Zonnevylle v Department of Justice

Statutory Framework

1. The GIPA Act was introduced in 2009 to facilitate public access to government information.
2. Section 3 provides that the object and intent of the GIPA Act is as follows: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by-- (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament-- (a) that this Act be interpreted and applied so as to further the object of this Act, and (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.
3. The objects are reflected in the provisions of the GIPA Act. Part 2 sets out the General Principles for Open Government Information. Notably, s 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9 provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
4. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that nothing in the GIPA Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of public information. Examples of public interest considerations in favour of disclosure are set out in the Note to s 12 as follows: Note--:The following are examples of public interest considerations in favour of disclosure of information-- (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
5. Section 13 sets out how the public interest test must be assessed and provides that there is an "overriding public interest against disclosure" if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 14 of the GIPA Act identifies the public interest considerations against disclosure, which must fall within the specified grounds. Some grounds are conclusive, and the other grounds must fall within the description of the seven categories of documents enumerated in the Table to s 14(2). Relevant to the matters raised in this case is the claim that certain information that may be responsive to the access application is likely to include documents subject to legal professional privilege (refer s 14(1) and Schedule 1 of the GIPA Act) or that the information may include personal information of another party, which may involve considerations under clause 3(a) of the Table to s 14(2) of the GIPA Act.
6. Section 15 of the GIPA Act sets out the principles that apply to agencies and, relevantly, to the Tribunal, when making a determination as to whether there is an overriding public interest against disclosure of government information. Relevantly, agencies must exercise their functions so as to promote the object of the GIPA Act.
7. Under s 16, agencies are required to provide advice and assistance to an access applicant. Mr Zonnevylle has raised concerns about whether the respondent has discharged this obligation, and it is therefore apt to extract this provision in its entirety. 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 may be 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.
8. Part 3 deals with Open Access Information, namely the information that agencies are required to make publicly available.
9. Part 4 deals with Access Applications and Division 3 contains the provisions relating to the process for dealing with access applications. Section 53 of the GIPA Act sets out the obligations of an agency and the searches it must undertake once a request for information is received. An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The searches must be conducted using the most efficient means reasonably available to the agency and includes using any resources reasonably available to facilitate the retrieval of information stored electronically. Section 53(5) provides that an agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
10. Section 54 provides that an agency must take such steps, if any, as are reasonably practicable to consult with a person before providing access to the government information if the information is of a kind that requires consultation under the section, for instance, where the information includes personal information about a person (s 54(2)(a) of the GIPA Act). Section 55 states that an agency is entitled to take into account personal factors of the application, both in favour and against disclosure.
11. Division 4 includes the provisions relating to deciding access applications.
12. Section 57(1) provides that an agency must decide an access application and give notice of the decision within 20 working days after it receives the application. This period can be extended in certain circumstances: ss 57(2)-(6).
13. Section 58(1) provides that applications for review are to be decided by the agency: 1. deciding to provide access to the government information, or 2. deciding that the information is not held by the agency, or 3. deciding that the information is already available to the applicant (see s 59), or 4. deciding to refuse the application because there is an overriding public interest against disclosure of the information, or 5. deciding to refuse to deal with the application (see s 60), or 6. deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
14. Section 58(2) provides that more than one decision can be made in respect of a particular access application.
15. Section 60, which is extracted in full given it is central, provides as follows: 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, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 , (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note : See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order, (e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is-- (i) a party to current proceedings before a court, and (ii) able to apply to that court for the information. (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. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
16. Part 5 of the GIPA Act deals with the review of decisions. It provides for internal review, review by the Information Commissioner and external review by the Tribunal.
17. Section 80 sets out the decisions of an agency which are "reviewable decisions" for the purposes of Part 5 of the GIPA Act. A decision to refuse to deal with an access application is reviewable (s 80(c)).
18. Section 100 provides that a person who is aggrieved by a reviewable decision may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 63 of the ADR Act provides that the Tribunal must make the "correct and preferable" decision based on the material before it at the time of the decision. In determining the application for review, the Tribunal may decide to affirm or vary the decision or set aside the decision and make a decision in substitution or set aside the decision and remit the matter for reconsideration by the administrator, in this case the respondent, in accordance with any directions or recommendations of the Tribunal. The onus is on the agency to justify access decisions made under the GIPA Act (s 105).
19. Section 109 provides that the Tribunal may refuse to review or deal further with a review of a decision of an agency if the Tribunal is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance. Section 110 enables the Tribunal to order that a person is not permitted to make an access application without first obtaining the approval of the Tribunal if the Tribunal is satisfied about certain matters set out in the section. This is known as a restraining order. This is relevant because the Tribunal made a restraining order in relation to Mr Zonnevylle in Department of Education v Zonnevylle [2020] NSWCATAD 96. Some of the information requested by Mr Zonnevylle falls within the periods when these issues were being considered and it is therefore submitted that there is potentially a large volume of documentation that may respond to the request.
20. The Tribunal may refer any matter to the Information Commissioner that it considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally (s 111). Under s 112, the Tribunal may, on the completion of an administrative review, bring to the attention of the relevant Minister with the responsibility for the agency improper conduct where the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred on the officer or under the GIPA Act.
21. Part 6 sets out the protections and offences under the GIPA Act. Section 116 provides that an officer of an agency must not make a reviewable decision in relation to an access application that the officer knows to be contrary to requirements of the GIPA Act. Section 117 provides that it is an offence for an officer of an agency to direct unlawful actions in respect of an access application. Section 118 provides that it is an offence to improperly influence a decision on an access application. Section 120 provides the person who destroys, conceals or alters any record of government information for the purpose of preventing disclosure as authorised is guilty of an offence.
22. Section 126 sets out the requirements for notices under the GIPA Act and provides that notices must be in writing, the notice must include the date of the decision and a statement that gives details of any right of review provided under the Act and must not disclose any information for which there is an overriding public interest against disclosure. Relevant to this case, because Mr Zonnevylle takes issue with the approach adopted by the respondent, the agency must include the contact details of an officer of the agency to whom enquiries can be directed in connection with the decision.
23. Section 128 provides that proceedings for an offence under the act or regulations may be dealt with summarily before the Local Court and that they may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.
24. There is no dispute that Mr Zonnevylle did not make an application for his personal information under the Privacy and Personal Information Protection Act 1998 (NSW) PIPP Act. However, because Mr Zonnevylle makes a submission about this legislation and advice that he says should have been provided to him, it is relevant to set out the details of an alternative application that may have been made by Mr Zonnevylle to get access to his information. Section 14 of the PPIP Act provides that a public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. Unlike s 60(1)(a) of the GIPA Act, there is no limit on access to an individual's personal information.

