEC.
Mr Riordan has clearly had a function conferred on him by or under the GIPA Act and acted with a lack of good faith
Riordan's objectivity related to Public Interest Determinations cannot be trusted.lt is clearly impaired by Riordan's/the Respondent's alleged serious misconduct/criminal conduct
The Applicant has made similar allegations in regard to Ms Bailey, Mr Johnson, the IT Manager, Ms Pendergast and Ms Stathis.
The Tribunal has ruled on all the issues raised in regard to the Respondent's determination and affirmed the Respondent's decision. It appears that the Applicant is dissatisfied with the Tribunal's decision and is seeking to revisit this issue. The Applicant's material in relation to 1410331/13-252 is essentially submissions as to why the Tribunal incorrectly decided the matter. These assertions are inappropriately made, given the absence of any attempt by the Applicant to appeal that decision. In the circumstances I do not consider that there is any basis for finding that these officers failed to act in good faith.
The Applicant alleges that Ms Pendergast failed to act in good faith by asserting that the processing charge in 1410331/13-252 remained outstanding. At the time Ms Pendergast made that comment, it was an accurate statement. I agree with the Respondent that this does not demonstrate lack of good faith.
Issues concerning the refusal to deal with an informal request and the blocking of the Applicant's emails do not relate to matters before the Tribunal and so have not arisen "in the course of administrative review". Therefore, the Tribunal lacks the jurisdiction to deal with these matters. In regard to the wider allegations against officers of the Respondent, it is clear that the conduct does not concern the exercise of a function under the GIPA Act. The fact that an officer may have a delegation to perform a function under the GIPA Act does not mean that every function exercised by that officer is subject to a referral under section 112 of the GIPA Act. In the circumstances of this matter I am not satisfied that any of the alleged conduct of Mr Riordan, Ms Bailey, Mr Johnson, the IT Manager, Ms Pendergast or Ms Stathis falls within the scope of section 112.
[12]
Allegations in relation to 1410329/14-046
The Applicant's allegations in relation to 1410329/14-046 are contained at Part 10.b of his submissions. This part of the submissions itemises sections of the Respondent's determination of access application 14-046. Again, the Applicant appears to be challenging the determination. In regard to Ms Pendergast he wrote:
"The Respondent's representative Ms Pendergast is required by Sect.16 to provide advice & assistance for the purpose to access information.
- Ms Pendergast was involved with the processing of GIPA-13-252 (File No.0140331)
- Ms Pendergast was aware that Peter Zonnevylle was authorized to correspond on matters of GIPA-13-252
- Ms Pendergast was aware by virtue of the associated emails that GIPA-14-046 and GIPA-13-252 were from associated parties
- Ms Pendergast is alleged that she:
- Did not provide reasonable advice & assistance to access government information.
In particular Sections 2 & 3 of the Applicant's GIPA application"
It seems that the Applicant's allegation is that Ms Pendergast failed to provide him with appropriate assistance before refusing to deal with the access application, thereby falling short of the obligations under section 16 of the GIPA Act. Section 16 provides:
16 Agencies to provide advice and assistance
(1) An agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available.
(2) An agency must provide the following specific advice and assistance to a person who requests access to government information:
(a) advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed,
(b) advice on how to make an access application for the information if the information is not publicly available from the agency but appears likely to be held by the agency,
(c) if the information appears unlikely to be held by the agency but appears likely to relate to the functions of some other agency, the contact details of the other agency,
(d) the contact details of the Information Commissioner and advice on the availability of and how to access any information published by the Information Commissioner that it appears maybe relevant to the person's request.
(3) An agency is only required to provide advice and assistance under this section that it would be reasonable to expect the agency to provide.
The material before me indicates that Ms Pendergast endeavored to assist the Applicant to make a valid request. By letter dated 19 March 2014 she wrote to the Applicant and suggested a form of amendments and gave him until 16 April 2014 to respond.
Correspondence from the Applicant dated 21 March 2014 did not narrow the scope of the request to remove an overlap with access application 13-252. The Applicant had not responded to narrow the scope of the request to remove that overlap at the time of the determination on 23 April 2014. His response dated 24 April 2014 was therefore not taken into account in the determination.
Ms Pendergast again wrote to the Applicant by letter dated 6 May 2014. In that letter she responded to some of his concerns and provided further explanation for the determination. In that letter she explained that parts 1 - 4 and 6 of access application 14-046 were fundamentally the same as access application 13-252. Section 60(1)(b) of the GIPA Act would continue to apply unless any amendment of the request removed any overlap between the two access applications. Further, section 60(1)(a) of the GIPA Act would apply because of the overlap and the work load involved in processing access application 13-252.
In my view, Ms Pendergast has satisfied the requirements of section 16 of the GIPA Act. Therefore, there is no basis for finding that she failed to act in good faith in that regard.
[13]
Allegations in relation to 1410330/14-107
The Applicant's allegations in relation to 1410330/14-107 are contained at Part 10.c of his submissions. This part of the submissions itemises sections of the Respondent's determination of the access application 14-107. Again, he appears to be challenging the determination and again he appears to be alleging the Respondent's failure to satisfy the requirements of section 16 of the GIPA Act.
I have considered the documentation showing the exchanges between the Applicant and the Respondent in regard to access application 14-107. Again I am satisfied that the requirements of section 16 of the GIPA Act have been met. In my view, there is no basis for finding that Ms Pendergast or any other officer of the Respondent failed to act in good faith in that regard.
However, even if I am wrong on this point and the officers of the Respondent could have done more to assist the Applicant, this does not of itself show that the officer failed to act in good faith. At most it demonstrates an error or misjudgement on the part of the relevant officers.
For the same reason, I do not agree with the Applicant that making a determination that processing an access application would amount to a substantial and unreasonable diversion of resources or otherwise refusing to meet the Applicant's request shows that the officer failed to act in good faith. These decisions, without more, do not demonstrate a lack of good faith.
I agree with the Respondent that an officer employed in an agency is entitled to form the view that consideration of an access application would amount to an unreasonable diversion of resources or the officer is entitled to form the view that, because a decision had already been made in respect of that material, the agency's resources would better be spent elsewhere. The officer may well be wrong, which is why there is a right for this Tribunal to review the decision. Even were that decision to be set aside by this Tribunal, it would not prove a lack of good faith so long as the officer was endeavouring to give effect to the purposes of the Act as he or she understood them.
In regard to the allegations against officers of the Respondent who were in fact performing a function under the GIPA Act, the Applicant must show that the officer had failed to demonstrate an honest and conscientious approach to the functions conferred under the GIPA Act. He has not done so. In the circumstances, no action should be taken under section 112 of the GIPA Act in relation to any of those officers.
For completeness, I note that I have not considered those areas of concern to the Applicant where the Tribunal has no jurisdiction. I therefore am unable to comment on the reasonableness of the Applicant's concerns. I have merely found that this Tribunal is not the appropriate forum to deal with those issues.
[14]
Conclusion
For the reasons given, the Respondent's decisions with respect of proceedings 1410329 and 1410330 should be affirmed. No action should be taken under section 112.
[15]
Orders
The Respondent's decision in matter No. 141329 is affirmed.
The Respondent's decision in matter No. 141330 is affirmed.
The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.
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
[16]
Amendments
11 March 2016 - File number amended
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: 11 March 2016