Decision under review

1. Mr Zonnevylle made an application to access information from the respondent on 6 January 2020. The access request was assessed by a delegate of the respondent. Access applications are processed and managed by the Open Government Information Privacy unit (OGIP) of the respondent. In this case, Mr Zonnevylle's application was processed by an officer who was identified as "Chris King". It is apparent from the correspondence from Lida Kaban (from the Office of General Counsel) that the officer who processed the application was not "Chris King" and that this was a pseudonym used for the officer who dealt with the application. This correspondence, and the reason for the approach taken by OGIP, is set out later in these reasons.
2. By letter dated 23 January 2020, Mr Zonnevylle was invited to narrow the scope of the documents requested. There was correspondence between Mr Zonnevylle and the respondent between February and April 2020 which did not resolve the dispute about the nature and scope of the request for access to information and by decision dated 29 May 2020, the delegate refused the application.
3. In undertaking administrative review, the role of the Tribunal is to make the correct and preferable decision based on the material available at the time of the decision. The Tribunal is not bound by any findings of the original decision-maker, but it is useful to consider the reasons for the decision under review because it provides a convenient outline of the material available at the time of the original decision and the issues in dispute.
4. The decision details the information requested by Mr Zonnevylle and records 13 items that have been requested, a number of which have additional but related items listed within each category. The decision outlines the various communications between the respondent and Mr Zonnevylle after the application was received but before the refusal. These communications are relevant given s 60(4) which provides that an agency must give an applicant a reasonable opportunity to amend the application before refusing to deal with the application because dealing with it would require an unreasonable and substantial diversion of the agency's resources. In summary those communications were as follows: 1. On 23 January 2020, a delegate of the respondent wrote to Mr Zonnevylle informing him that the scope of his application in present terms would require an unreasonable and substantial diversion of the respondent's resources because a preliminary estimate indicated it would take approximately 55 hours to conduct searches for information. Mr Zonnevylle was invited to consider narrowing the terms of his application. 2. By letter dated 8 February 2020, Mr Zonnevylle requested additional information so he could make an informed decision to re-scope the terms of his application. 3. By letter emailed on 25 February 2020, incorrectly dated 23 January 2020, the respondent provided Mr Zonnevylle with information in response to various queries outlined in his letter dated 8 February 2020. 4. Mr Zonnevylle emailed the respondent seeking a response to a number of questions, to which the delegate provided a response on 11 March 2020. 5. By emails dated 12 and 27 March 2020, Mr Zonnevylle emailed the respondent requesting, amongst other things, details of the delegate's employee identify identification number. Mr Zonnevylle made an allegation that the respondent was involved in systemic conduct and there was a failure to act in good faith. After these emails, the delegate requested that all future communications be restricted to Australia Post delivery. 6. On 24 April 2020, the delegate wrote to Mr Zonnevylle suggesting that he may wish to consider limiting the terms of his application such that the combined total search time is no more than 15 hours. He was requested to provide any amended terms by 28 May 2020. Mr Zonnevylle did not provide any amended proposal.
5. Against the background as described in the decision, the delegate stated that she had decided to refuse to deal with the application under s 58(1)(e) of the GIPA Act on the basis that to do so would require a substantial and unreasonable diversion of the respondent's resources. It was noted that under the GIPA Act, an agency must give the applicant of reasonable opportunity to amend the application before refusing to deal with the application on the grounds that it would require an unreasonable and substantial diversion of the agency's resources. The delegate noted that she had regard to the numerous letters attempting to assist Mr Zonnevylle to refine the terms of his application and the length of time that had elapsed from the date he was informed that his application in its present terms would require an unreasonable diversion of the respondent's resources. The delegate stated that she was of the view that Mr Zonnevylle had been provided with several reasonable opportunities to propose amended terms.
6. The decision states as follows: It is estimated that it will take approximately 55 hours to conduct reasonable searches for the information you have requested. This does not include the time it will take to review the information located in response to your access application and make a decision with respect to access. It is not possible to provide any accurate estimate for the time it will take to review the information responsive to your request without finalising the searches to know the volume of material to be considered. At a minimum, the time required to process your application has been estimated to be 63 hours and 30 minutes as set out in the table below.
7. The decision includes a table with a description of the work undertaken and the time spent, and the further work estimated to be spent together with an estimate of time. The table records that the time spent to date of the decision was eight hours and 30 minutes, which comprised the time taken to consider the terms of the application to determine the relevant business units likely to hold the requested information and to conduct preliminary inquiries and correspondence to assist the applicant. The additional tasks to be carried out were estimated at 19 hours to conduct searches for information in response to items 1, 4, 6, 8, 9, 10 and 13 and 36 hours to conduct searches for information in response to items 2, 3, 5, 7, 11 and 12. There was no estimate given to review the information that was responsive to the request and this was said to be "unknown determinate on the volume of material located". As such, it is apparent from the information contained in this table that the respondent estimated the time it would take to respond to the request would be more than 63 hours and 30 minutes.
8. The delegate noted that she had taken into account the considerations set out in s 60(3A) of the GIPA Act.
9. It was noted that there would be a substantial use of resources in dealing with the application as a consequence of the searches that needed to be conducted. It was estimated to that it would take approximately 55 hours to conduct the searches and this did not include the time required to review the material in response to the request, consider all relevant public interest considerations (including those against disclosure) and to draft the notice of decision in response to the application.
10. Specifically, it was noted that Mr Zonnevylle was seeking information in relation to an incident on 21 May 2019 when he arranged for a large box of garbage to be couriered to an officer containing a single piece of standard size correspondence. The letter was said to be buried amongst the rubbish in a manner that required a staff member to sift through the rubbish causing the staff member to feel unsafe. The decision notes that this incident was reported to the NSW Police Force. It is also noted that the information requested related to whether staff sought counselling or took sick leave arising from this incident. This is personal information or personal health information which would need to be identified and redacted and the respondent would also need to consult third parties and have regard to public interest considerations both for and against disclosure in relation to this information.
11. The delegate further noted the concept of proportionality in balancing an applicant's right to access information and the agency's ability to procure it in a timely and cost-effective manner. It was noted that, while the respondent has a dedicated unit to consider and decide requests for information made under the GIPA Act, the volume of applications received by the respondent is significant. According to the annual reports for the former Department of Justice and Family and Community Services, these two departments received approximately 1800 formal access applications in the 2018/2019 financial year. This dedicated unit is also responsible for managing approximately 4500 subpoenas and statutory orders issued to the Department as well as handling applications under the national scheme for redress of institutional child sexual abuse, privacy complaints, privacy internal reviews and access and amended applications. According to the delegate, the scarce resources of this unit are unable to be diverted to respond to a single access application where the size of the application is such that it will cause a substantial diversion of its resources, and this would be inherently unfair to other access applicants whose applications may be delayed due to an unreasonable diversion.
12. Specifically, the delegate notes that the estimate in relation to the search of 55 hours equates to a single officer, dedicated one and a half weeks of full-time employment to conduct searches for information in response to the application. A standard caseload for an officer is conservatively around 18 access applications as well as managing numerous subpoenas. As such, deciding the access application in its current terms would divert significant resources from processing other applications received by the Department, which was relevant having regard to the Department's obligation to decide access applications within 20 working days of receipt under s 57 of the GIPA Act.
13. The delegate noted that she was required to consider the matters referred to in s 60(3B) but she was satisfied that the considerations under s 60(3A) outweighed the considerations under s 60(3B) of the GIPA Act. Notably, she found that the majority of the information sought by Mr Zonnevylle was not his personal information. She also found that while some of the information requested could reasonably be expected to inform the public about the expenditure of public funds, the demonstrable importance of the information was not apparent from the terms of the request. The delegate referred to the issue in relation to the large box of rubbish and stated that it would appear Mr Zonnevylle was using the process as a means to cause further harassment and create further anxiety to respondent staff. The delegate also noted that "most of the information" is likely to contain personal information and health information of third parties and she therefore apportioned a minimal level of weight to the factors in s 60(3B) of the GIPA Act. In contrast, she apportioned significant weight to the factors in s 60(3A), finding that there was a strong likelihood that in dealing with the application the Department would be prevented from giving other members of the public prompt access to government information.

Proceedings relating to previous requests for access to information by Mr Zonnevylle

1. Mr Zonnevylle has made numerous applications for access to government information. Relevant decisions, because they consider a number of the legal issues raised by Mr Zonnevylle in these proceedings, are: Zonnevylle v Department of Education [2017] NSWCATAD 101 and Zonnevylle v Department of Education [2017] NSWCATAD 214 (both decisions by Senior Member Dinnen relating to different GIPA Act access application decisions) Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAD 108, Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274 and Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 (applications for summary dismissal of a GIPA Act access application, considered by the Appeal Panel then by the NSW Court of Appeal) and finally, Department of Education v Zonnevylle [2020] NSWCATAD 96 (being a decision under s 110 of the GIPA Act that Mr Zonnevylle is not entitled to make an access application under the GIPA Act to the agencies referred to in the order).
2. In the first 2017 Zonnevylle proceedings involving the Department of Education (finalised in March 2017 relating to file 1510696) Mr Zonnevylle raised concerns about access application decisions made by the Department of Education in 2016. He asserted, amongst other things, that the searches conducted for various items requested were not reasonable and he sought access to information that was rejected by the Department of Education. It is noted in the decision that much of Mr Zonnevylle's extensive written submissions were concerned with his request for the Tribunal to refer the conduct of the Department of Education to the Minister under s 112 and to make findings that the Department of Education had committed offences pursuant to sections 116, 117, 118 and 120 of the GIPA Act. Senior Member Dinnen observed that proceedings for breaches of the offence provisions of the GIPA Act were governed by s 128. She therefore declined to make any orders or consider those offences, finding that the Local Court is the appropriate forum for dealing with any charge for an offence and that the Tribunal has no jurisdiction to deal with these provisions. She also set out a summary of the previous Tribunal cases in relation to s 112 of the GIPA Act and found at [91] as follows: …Those cases provide authority for the following guidance in applying section 112: (1) 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. (2) Any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally; (3) 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". (4) The test in relation to "good faith" is predominantly subjective; however there are some objective components as well: (a) What is required for something to be done or omitted in good faith may vary from one case to the next. (b) Objective components may include: (i) consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. (ii) serious and careful consideration must be given to the application; there must be more than a cursory review. (5) 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.
3. Senior Member Dinnen found that there was no evidence that any of the individuals who had considered Mr Zonnevylle's access application had failed to exercise a function conferred on them under the GIPA Act in good faith. She also declined to make a referral to the Minister.
4. In the second 2017 Zonnevylle proceedings involving the Department of Education (finalised in June 2017 relating to file 2016/00378353), Mr Zonnevylle made similar allegations of misconduct against Department officers. In this case, the Department had refused to deal with the access application on the grounds that it would require an unreasonable and substantial diversion of the agency's resources. Mr Zonnevylle requested that the matter be referred to the Minister under s 112 and again requested that the Tribunal find that the Department had committed various offences under the GIPA Act. The Tribunal was not satisfied that there was evidence that an officer of the respondent had failed to exercise a function conferred under the GIPA Act in good faith and further noted that the Tribunal had no jurisdiction to make orders in relation to the offences under the GIPA Act, consistent with her previous decision.
5. I agree with the principles set out by Senior Member Dinnen in her 2017 decisions, which are relevant to Mr Zonnevylle's current application because he makes similar claims.
6. In the 2019 proceedings, Zonnevylle v Minister for Education and Early Childhood Learning, Mr Zonnevylle had made an application for access to government information relating to a dispute he had with government and certain government agencies. In his application, Mr Zonnevylle referred to breaches of the GIPA Act, including alleged offences under the GIPA Act, and requested that certain conduct of the officers be referred under s 112. The Minister submitted that the predominant purpose for Mr Zonnevylle commencing and maintaining the proceedings was an improper collateral purpose. Senior Member Ludlow found at [70] that Mr Zonnevylle's submissions demonstrated an attention to continue to agitate for findings of a lack of good faith, illegality and misconduct on the part of the Minister and to seek review of decisions which are outside the scope of his application. It was held that, despite the possibility Mr Zonnevylle may have a legitimate cause of action in seeking a review of the reasonableness of the searches, the Tribunal was satisfied that the proceedings were a vehicle for the dominant purpose of attempting to relitigate allegations of misconduct, illegality and lack of good faith. He was therefore satisfied that the applications were vexatious because they were being maintained for a collateral purpose at [72].
7. Mr Zonnevylle appealed this decision to the Appeal Panel, which upheld his appeal because it was not satisfied that this was a case where Mr Zonnevylle was pursuing a collateral purpose, as opposed to persisting in making claims which are bad in law.
8. The Minister appealed this decision and the Court of Appeal (per McCallum JA; Macfarlan JA and Lemming JA agreeing) allowed the appeal, holding that Mr Zonnevylle's persistence in making claims that were bad at law, and had been held to be so by the Tribunal, did not fall within the collateral purpose principle. The Court held that it was a well-established principle that an attempt to relitigate a matter that had already been determined may amount to an abuse of process (at [44] - [48]). The Court also found that the Appeal Panel erred in holding that the history of Mr Zonnevylle's prior litigation was not logically probative in determining whether the review proceedings were vexatious (at [50] - [53]).
9. The respondent made an application in these proceedings (referred to below under the heading "Procedural issues") for summary dismissal under s 55 of the CAT Act. The application was refused and, as a consequence, Mr Zonnevylle's application for review remains before this Tribunal for determination.
10. The relevance of these latter cases is that the Court of Appeal proceeded on the basis that pursuing claims about misconduct and findings about criminal offences are bad at law. Having regard to the Court of Appeal decision and the previous Tribunal decisions about s 112 and the offence provisions of the GIPA Act, the respondent submits that it does not propose to respond to the various issues raised in relation to those matters in respect of which the Tribunal has no jurisdiction. It is also apparent that previous Tribunals, the Appeal Panel and now the Court of Appeal recognises that claims made for the Tribunal to make findings about criminal offences are outside the jurisdiction of the Tribunal and, in this respect, these claims made by Mr Zonnevylle are bad at law.
11. In the 2020 Department of Education v Zonnevylle proceedings, the Tribunal found that Mr Zonnevylle had commenced "a pattern of conduct, which has escalated overtime, of alleging corruption or misconduct by officers responsible for dealing with his GIPA applications" at [102]. The Tribunal also found that, in respect of one application, Mr Zonnevylle had sent harassing emails on a daily basis to officers, including those processing his application: at [103]. After examining seven volumes of documents and multiple GIPA applications made by Mr Zonnevylle, the Tribunal was satisfied that Mr Zonnevylle, by his conduct, had demonstrated that if he was permitted to continue to make applications under the GIPA Act without the control of a restraining order, he will continue to impose costs upon respondent agencies which are not reasonable and this would prejudice the achievement of the objective of the GIPA Act by imposing, at a systemic level, unnecessary burdens, including costs, on respondent agencies: at [107].
12. The Tribunal did not consider the current application and there is no dispute that the access application which is the subject of this review was made prior to the order made by the Tribunal in the 2020 proceedings. This decision is nonetheless instructive because the respondent makes a submission that Mr Zonnevylle's conduct is a matter that should be considered under s 60(3A) of the GIPA Act. I deal with this submission later in my reasons.

Submissions of the parties

1. In his application for review, Mr Zonnevylle raised a number of grounds, which can be summarised as follows: 1. He was aggrieved by the decision of the fake "Chris King" because the public has an expectation that officers exercising functions confer on them by or under the GIPA Act to require to exercise their functions in good faith. Those officers are also required to fulfil their obligations as a government services employee, with oversight by Public Service Commission and agency codes of conduct. 2. Section 16 of the GIPA Act provides that it is mandatory for advice and assistance to be given to enable the public to access government information. An applicant has the right to ask questions relating to the processing of an application and this includes advice in relation to the interpretation and application of the GIPA Act, including questioning statements made by an officer exercising the GIPA functions. 3. A review of the correspondence between the applicant and Chris King shows that the applicant has legitimate concerns regarding misconduct and the lack of good faith being perpetrated by the fake Chris King. The correspondence demonstrates that the fake officer has systemically abused Mr Zonnevylle's GIPA Act rights and failed to provide mandatory advice and assistance. 4. There is evidence of blatant breaches of the mandatory obligations required under the GIPA Act, including s 126, which provides that an agency is required to include the contact details of an officer to whom inquiries can be directed in connection with the decision. The fake officer Chris King is not an officer of the agency as required by section 126 of the GIPA Act. 5. The decision made by Chris King is an offence under s 116 of the GIPA Act because the officer made a decision that he or she knew to be contrary to the requirements of the GIPA Act. 6. Correspondence implicates the respondent's general counsel in the alleged breach of s 116. A complaint was made to the general counsel, Ms Lida Kaban, concerning the conduct of the fake Chris King. The general counsel confirms her complicity with the fake Chris King in her correspondence and consequently exercised a function relating to the access application. Lida Kaban has also perpetrated an offence under section 117 by unlawfully directing action of the officer. 7. The failure of the fake Chris King to exercise his or her functions in good faith and provide mandatory advice and assistance to enable Mr Zonnevylle to make an informed decision to amend or re-scope his application compromises the integrity of the access application and breaches the fundamental GIPA Act rights. 8. The applicant has grave concerns regarding the integrity of the Information Commissioner because, prior to finalising the complaint against the fake Chris King, the Information Commissioner made a decision on the reviewable decision despite knowing the substantive and real effect the alleged misconduct had on the reviewable decision. The Information and Privacy Commission (IPC), under the direction of the Commissioner and an officer of the IPC, are alleged to have failed their statutory obligation to protect the public and Mr Zonnevylle from systemic multiple agency misconduct and they are alleged not to have acted in good faith. Their refusal to be open and transparent about the conduct standards used by the agency to determine officer misconduct has resulted in Mr Zonnevylle's GIPA Act applications being systemically abused by NSW Education, NSW Finance and Department of Justice officers. The Information Commissioner and the IPC in general have failed their statutory obligations of impartiality in the public interest. 9. The information that Mr Zonnevylle seeks access to relates to his allegation that Ms Jodie Cobbin, the director of OGIP, has a personal interest in the application. Mr Zonnevylle alleges that Ms Cobbin acted corruptly by misusing police resources to have NSW Police harass and intimidate Mr Zonnevylle in relation to an GIPA Act application made by Mr Zonnevylle in relation to the respondent in 2018. Mr Zonnevylle alleges that Ms Cobbin sought favour from the Chief Inspection Sydney City Area Command. As director of OGIP, Ms Cobbin has influence over application processing and has a personal stake in the information sought. Mr Zonnevylle raises issues that Ms Cobbin may in fact be the fake Chris King and if this is the case, she has perpetrated offence under s 117 of the GIPA Act.
2. Mr Zonnevylle attaches the reviewable decision to his grounds but also attaches a bundle of documents relating to complaints made him against officers of the respondent and the IPC. The documents relating to these complaints can be summarised as follows: 1. A complaint by Mr Zonnevylle to the Law Enforcement Conduct Commission regarding Ms Cobbin made on 7 January 2019. 2. A complaint that he made to the Police Commissioner regarding the conduct of Detective Chief Inspector Marcic on 8 September 2019 in response to a complaint received by NSW Police from Ms Cobbin. 3. Documents apparently provided by NSW Police in relation to a GIPA Act application. Mr Zonnevylle variously describes these documents as evidence that Ms Kaban contacted Marcic directly and that he emphatically denied making any harassing calls to the respondent. 4. The complaint made to Lida Kaban against the fake officer Chris king and her response. 5. Correspondence with the IPC seeking clarification related to a legal matter and Mr Zonnevylle's assertion that the IPC has failed to engage with matters that were of significant public interest.
3. On 17 May 2024, Mr Zonnevylle send an email to my personal email address at the Tribunal outlining his submissions. I do not review material sent directly from parties to proceedings as this is inconsistent with the practice and procedure of the Tribunal, as noted in the Tribunal's Policy 6: Communicating with the Tribunal and Members, which provides that parties, or other people involved in proceedings, should not contact, or attempt to contact, Members, or anyone associated with a Member, about proceedings face to face, by telephone or through email. The usual course is for any communications to be sent to Tribunal members by registry. At the hearing, Mr Zonnevylle raised concerns that he had sent email submissions, which I had not reviewed. As Mr Zonnevylle was not present during the hearing to hand up those submissions, I requested that the lawyer for the respondent, who was present during the hearing and had received copies of the email, to send those submissions to the registry so that they could be provided to me. I reviewed those submissions.
4. In summary, the submissions were to the following effect: 1. The decision under review made on 29 May 2020 was made by the decision maker identified as Chris King under s 60(1)(a) of the GIPA Act. The circumstances of the GIPA application are required to be addressed prior to the Tribunal considering the substantive application. Those circumstances are the statutory obligations of the Tribunal, statutory bodies and NSW government and government officers. 2. The obligations under the ADR Act under s 3 are to, amongst other things, foster an atmosphere in which administrative review by the Tribunal is viewed positively. The objects of the GIPA Act under s 3 is to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and objective. This legislation enacted by parliament for the benefit of the citizens of NSW. The objects of the Government Sector Employment Act 2013 (NSW) (GSE Act) are to, amongst other things, establish the public service as a general service within the government sector and to establish an ethical framework for the government sector comprising core values and principles that guide their implementation. Those core values are set out in Section 7 of the GSE Act and includes obligations to uphold the law and act professionally with honesty, consistency and impartiality. The GSE Act is legislation enacted by the parliament for the benefit of the citizens of NSW. 3. The GIPA Act includes a number of provisions that are relevant to the application. Section 111 of the GIPA Act provides that the Tribunal may refer to the Information Commissioner that the Tribunal considers it indicative of a systemic issue in relation to the determination of access applications by particular agency or agencies generally. Section 112 provides the Tribunal may report on improper conduct and sections 116 to 120 set out certain offences under the GIPA Act. 4. Mr Zonnevylle submitted that there were reasonable grounds for certain questions of law to be referred to the Supreme Court pursuant to s 54 of the CAT Act. Mr Zonnevylle contended that as a self-represented non legal professional it has been difficult for him to exercise his rights under the GIPA Act, and he therefore requested that certain questions be referred to the Supreme Court. Mr Zonnevylle raised what he considered to be nine questions of law relating to his rights as an access applicant. 5. Those questions were about whether Mr Zonnevylle had a reasonable right to ask questions about the officer Chris King, whether Chris King should provide search times and adequate assistance under s 16 of the GIPA Act, whether the information requested by Mr Zonnevylle was substantially personal information and whether it was deemed to be sufficiently of demonstrable importance to Mr Zonnevylle, whether Mr Zonnevylle had legitimate concerns because the respondent refused to confirm whether Ms Cobbin was exercising any function under the GIPA Act or was influencing or had oversight of any functions under the GIPA Act, whether she had a conflict of interest in the information being sought by Mr Zonnevylle, whether it would be appropriate for Chris King to have recommended that Mr Zonnevylle make a access application for information that was demonstrably important personal information and whether it would be appropriate for the Tribunal to remit the decision back to the respondent to make such a recommendation. 6. Further questions relate to Lida Kaban and whether she had statutory obligations under the GSE Act, whether she exercised a GIPA Act function when responding to Mr Zonnevylle's complaint about Chris King, whether these matters would be considered as improper conduct and whether, on the basis of probabilities, it is likely that Chris King is one of the staff in the office of general counsel or OGIP who may feel fearful and unsafe and be experiencing stress and therefore be biased against Mr Zonnevylle.
5. At the hearing, and in written submissions made by Mr Zonnevylle in support of the issue of a summons to Chris King to give evidence, Mr Zonnevylle submitted that his application sought substantially personal information which was not acknowledged as such by Chris King, the personal information relates substantially to serious accusations and statements made by Ms Jodie Cobbin in her letter to Mr Zonnevylle dated 27 May 2019, these issues are the subject of much tension and resulted in Mr Zonnevylle seeking the Tribunal review and despite a request for this information, the respondent has refused to disclose the name position and government identity number of the officer who processed his application, referred to under the pseudonym of Chris King. The fact that Chris King refused to provide the requested processing times and instead only provided search times and requested that those search times be restricted to 15 hours raised a legitimate and reasonable apprehension of a conflict of interest by Chris King on several grounds, including that Chris King could be Jodie Cobbin exercising functions when she has a conflict of interest. The issue of the summons had a clear forensic purpose as it would uncover whether Chris King and Jodie Cobbin were the same person.
6. After the first hearing, Mr Zonnevylle sent correspondence to the Tribunal providing submissions in response to the respondent's submissions and in relation to the issue is to as to whether the conduct of Chris King was relevant to the review. Mr Zonnevylle stated, as he had previously submitted, that matters relevant to the review included questions about whether referrals should be made under sections 111 and 112 of the GIPA Act and whether there had been breaches of sections 116 to 120 of the GIPA Act. Mr Zonnevylle submitted that had not been given sufficient opportunity to amend and re scope his request for information, the officer had failed to provide him with mandatory reasonable advice and assistance as required under s 16, Chris King had failed to exercise his or her functions in good faith as required by s 112 of the GIPA Act and this conduct was relevant to the reviewable decision.
7. Mr Zonnevylle also submitted that access to the information was of "demonstrable importance" to him because the letter from Jodie Cobbin dated to 27 May 2019 made allegations against him that he had engaged in an ongoing campaign of unacceptable behaviour, he had engaged in conduct which was perceived as being menacing, intimidating and harassing, he had sent a letter amongst rubbish in a manner that required the recipient to sift through the rubbish in order to retrieve it, he had concealed his identity for the purpose of delivering the box and the recipient of the box felt unsafe and concerned that the rubbish was being used to conceal hazardous substances. The fact that this was reported to police is it a matter in respect of which Mr Zonnevylle had no previous knowledge and he was therefore entitled to know about all of the allegations made against him. He is also entitled to have access to the correspondence relating to Lida Kaban to understand issues raised by her in an undated letter a complaint was forwarded to Detective Chief Inspector John Maricic dated 20 November 2018. Following this complaint police attended his premises on 21 November 2018. He therefore has a reasonable and legitimate concern that Ms Cobbin has made unsubstantiated accusations against him to cause him irreparable reputation and personal damage. Information relating to this information is of demonstrable importance to Mr Zonnevylle. The correspondence relating to this claim (which was attached to Mr Zonnevylle's application for review) was also tendered by Mr Zonnevylle during the hearing and is detailed below.
8. The respondent submits that the Tribunal's jurisdiction in these proceedings is limited to consideration of the respondent's reviewable decision, namely the decision to refuse to deal with Mr Zonnevylle's access application under the GIPA Act. It is further submitted that the Tribunal should not entertain those aspects of the application that seek to agitate matters going beyond this permissible review.
9. The respondent submits that the 9 grounds referred to in Mr Zonnevylle's grounds of the review should not form the basis for the Tribunal's review. Those grounds are summarised above and form the basis for an application made by the respondent that Mr Zonnevylle application be dismissed under s 55 of the CAT Act. This application, which is referred to below, failed.
10. On the substantive issues, the respondents submits that it is the task of the Tribunal when undertaking administrative to review to determine the correct and preferable decision at the time the Tribunal makes its decision. It is submitted that dealing with Mr Zonnevylle's access application would require an unreasonable and substantial diversion of the resources of the respondent and that, accordingly, the Tribunal should affirm the decision under review.
11. The central issue to be considered by the Tribunal whether dealing with Mr Zonnevylle's would involve an unreasonable and substantial diversion of the respondent's resources. The consideration of these matters is guided by sections 60(3A) and (3B) of the GIPA Act as well as a number of previous decisions of the Tribunal. The respondent's submissions in relation to these matters are set out in more detail later in these reasons.
12. In summary, the respondent submits that the volume of information held that may respond to Mr Zonnevylle's application is not known because to even undertake the initial searches would require an unreasonable and substantial diversion of resources. However, based on the available information the Tribunal could be satisfied that the volume of responsive information would be substantial. It is further submitted that given the immense size and breath of the respondent and its role, dealing with Mr Zonnevylle's application would be a significant burden on the respondent which would divert resources from these other matters. The respondent submits that the matters referred to in s 60(3A) of the GIPA Act outweigh those considerations that must be taken into account under s 60(3B). It is submitted that, while much of the information requested would be classified as personal information of Mr Zonnevylle, the respondent is not aware of his motivation for seeking access to the information. Nor is it apparent that Mr Zonnevylle seeks the information for the purpose of exercising any rights under any act or law.

Procedural issues

1. In November 2020, the respondent made application for Mr Zonnevylle's application for review to be dismissed on the grounds, amongst other things, that the application was misconceived, Mr Zonnevylle raised issues outside the Tribunal's jurisdiction for administrative review and the Tribunal had previously considered that those matters raised were outside the scope of its jurisdiction, the application was vexatious and had been brought for a collateral purpose. This matter was considered by the Tribunal in Zonnevylle v NSW Department of Justice [2021] NSWCATAD 175. Senior Member Christie found at [38] as follows: I appreciate that the Applicant has raised a number of concerns and made submissions more broadly about a range of matters, alleged misconduct and questions of law beyond the jurisdiction of the AR Application proceedings. However, the question is not whether these excesses exist in the AR Application but whether there is any request within the Tribunal's jurisdiction relevant to his AR Application in relation to the Decision under the GIPA Act. That is, is the Applicant at all seeking the Tribunal to determine whether the Decision is the preferable one in the circumstances on the material before it and, if so, has the Respondent established that the AR Application is otherwise vexatious because it has been brought for a collateral purpose.
2. The application was dismissed because the Tribunal was not satisfied that the application was vexatious of that it was being brought for a collateral purpose contrary to the rights granted under the GIPA Act.
3. On 27 July 2021, Mr Zonnevylle made an application that certain matters be referred to the Supreme Court on a question of law under s 54 of the CAT Act. The questions were whether the Tribunal has a mandatory obligation to promote the objects of the CAT Act, the ADR act and the GIPA Act and whether the respondent had mandatory obligations to promote the objects of the GIPA Act and uphold the mandatory conduct obligations under the GSE Act. The application further sought that the Tribunal should order the respondent to uphold the mandatory conduct obligations, declare all conflicts of interest, provide a schedule of all functions exercised for his access application, including identifying of the officer exercising those functions, uphold the mandatory obligations of the GIPA Act, identify the officer using an alleged false name and provide reasons for the false name, provide detail of the processing times, provide him with advice and assistance to make a valid application and provide as much information to him so that s 60(1)(a) of the GIPA Act is avoided.
4. The Tribunal (Senior Member Christie) dismissed the application by decision dated 27 September 2023. The Tribunal was not satisfied that the referral questions were relevant to the administrative review proceedings, nor that they were within the jurisdiction of the Tribunal in relation to an administrative review under s 100 of the GIPA Act. Senior Member Christie also had concerns about whether the referral questions could be considered questions of law. Directions were made to progress the case.
5. On 9 October 2023 the proceedings came before the Tribunal (Senior Member Higgins) for a case conference. Mr Zonnevylle made an application to record the proceedings, which was refused, and then made an application that Senior Member Higgins recuse herself. Both applications were refused, and written reasons were provided on 10 October 2023. The Tribunal then made directions about evidence, documents and submissions, including directions that Mr Zonnevylle notify the Tribunal and the respondent by 25 October 2023 whether he withdraws the remaining questions of law notified in an email sent to the Tribunal on 17 February 2022 or whether he continues to press these questions. In the event Mr Zonnevylle continues to press the remaining questions, he was directed to identify which of the remaining questions he pressed and the grounds on which were pressed. If the referral for the questions of law were to be pressed by Mr Zonnevylle, the respondent was to provide by 8 November 2023 its response to those questions. Mr Zonnevylle was to provide any submissions written submissions in response by 22 November 2023.
6. On 12 December 2023, the Tribunal extended the time for compliance with procedural directions made by the Tribunal on 9 October 2023 relating to the filing of evidence, documents and submissions by the respondent and Mr Zonnevylle. In summary, the timetable was extended to 16 February 2024. Mr Zonnevylle did not notify the Tribunal and the respondent about the remaining questions of law, nor did he raise this issue at the subsequent directions hearings.
7. On 20 February 2024 the matter again came before the Tribunal for directions. Mr Zonnevylle was given an extension of time to comply with the direction about his evidence, document send submissions, which was extended to 2 April 2024. The respondent was given a corresponding extension for submissions and evidence in reply to 17 April 2024. The proceedings were listed for hearing on 17 May 2024. Mr Zonnevylle made an application to record the directions hearing, which was refused. He then requested that the presiding member recuse herself, which was also refused. Written reasons for this were provided with the orders made on 20 February 2024.
8. At the commencement of the hearing on 17 May 2024, Mr Zonnevylle made an application for an adjournment because he wanted to issue a summons to a person known as "Chris King", being the person who was identified as having made the decision under review. As became apparent at the hearing and from correspondence between the respondent and Mr Zonnevylle about the utility of the summons, the name Chris king was a pseudonym for the officer who made the decision on 29 May 2020. Mr Zonnevylle stated that the purpose of issuing the summons was to question whether the decision had been made by Chris King in good faith. The adjournment was sought to progress the summons and have Chris King appear at the hearing for cross examination.
9. I rejected both applications. I was not satisfied that the summons to the decision-maker to give evidence, regardless his or her identity, was relevant to or would advance the administrative review of the decision. The decision, the written reasons for the decision and the correspondence between the officer and Mr Zonnevylle speak for themselves. My task is to conduct merits review of this decision and to make the correct and preferable decision having regard to the material available at the time of my decision. As already noted, I am not bound by the decision of the delegate, I am not reviewing the decision to assess whether it was made in error or whether it was made in good faith.
10. Any question that arises about s 112 of the GIPA Act is incidental to, and not the purpose of, the review. Section 112 provides that the Tribunal may report proper conduct if it is of the opinion, on the completion of the administrative review, that an officer of an agency has failed to exercise in good faith a function conferred under the GIPA Act. There is nothing on the face of the material to suggest malafides by the officer or that any relevant material has been improperly withheld such that there would be grounds to compel the officer to appear at the Tribunal to answer questions. The respondent filed evidence from a senior officer who was available for cross examination on his affidavit. In rejecting his application, I advised Mr Zonnevylle during the hearing that any questions about the searches undertaken or to be undertaken and the resources that would be utilised to deal with Mr Zonnevylle's application would be more appropriately addressed to Mr McIntosh.
11. Given the adjournment was requested for the purpose of issuing the summons, which was refused, there was no reason to adjourn the proceedings.
12. After this request was refused, Mr Zonnevylle requested that I recuse myself from hearing his application on the basis that I was biased. I decided not to do so. Mr Zonnevylle raised no grounds as to why I should be recused other than the fact that I had ruled against him on his interlocutory application. Making a decision during the course of proceedings on procedural matters based on well-established legal principles where those decisions may not be favourable to a party, does not established bias. Relevantly, Mr Zonnevylle did not provide any submissions as to why I should recuse myself or the grounds on which he alleged that I was biased against him and was unable to bring an impartial mind to bear on the proceedings.
13. As noted above, as part of his submissions Mr Zonnevylle requested that certain questions of law be referred to the Supreme Court under s 54 of the CAT Act. Section 54 of the CAT Act provides that the Tribunal may, on its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court. The Tribunal may only refer a question of law with the consent of the President. Mr Zonnevylle has raised the issue about the referral of questions of law on a number of occasions in these proceedings. One of his applications was considered but rejected by the Tribunal by written decision dated 27 September 2023. The decision is lengthy. Mr Zonnevylle's application for review has been the subject of numerous directions and directions hearings. The Tribunal conducted a case conference on 9 October 2023 and made directions to progress all matters in dispute, including dealing with Mr Zonnevylle's remaining application for questions of law to be referred to the Supreme Court. The Tribunal correctly identified the importance of identifying the question and the grounds for referral and made directions about these matters accordingly. Mr Zonnevylle did not provide any submissions in relation to these matters.
14. At the commencement of the hearing when this issue was raised, I advised Mr Zonnevylle that I did not propose to refer the matters he had raised in submissions. In summary, the questions raised, which appeared to be new questions, were not raised in accordance with the procedure set out in the previous directions of the Tribunal, they did not appear to raise questions of law in relation to any contentious matter in dispute (relevantly, Mr Zonnevylle was seeking declarations about legal principles that were uncontentious) and it was apparent that Mr Zonnevylle was seeking to have determined matters that would either fall for consideration in the proceedings or were irrelevant.
15. After the final hearing, but before the timetable was closed for submissions, Mr Zonnevylle made an application to the registry for the issue of a summons to Mr McIntosh for the production of various documents, which included all search requests and reports relating to his access application, a full and unredacted copy of presentations given by Ms Cobbin and any strategies developed by her for dealing with Mr Zonnevylle and other access applicants, all evidence of and documents relating to searches made on Ms Cobbin's laptop computer and any dedicated file that Ms Cobbin has on Mr Zonnevylle and all directives, memoranda, proposals which had the effect of having Mr Zonnevylle deemed a vexatious or fixated litigant. The application was refused on 6 September 2024 by the Registrar on the grounds that the decision in the proceedings were reserved awaiting final decision and no leave had been granted to reopen the evidence.
16. Mr Zonnevylle requested an extension to the timetable and, by written application received on 10 October 2024, requested certain "questions of law" to be referred to the Supreme Court under s 54, which included whether the Tribunal had the authority to review a registry decision to refuse a summons, whether the review refusal was lawful and whether the registry officers had breached their mandatory conduct obligations by refusing the summons. Mr Zonnevylle sought orders that the timetable for submissions be set aside and that any timetable should include the review of the registry decision to refuse the summons and referral of questions of law.
17. Mr Zonnevylle also requested a review of the decision of the registry not to issue the summons, which was referred to me. Submissions were sought from the parties on 17 October 2024 in relation to the request for the issue of the summons and submissions about whether the application could be dealt with under s 50 of the CAT Act.
18. The respondent submitted the proceedings had been finalised and the decision was reserved following three days of hearing, one full day and the other hearings for half a day. Directions were made about the filing of submissions and no further submissions were filed pursuant to the Tribunal's orders on 21 August 2024. There was no direction made about further evidence and the issues for determination by the Tribunal had already been subject to considerable evidence, with two affidavits filed by Mr McIntosh and lengthy cross examination by Mr Zonnevylle.
19. It is further submitted that there is no apparent legitimate forensic purpose for the information that Mr Zonnevylle seeks to be produced in the proceedings. Mr McIntosh had already been cross examined, the information requested in respect of Ms Cobbin could not have any conceivable relevance to the issues to be determined by the Tribunal, the information requested in relation to Ms Cobbin's computer was already covered by Mr McIntosh's evidence about the searches undertaken and, in event, the a request for the information identified in the summons would have the effect of requiring searches to be undertaken for information and the production of that information that would be for a collateral purpose and is the subject of the issues in dispute in any event. In other words, requiring the respondent to comply with the summons would have had the effect of producing some of the documents request by Mr Zonnevylle in his access application. The respondent further submitted that the application for review could be determined on the papers under s 50 of the CAT Act.
20. Mr Zonnevylle made submissions about whether the summons should be issued, received by the Tribunal on 1 November 2024. He submitted that the summons in relation to Mr McIntosh should be issued because, amongst other things, he was entitled to further test Mr McIntosh's evidence, there were issues raised about Ms Cobbin developing strategies to deal with difficult and "fixated" applicants and this information was relevant to his application the Tribunal. Mr Zonnevylle made allegations of wrongful and unlawful conduct by Ms Cobbin, Mr McIntosh and the OGIP unit and asserted that I was biased. He submitted that the decision by the Tribunal in relation to the review of the summons decision could not be considered on the papers.
21. On 13 November 2024, the Tribunal received an application from Mr Zonnevylle seeking leave to amend his summons application to request further information in relation to Ms Cobbin arising out of evidence given by Ms Cobbin in Webb v Secretary, Department of Communities and Justice [2024] NSWCATAD 238. These proceedings relate to an access application made by another party and evidence given in relation to these proceedings by Ms Cobbin. These proceedings and the evidence given by Ms Cobbin has no to the relevance to the current application.
22. Having regard to the written submissions provided by the parties, I am satisfied that the review of the decision made by the registry to refuse the summons is an issue that I can consider on the papers, without the need for a hearing.
23. I reject the application for review and refuse to issue the summons to Mr McIntosh to provide the documents requested in the summons or to issue any amended summons. As noted by the respondent in its submissions, the evidence in the proceedings was finalised on 21 August 2024. There with three days of hearing and a directions hearing where I agreed to Mr Zonnevylle's request for an adjournment to give him further time to consider and cross examine Mr McIntosh in relation to his second affidavit. The only directions made at the conclusion of the final hearing was that the parties should be given the opportunity to provide any further written submissions. This direction was made for the benefit of Mr Zonnevylle and any submissions by the respondent were to be in response.
24. I made no directions in relation to further evidence. I am not satisfied that Mr Zonnevylle has provided cogent grounds to support his contention that the evidence should be reopened. The issues that Mr Zonnevylle seeks to raise in relation to Ms Cobbin and now Mr McIntosh are issues that Mr Zonnevylle has previously raised in these proceedings. Directions have previously been made by the Tribunal for the conduct of the hearing and Mr Zonnevylle has been provided with numerous opportunities to make submissions and present his evidence. There must be some finality to the proceedings, which have now been before the Tribunal for over four years. Section 36 of the CAT Act provides the Tribunal must give effect to the guiding principles, which are to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
25. I am not satisfied that the issues that Mr Zonnevylle now seeks to raise are relevant to the real issues in dispute between the parties in respect of which the Tribunal has jurisdiction. Mr Zonnevylle was directed to provide any submissions by 24 September 2024. He has not provided any submissions and the reason given was that he needed to have the summons issued to Mr McIntosh in order to file his submissions. For the reasons I have already outlined, the summons has not been and will not be issued. Despite this, Mr Zonnevylle could have made submissions on other issues in accordance with the timetable or at any time after the final hearing. Since the last hearing, Mr Zonnevylle has made several applications, none of which have been authorised by leave or previous directions of the Tribunal.

Issues for determination

1. As noted, in this case the respondent made a decision under s 58(1)(e) and refused to deal with the application on the basis of s 60(1)(a) of the GIPA Act.
2. As such, the task of the Tribunal is to make the correct and preferable decision in relation to this application and, relevantly, to determine whether Mr Zonnevylle's access application will require an unreasonable and substantial diversion of the respondent's resources.
3. The Tribunal does not have jurisdiction to make findings on the question of whether officers of the respondent have breached the criminal offences set out in the GIPA Act or whether they have performed their functions under other legislation such as the GSE Act. As correctly identified by the Tribunal in the 2017 Zonnevylle v Department of Education proceedings, findings in relation to s 112 can only be made after the Tribunal has conducted the review and formed that an officer of an agency has failed to exercise a function under the GIPA Act in good faith. The conduct of the review is not to test or explore the issue of whether an officer has failed to act in good faith, simply because the access applicant has grave concerns or fears about this. This is not the purpose of the application for review and raising concerns about misconduct of the various officers of the respondent and seeking information in order to prosecute these claims is not the purpose of the application for review.
4. Despite this, I accept that in consideration of the evidence, if the Tribunal were to form a view that there was improper conduct or functions were not exercised in good faith, it would be appropriate to make a referral under sections 111 or 112 of the GIPA Act. My consideration in relation to these matters are dealt with later in my reasons.

Evidence tendered by Mr Zonnevylle

1. Attached to submissions made by Mr Zonnevylle are copies of documents and correspondence, principally relating to Ms Jodie Cobbin and Ms Lida Kaban, which appear to be the foundation for concerns he has about misconduct by respondent officers, both involving him and in processing his access application.
2. Of concern to Mr Zonnevylle is a letter dated 27 May 2019 from Ms Cobbin addressed to Mr Zonnevylle. The letter is part of exhibit A6 which was tendered by Mr Zonnevylle. Exhibit A6 comprises an event report number E69181322 from NSW Police dated 20 November 2018. The report is redacted and identifies Mr Zonnevylle as a person of interest. It relates to a complaint made by OGIP about emails sent to OGIP. The report records that the police officers attended Mr Zonnevylle's work address which was closed and left a message on his mobile. The police officer subsequently spoke with Mr Zonnevylle over the telephone. It was noted that the police officer told Mr Zonnevylle that if he continued sending emails to OGIP the matter would escalate and could result in formal investigation. It is recorded that Mr Zonnevylle informed the police officer that he would stop sending emails. It was further noted that no further police action was required. The police records also include handwritten notes made by the officer.
3. The letter dated 27 May 2019 refers to a letter from Mr Zonnevylle delivered by courier on 21 May 2019 in a large box filled with garbage. The letter was delivered to the Office of the General Counsel of the respondent. It is stated that the purpose of the letter is to advise Mr Zonnevylle that correspondence delivered in this way will not be accepted or acknowledge within the process of the GIPA Act. Because of the importance that Mr Zonnevylle places on this letter, it is extracted almost in its entirety as follows: The manner in which you sent that correspondence in the box has been perceived by staff and I as harassment, intimidation and, an act clearly designed [to] menace, cause fear and distress. I note the following: • Your letter, which of itself was a standard size letter that could have easily fit into a standard size envelope was delivered in a large box (dimensions 45 x 30 x 20) filled with rubbish; • The letter was buried amongst the rubbish, in a manner that required the recipient to sift through the rubbish in order to retrieve it. • The box noted your details as sender as Peter SMSM rather than your full name, in what I believe was a deliberate endeavour to conceal your identity and deny the recipient an opportunity to exercise any safety precautions before opening it. • The size of the box caused the recipient to feel unsafe and concerned that the rubbish was being used to conceal hazardous substances or other dangerous material. This has caused staff in the Office of the General Counsel, Open Government, Information and Privacy Unit (OGIP) to feel fearful, unsafe and experience stressful stop to ensure compliance with work health and safety legislation, and to safeguard staff from experience further harassment or anxiety, parcels boxes and couriered material will not be accepted from you. The delivery of this box on 21 May 2019 forms part of what has been a lengthy ongoing campaign of unacceptable behaviour by you that staff perceive as menacing, intimidating and harassing conduct. This campaign includes the sending by you of large number of ongoing unreasonable, harassing, rude and repetitions emails to OGIP staff. Due to your behaviour, on 22 October 2018 you were advised by me in writing that your email address would be blocked and correspondence would not be considered as received by the department unless delivered by Australia Post. You were also advised that this action was taken under work, health and safety legislation to protect staff from experiencing further stress arising from your emails. In spite of this you continue to send emails after that date that were located in various junk email folders. ………………………….. You are reminded that communication from you will only be accepted as received by the department if delivered in an envelope by Australia Post. Any such envelope sent must be no larger than A4 size. The letter in the box will not be addressed or acknowledged under the GIPA Act. This is a business decision to restrict the manner of contact used by you to mitigate unacceptable health and safety risk to OGIP staff posed by your ongoing intimidation, harassing behaviour. My decision to refuse to accept parcels and boxes from you by courier does not limit your ability to exercise your right to access information under the GIPA Act. If you wish to correspond with the OGIP unit regarding your access application, we will only acknowledge and respond where the correspondence is sent in an envelope no larger than a full size.
4. Mr Zonnevylle also tendered (as Exhibit A5) a letter dated 19 July 2017 from Katherine Forbes, OGIP advisor, addressed to him. The letter was headed Notice of request to re scope/amend access application. The letter noted that the time to perform certain functions to deal with his application was estimated at 47 hours and 50 minutes. Mr Zonnevylle was encouraged to contact the department to discuss amending the scope of his application. This letter appears to relate to another access application made by Mr Zonnevylle in 2017.
5. Mr Zonnevylle also made submissions about an undated letter from General Counsel, Ms Lida Kaban, which letter was sent by Ms Kaban to Mr Zonnevylle on or about 4 May 2020.
6. This letter is in response to an email dated 29 March 2020 from Mr Zonnevylle. The letter is in the following terms: I refer to your email received on 29 March 2020 and your follow up email received 24 April and today's date. In your March email you raised a concern about the use of a pseudonym by staff in the Open Government Information and Privacy unit OGIP unit, Legal, and complained of harassment and bullying by staff in the unit. I apologise for the time taken to respond to your emails and wish to assure you that the concerns you have raised have been carefully considered. In reply to your question concerning the officer named Chris King, reference your formal access application reference LEGAL 26/20, I confirm that the name Chris King is a pseudonym used by the officer dealing with your access application. Use of the pseudonym has been approved by me to facilitate the handling of your access applications. This measure was taken having regard to Work Health and Safety Act 2011 in order to minimise the risk of harm to the health and safety of employees in the OGIP unit. I understand there is a perception in the OGIP unit that your interactions with staff in respect of your access applications and correspondence have been of concern and cause distress and anxiety to officers dealing with you. Staff concerns stem from the language and tone used in the large volume of correspondence received from you, including a letter that you sent by courier, which was contained within a box of garbage, on 21 May 2019. The forwarding of the box of garbage was reported to NSW police in 2019 by the director of the OGIP unit. I have also been updated on a decision of the NSW Civil And Administrative Tribunal (NCAT) following its consideration of concerns held jointly by several government departments about your conduct. I understand that on 3 April 2020 the NCAT ordered accordance with section 110 of the GIPA Act, that your ability to make an access application under the GIPA Act direct be restricted for an indefinite period of time without you first obtaining the approval of the NCAT. The use of a pseudonym by OGIP staff in communicating with you does not hamper respectful dealings of your formal access applications on foot. Officers in Legal are aware of the use of the pseudonym as it relates to the officer dealing with your current applications and I understand that you being kept appraised of the status of those applications directly. While I appreciate the concerns you have raised I will not be reversing my decision in respective staff within the OGIP unit who deal with your applications using a pseudonym when responding to you. Please be assured that all times your dealings with staff will be respectful and professional.
7. Following this, Mr Zonnevylle sent an email to Ms Kaban dated 4 May 2020 (Exhibit A4). He took issue with the fact that Chris King was being used as a pseudonym for the officer processing his claim. He stated that he was deeply disturbed by this, and this prima facie showed a lack of good faith, a breach of the respondent's conduct obligations, a breach of statutory obligations and a breach of his GIPA Act rights. Mr Zonnevylle questioned how this was to minimise the risk of harm. He sought evidence of the facts that his interactions with staff in respect of his access application had caused stress and anxiety. He stated that it was not his intention to either directly or indirectly cause distress or anxiety, but he had grave fears is to how his access application was being compromised by the lack of good faith. He raised concerns about the complaint being made against him by Ms Cobbin, who he stated abused her position to involve the Sydney Area Command NSW Police to misuse police resources. He noted that police had not contacted him about the box and the packaging. Mr Zonnevylle repeatedly raised concerns about whether his application was being processed in good faith and suggested that if either Katherine Forbes or Jodie Cobbin were using the fake name of Chris King to process his application, he would consider this to be a conflict of interest and it would be inappropriate.

Evidence tendered by the respondent

1. The Tribunal was provided with an affidavit sworn 12 December 2023 from Mr Michael McIntosh. Mr McIntosh is responsible for processing and deciding access applications made under the GIPA act and for supervising and assisting other staff within the OGIP unit in relation to such applications. He has over 8 years' experience in managing teams processing applications under the GIPA Act, including at the respondent and in the NSW Police Force. He was not directly involved in processing Mr Zonnevylle's access application.
2. Mr McIntosh outlined the history of the application and annexed to his affidavit the relevant correspondence referred to by the delegate. He addressed each of the requests made by Mr Zonnevylle.
3. During the course of the first hearing, Mr Zonnevylle told the Tribunal he was prepared to consider amending his request. He was directed to provide any amended request by 26 June 2024. Mr Zonnevylle provided to the Tribunal and the respondent particulars of the amendments to his request in accordance with the directions.
4. Mr McIntosh provided a further affidavit dated 12 July 2024 responding to the amended request.
5. Mr McIntosh attended the Tribunal and gave oral evidence on 17 May 2024 and 21 August 2024. At the first hearing, Mr McIntosh gave oral evidence to the Tribunal explaining aspects of his affidavit of 12 December 2023 and was cross examined by Mr Zonnevylle for several hours. He was cross examined in relation to the contents of his affidavit of 12 July 2024 on 21 August 2024 for several hours. I originally directed that Mr Zonnevylle should be allowed two hours to cross examine Mr McIntosh on his second affidavit. During the course of the hearing, I extended the time for cross examination. However, given Mr Zonnevylle spent several hours cross examining Mr McIntosh without directly questioning him on the issues raised in his second affidavit, I gave a direction to Mr Zonnevylle after two hours limiting his cross examination under s 38(6) of the CAT Act to a further hour. In total, Mr McIntosh was cross examined by Mr Zonnevylle over a period of at least six hours.
6. At the first hearing, Mr McIntosh was asked questions by Mr Zonnevylle relating to the processing of his application by reference to the correspondence attached to his affidavit. For instance, Mr McIntosh was asked whether it was reasonable, or conversely unreasonable, for an applicant to ask for assistance to enable that applicant to make a valid application so that applicant could seek as much of the information requested as possible. Mr McIntosh was also asked why he could not be provided for processing times for particular items and each sub item to assist him to re-scope his request. In summary, Mr McIntosh responded to the effect that, as a general proposition, it was reasonable for an applicant to seek assistance and for officers to provide assistance, although he did not agree that an applicant could be provided with processing times for each and every request. There was questioning along similar lines at the hearing on 28 August 2024.
7. In essence, Mr Zonnevylle's contention, which was the focus of a number of questions directed to Mr McIntosh, was: how could he rescope his request to seek access to the greatest amount of information that the respondent would be able to provide without it being considered an unreasonable and substantial diversion of resources? This was one of the key issues of concern raised by Mr Zonnevylle which is considered later in these reasons.
8. Mr McIntosh was cross examined at both hearings about the process undertaken by the delegate, the role of Ms Cobbin and her involvement in dealing with the application, whether he was a member of the information and privacy network, whether the department had ever allowed an access request which took longer than 40 hours to process where personal information was involved and what was the maximum processing time that had been allowed in responding to a request for access to information. Mr McIntosh was also cross examined about whether the delegate had performed the function in assessing his application in good faith, whether the fact that Mr McIntosh had previously instructed the respondent's lawyers make to the application for summary dismissal influenced his evidence in these proceedings and there was a strategy to obstruct Mr Zonnevylle in requesting information.
9. Mr McIntosh responded to all of the questions. He denied that the instructions he had given influenced his evidence in the proceedings, he denied there was any strategy to obstruct Mr Zonnevylle in obtaining information, he believed that the officer had discharge the functions in assessing his application in good faith and he was unable to say what the maximum processing time that had been allowed by the respondent was. He said he was not close to Ms Cobbin, although he worked with her, and he had not communicated with her in relation to the application. Mr McIntosh was specifically questioned about whether Ms Cobbin had exercised any functions in relation to the processing of Mr Zonnevylle's application. Mr McIntosh gave evidence that she had not, although she did have general oversight of the OGIP unit but had not given any directions in relation to the application.
10. Mr McIntosh said that he had processed or checked thousands of GIPA Act applications over the years. He said also that the OGIP received approximately 6,000 GIPA Act applications each year. Mr Zonnevylle asked Mr McIntosh about how many hours processing time and at what point of time would it be considered that an application would involve an unreasonable and substantial diversion of resources. He was asked whether the OGIP considered that 40 hours was the cut-off point or threshold. Mr McIntosh said there was not a threshold but if an application was going to take approximately about 40 hours it would be scrutinised very closely, and they would want to be satisfied that there was a demonstrable importance or public interest in the information requested. In the present case, it was estimated, as set out in paragraphs 90 to 92 of his first affidavit, that there would be a further 44 hours required to undertake the various searches and OGIP had already spent 11 hours on undertaking the searches. It was therefore estimated that at least 55 hours would be spent on processing Mr Zonnevylle's application and the amendments he had proposed did not materially change this estimate.
11. At the hearing on 21 August 2024, Mr McIntosh was cross examined by Mr Zonnevylle about whether the information request involved Mr Zonnevylle's personal information. He agreed that a substantial volume or the majority of the information requested in respect of items 1 to 6 would contain personal information about Mr Zonnevylle. This would not be the case for Items 7, 8 and 11. Items 9 and 10 would contain a combination, namely some of the subcategories would substantially contain personal information concerning Zonnevylle and some would not. Items 12 and 13 would include personal information relation to both Mr Zonnevylle and other parties. Mr McIntosh agreed that this was a relevant consideration when dealing with an application under the GIPA Act.
12. Mr McIntosh gave evidence relating to each of the 13 categories of documents requested by Mr Zonnevylle. It is convenient to set out his evidence relating to each of these categories under headings. It is also useful to note that Mr Zonnevylle's request includes abbreviations. Where Mr Zonnevylle refers to DoJ, this is a reference to the respondent. The reference to CSO and NCAT, is a reference to the Crown Solicitor's Office and to the NSW Civil and Administrative Tribunal respectively.

Item 1: Correspondence between various units of respondent (and Cobbin) and the Department of Education concerning Zonnevylle from Jan 2018 to April 2019

1. The original request for this item was: Correspondence/ emails etc between: a. the DoJ information privacy unit b. the DoJ office of general counsel c. Cobbin and the NSW dept of education and any designated representatives (legal or otherwise) of dept of education concerning Zonnevylle Period from January 2018 to April 2019
2. In Mr Zonnevylle's correspondence of 29 March 2020, he proposed that the item be amended as follows: Correspondence/ emails etc between: a. the DoJ information privacy unit b. the DoJ office of general counsel c. Cobbin and d. The NSW dept of education e. Hicksons law firm f. Wentworth chambers concerning Zonnevylle. Period from January 2018 to April 2019
3. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend this item as follows: a. Correspondence/ emails/ documents etc between: i. Cobbin ii. Cobbin's secretary/office manager/personal assistance iii. Lida Kaban iv. Lida Kaban's secretary/office manager/personal assistant and v. NSW education vi. And iCare email address b. Correspondence/ emails/ documents/ etc Requests for consultation from any other agency under the GIPA Act concerning Zonnevylle From Jan 2018 to April 2019
4. Mr Zonnevylle provided commentary in relation to this amended request as follows: Search words/search terms must include: Zonnevylle search words/ search terms should include: vexatious complainant/ vexatious applicant/ UCC
5. In his first affidavit, Mr McIntosh stated that he did not consider the first proposed amendment would have any material effect on the time that would be required to search for responsive information all the volume likely to be identified and reviewed is potentially responsive. To search for the information potentially responsive, he stated that it would be necessary to identify individual staff members working in OGIP and the office of general counsel for the relevant period, identify any relevant generic mailboxes maintained by OGIP and the office of general counsel for the relevant period, arrange for searches to be undertaken of both the inboxes and set items of each of these email accounts for all emails in the relevant period that were with officers of the Department of Education or legal representatives acting on behalf of the Department of Education and relating to Mr Zonnevylle. He noted that the respondent estimated these searches would take approximately 2 hours, but he did not consider that the estimate initially given to be accurate as it would be necessary to involve the Information and Digital Services (IDS) department so that they could undertake these searches across the respondent's email servers for all emails that fell within the search criteria. Mr McIntosh had made a request of the IDS and they had given an estimate that 10 hours would be required to undertake searches of this nature.
6. Mr McIntosh identified that several more hours would then be required to undertake a review of the material identified by the searches in order to confirm whether it is responsive and to assess what information would be disclosed. This was because for the relevant period for which the Mr Zonnevylle seeks the information, the Department of Justice was involved in proceedings before the Tribunal in which the Department of Education applied for an order to be made under section 110 of the GIPA Act with respect to Mr Zonnevylle. He expected that the review of this material would be time consuming and complex having regard to the likely volume of the response information, the need to undertake consultation with the Department of Education as well as former staff who are no longer employed by the department and the complex legal issues likely to arise, in particular, around issues of legal professional privilege.
7. In his affidavit of 12 July 2024 in relation the proposed further amended item 1, Mr McIntosh noted that this version is partly more targeted but he also notes that the request now seeks correspondence with any iCare email address, which is an additional source of information, and adds sub paragraph (b). Mr McIntosh therefore states that he does not consider the proposed amendments to item one would materially affect the original estimate of time required to search for responsive information. It would still be necessary to search the inboxes of a number of people as both Ms Cobbin and Ms Kaban would have been assisted by various persons who would fall within the description of secretary, office manager and personal assistant in the relevant period. He notes that the expanded request would require broader searches for responsive information. Mr McIntosh states that he consulted with the IDS and was informed that there were 9,568 emails that fell within these terms for the relevant period. He specifically asked the IDS to undertake a search for emails using the combination of the search terms requested by Mr Zonnevylle and there were zero responsive records. In summary, Mr McIntosh concludes that the proposed revisions do not lead him to a different view as to the time that would be required to undertake the various searches as set out in his previous affidavit in paragraphs 26 and 27.
8. At the hearing, Mr McIntosh was asked questions about his response to the amended request in respect item 1. He said that the respondent now has 62.5 full-time equivalent employees which was about 200 to 250 actually employees. He said that Ms Cobbin had her own email account and was part of other group email accounts. He said that Ms Kaban had 3 executive assistants at one stage and given the passage of time there would have been changes to the personnel. This is why they would need to get the assistance of the IDS.

Item 2: Correspondence/ emails etc concerning the respondent pursuing Zonnevylle as a vexatious

1. In the original claim, Mr Zonnevylle sought access to correspondence emails etc concerning responded pursuing Mr Zonnevylle as a vexatious complainant or a vexatious applicant in the period January 2018 to April 2019.
2. In his letter of 8 February 2020, Mr Zonnevylle proposed that this item to be amended to seek: Correspondence/ emails etc to/ from a. the DoJ information privacy unit b. the DoJ office of general counsel c. Cobbin pursuing Zonnevylle as a d. Vexatious complainant e. Vexatious applicant Period January 2018 to April 2019
3. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend this item to confine the search to Cobbin, Cobbin's secretary/office manager/ personal assistant, Lida Kaban and her secretary/office manager/ personal assistant. These amendments are similar to the amendments proposed in respect of Item 1 and Mr Zonnevylle notes that he expects this would be captured by Item 1 in any event.
4. In his first affidavit, Mr McIntosh noted that in its letter dated 25 February 2020, the respondent had given Mr Zonnevylle a revised estimate that it would take 3 hours to search for emails in response to item 2 in the proposed revised form cover allowing for searches to be conducted in outlook through the inbox and sent items of relevant email address accounts coming including shared email accounts for the relevant email accounts. Mr McIntosh noted that, for the purpose of preparing his affidavit, he had made further inquiries of the ideas as to the time that would be required to undertake searches for responsive emails. He had been given an estimate of approximately 4 hours. Mr McIntosh states, similar to his response to item one, that it is not possible to provide an estimate of the time that would then be required to review responsive information without having some idea of the volume and nature of the records to be reviewed., he nonetheless noted that given the subject matter of the information requested, he would anticipate that complex issues would be likely to arise on the review of responsive information.
5. In his second affidavit sworn 12 July 2024, Mr McIntosh noted that the narrowing of the scope would still require these searches as outlined in respective item 1. He therefore concluded that he did not consider this revision would have a material impact on the time required to undertake the searches. Nor did he consider that the revision would materially reduce the scope of responsive information that would likely need to be reviewed. Mr Zonnevylle questioned Mr McIntosh about why the respondent would need to review item 2 as well as item 1 as he would have thought item 1 would cover both. Mr McIntosh said that different searches would need to be undertaken, although it was accepted there would be some overlap. He did not change his estimate.

Item 3: Documents detailing harassing calls made by Zonnevylle

1. In the application as originally drafted, Mr Zonnevylle sought access to information in the following terms: Documents detailing harassing calls made by Zonnevylle to: a. the DoJ information privacy unit b. the DoJ office of general counsel c. Cobbin d. or any other DoJ staff period from January 2018 to April 2019
2. It was originally estimated by the respondent that undertaking searches for information responsive to item 3 would take about 3 hours, based on an extrapolation of three separate teams being required to conduct searches for that information with each team taking two hours.
3. Mr Zonnevylle proposed a revision to item 3 to remove the reference to "any other DoJ staff". The respondent estimated, and advised Mr Zonnevylle by letter dated 25 February 2020, that it would take 3 hours to conduct searches for the information responsive to item 3 for that period.
4. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend this item by confining the request to "the DoJ information and privacy unit".
5. In his first affidavit, Mr McIntosh stated that he agreed the estimate of three hours to conduct searches was reasonable because it would be necessary to undertake searches of electronic document management systems and all relevant mailboxes for responsive records for the relevant period. In his second affidavit, Mr McIntosh noted that the removal of Ms Cobbin from these search terms would not reduce the scope because she was part of the information and privacy unit. He did not consider that the revision would materially reduce the estimate of three hours given in his previous affidavit.
6. When cross examined about this, Mr McIntosh said that there were 48 people in the respondent's information and privacy unit, and they would have to undertake searches in respect of each of those people. Mr McIntosh was questioned as to why he could not consult with Ms Cobbin about the searches to assist to direct the searches. Mr McIntosh said that he had not consulted with Ms Cobbin about the searches, but he did not believe that this would materially reduce the time required to search the relevant mailboxes.

Item 4: Documents submitted by Cobbin to NSW Police regarding complaint against Mr Zonnevylle

1. In the original access application Mr Zonnevylle sought the following: Unredacted documents/evidence submitted by Cobbin to the NSW police city area command regarding Cobbin's complaint against Zonnevylle for: a. harassment b. use of a carriage service to harass DoJ officers Period from January 2018 to April 2019
2. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend this item to correspondence/emails etc between Cobbin, Cobbin's secretary/ office manager/ personal assistance and Detective Chief Inspector John Maricic concerning Zonnevylle from November 2018 to December 2018. The request also sought the same information for the period May 2019 to December 2019 and requested, in the addition, correspondence between Cobbin, her secretary, office manager and personal assistant and the NSW Police Force Sydney city local area command. In commentary to the request, Mr Zonnevylle notes that item 4b relates to the "large box incident" referred to in Ms Cobbin's letter of 27 May 2019.
3. In his first affidavit, Mr McIntosh notes that in order to identify the information responsive to item 4 would be necessary to search the sent items for the correspondence centre in the specified date range to the email address at 'police.com.gov.au' and to undertake searches of the One Trim computer drives. The respondent originally estimated that it would take approximately 1 hour to conduct these searches. Mr McIntosh stated that he agreed with this original estimate, but he further stated that it will be difficult to say how long would then be required to undertake a review of the responsive information as a result of those searches. He expected that it would take an experienced officer several hours, approximately 4 hours, due to the likely volume of responsive information and the likelihood that there would be sensitive information requiring careful consideration and likely redaction.
4. In his second affidavit, Mr McIntosh noted that, on its face, the proposed amendment appears to expand the scope of responsive information requested because it extends the time from April 2019 to December 2019. Mr McIntosh also noted that the proposed amendment requests all correspondence between Ms Cobbin and her assistants and the police regarding Mr Zonnevylle as opposed to evidence submitted regarding a complaint by Ms Cobbin against him.
5. Mr McIntosh stated that he did not consider the revised terms would alter the nature of the searches that would need to be undertaken and that his estimate of one hour to undertake the searches remain appropriate. In addition, it was still his view that it would be likely that a greater volume of information would be identified as responsive and, therefore, the estimate of time to deal with this request would be expanded.
6. Mr McIntosh was questioned about this at the hearing and he maintained the position is outlined in his second affidavit, namely that amendment would not change the searches required and it may take a longer period to review the additional information.

Item 5: Formal complaints from DoJ made against Zonnevylle for harassment

1. In his original application, Mr Zonnevylle requested access to information respect of any formal complaints made from DoJ against Zonnevylle for harassment against any DoJ officer in the period from January 2017 to April 2019.
2. In a letter dated 18 February 2020, Mr Zonnevylle proposed amending this item as follows: Any formal complaints from a. the DoJ information privacy unit b. the DoJ office of general counsel c. Cobbin Period from Jan 2018 to April 2019
3. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to further amend this item as follows: a. any documents correspondence between a. Cobbin b. Cobbin's secretary/ office manager/ personal assistance c. Lida Kaban d. Lida Kaban's secretary/ office manager/ personal assistant concerning complaints against Zonnevylle Period from January 2018 to April 2019 b. any file Cobbin has gathered, constructed, compiled on Zonnevylle
4. In his first affidavit, Mr McIntosh noted that the respondent had estimated that it would take two hours to conduct searches for the complaint material requested. Mr McIntosh stated that he had formed the preliminary view that it could probably be undertaken a lesser time, namely one hour, because he would expect to be aware of any formal complaints of the nature referred to having been made in the period. He was not aware of any such complaints having been made although noted that searches would still need to be undertaken to confirm that this was correct. Despite this, Mr McIntosh stated that that he did not expect there would be any or many documents identified as a result of these searches.
5. In his second affidavit, Mr McIntosh notes that the proposed amendment appears to broaden the scope of the information requested. The original item 5 only requested any formal complaint, but the proposed amendment would now likely capture not only the complaints but any additional correspondence following the complaints. Despite this, Mr McIntosh does not revise the estimate that he gave in his previous affidavit, namely, that any searches would take about one hour. However, he states there is now some ambiguity as to what constitutes a formal complaint and this being the case, it would be likely that there would be an increase in responsive material identified. He also notes that the additional items requested relating to any file Ms Cobbin has gathered constructed or compiled on Zonnevylle, is very broad in its current terms and could be construed as any file relating to Mr Zonnevylle that is held within the OGIP unit, given that Ms Cobbin is the director of that unit. Mr McIntosh notes that this request could arguably extend to every file that has been opened in respect of Mr Zonnevylle's access applications and review proceedings and in his view, the respondent would not be able to deal with this aspect of the proposed item 5 is currently framed.

Item 6: Information identifying certain officers

1. In his original application Mr Zonnevylle requested this item as follows: a. identifying all CSO and NCAT officers who correspond with Forbes/OGIP/Cobbin concerning GIPA applications, reviews and appeals i. LEGAL2525/17 ii. LEGAL4177/18 iii. LEGAL2139/19 b. identifying the DoJ authorizing officer/instruction officer for AP19/51762
2. In his amended application of 29 March 2020, Mr Zonnevylle proposed to reframe his request still referring to each of the legal files identified but by reference to search requests made by "Forbes" and the information and privacy units to CSO and NCAT.
3. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend this item as follows: a. Correspondence between infoandprivacy@justice.nsw.gov.au (OGIP email) and CSO and NCAT for LEGAL 2525/17 Between 26 June 2017 and 30 July 2017 b. Correspondence/request/email for i. legal services for AP 19/51762 (the appeal of the decision of 2019/00356297) ii. any document which states that GSE Act OGIP officer will be providing directions for the GSE Act employed CSO officer Period between 21 October and December 2019
4. In his first affidavit, Mr McIntosh states that at the time of Mr Zonnevylle's application, preliminary searches undertaken identified approximately 135 items in total for containers responding to the three legal files identified in the application. It was estimated that it would take approximately 5 minutes to review each item to locate information responsive to item 6, equating to 11 hours to compile and review information responsive. Mr McIntosh considered this estimate and states that he believes the estimate to be reasonably based. However, he notes that some additional time would be required to review the responsive information as a key officer who was involved in the carriage of these files, Katherine Forbes, is no longer employed by the respondent. Mr McIntosh states that he would expect it would be necessary to consult with that officer as part of the review process. Mr McIntosh further states that he did not believe that the amendments proposed of 29 March 2020 would materially reduce the amount of time required to undertake the searches for item 6. He notes that, while Mr Zonnevylle has provided some more detail as to the type of correspondence he is requesting, it would still be necessary to review each of the items in the files which were responsive. Despite this, he acknowledges but the volume of responsive information might be reduced as a result of the revision.
5. In his second affidavit, Mr McIntosh notes the proposed amended item 6a has been narrowed in scope in some respects as it now only seeks information into in relation to one legal file for a specified period, being approximately 1 month. However, he notes that the scope has expanded to now seek all correspondence between a particular email address and the CSO and NCAT. Preliminary inquiries were undertaken in relation to this amended request and Mr McIntosh notes that there are 80 records in the file LEGAL25251/17 which would need to be reviewed in order to confirm whether the record is responsive, namely whether it contains documents between the email address specified in the amended application for the relevant period. Mr McIntosh estimates that reviewing this information would still take approximately 7 hours, based on an estimated 5 minutes per document.
6. Mr McIntosh notes that the amended application now no longer requests access to the documents originally referred to in item 6b and he has therefore not made any separate estimate for this request. He states that, in respect of item 6c as originally framed, which refers to information in relation to the Appeal Panel proceedings referred to as AP19/51762, this information is still requested and he notes this appears to correspond with the proposed amended 6b. Mr McIntosh notes that his earlier affidavit did not address the time that would be required to deal with this aspect of the application but it would be a relatively easy task to identify the legal file relating to the Appeal Panel proceedings. He states that this would capture any document in which any identifiable officer of the respondent was providing instructions to the Crown Solicitors Office, and he therefore considers that a significant amount of responsive information would be identified in response to this part of the amended request. He also states that he believes much of the responsive information would be subject to a claim for legal professional privilege.
7. At the hearing, Mr McIntosh was cross examined in relation to paragraph 37 of his second affidavit, where he made the assessment of 7 hours based on estimated 5 minutes per document. Mr Zonnevylle put to Mr McIntosh that he did not accept this estimate. Mr McIntosh did not resile from this evidence.

Item 7: Public funds used/ costs for DoJ's external legal services for matters concerning Zonnevylle

1. In his original application, Mr Zonnevylle requested access to the following information: a. All public funds used/all costs for DOJ's external legal services/ representation/ consultation for all matters concerning Zonnevylle for: i. the year 2017 ii. the year 2018 (including NCAT 2019/00356297) iii. the year 2019 (including AP 19/51762) b. All public funds used/all costs for DoJ's external legal services/ representation/ consultation for all: i. NCAT GIPA application review for the year 2017 ii. NCAT GIPA application appeals for the year 2017 iii. NCAT GIPA application review for the year 2018 iv. NCAT GIPA application appeals for the year 2018 v. NCAT GIPA application review for the year 2019 vi. NCAT GIPA application appeal for the year 2019 NOTE: these details are not to be consolidated as one record. Access is sort for those documents details costs.
2. It his correspondence of 8 February 2020, Mr Zonnevylle proposed revising item 7a and requested that the respondent provide separate estimates of time required to undertake 7a and 7b. The respondent estimated that it would take four hours each to conduct searches for information responsive to 7a and 7b.
3. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend this item by confining the request to "TAX INVOICES". He also noted as follows: On the caveat that the review times are not significant. Should the review terms be more than two or three hours it is requested that: c. the number of proceedings be stated for each year to further assist with amending the scope of the application if required.
4. Mr Zonnevylle also stated as follows: NOTE: In the GSE Act employed McIntosh affidavit is stated at pg19 item 96i one that in the previous financial year OGIP represented the DCJ in the NSW Civil and Administrative Tribunal in 16 applications for administrative review under the GIPA Act and PPIP Act and This is not a substantially high number. Extrapolating this figure to previous years would imply that the numbers of captured proceedings would not be very high. NOTE: It is not logical to the SRNPA that OGIP would not request these invoices from DoJ accounts who arranges payments of these invoices. Accounts would be highly organised to search for and produce tax invoices.
5. These latter 'Notes' do not change the focus of the request but rather represent submissions made as to why the request is reasonable.
6. In his first affidavit, Mr McIntosh states that to search for the information requested in this item, an officer of OGIP would need to manually review One Trim files for invoices and/or records of costs attributable to the information requested. He noted that it would be necessary to review emails as invoices are not always filed on the respondent's document review systems. He estimates that it would take 3 hours to undertake these searches.
7. In his second affidavit, Mr McIntosh stated that he did not consider the proposed revision would have any material impact on the time that would be required to search for and compile this information as it would still be necessarily necessary to manually review One Trim files for invoices and to review emails. In other words, the revision did not alter the nature of the searches to be undertaken and he still estimated that this would take approximately three hours. He stated that this would be a very conservative estimate and it may take it several hours longer.
8. When he was cross examined on this, Mr Zonnevylle questioned why this information would not be contained within a single area, namely in the accounts department. Mr McIntosh responded that this was how the records were held and that they were not filed in a central system but by reference to each of the files.

Items 8, 9 and 10: Documents relating to a large box sent to the respondent by said Mr Zonnevylle

1. It is convenient to deal with these three items under one heading because they all relate to an incident where Mr Zonnevylle sent a box to the respondent which was referred to as containing "rubbish" or "garbage" in respect of which it is stated that the staff who were required to open the box were distressed by having to do this and that this was harassment, intimidation and an act designed to menace cause fear and distress.
2. Item 8, as originally framed, sought access to the following information: Evidence for statements by Cobbin: b. the large box (from Zonnevylle) received was filled with "garbage" c. the letter being buried amongst the "rubbish" in the large box d. the recipient was required to sift through the "rubbish" in the large box e. the size of the large box caused the recipient to feel unsafe f. the recipient was concerned that the rubbish was being used to conceal hazardous substances or other materials
3. The respondent estimated that it would take approximately 1 hour for searches to be conducted for information that was responsive to item 8. In his first affidavit, Mr McIntosh considered that this estimate was reasonable because it would be necessary to undertake searches of the mailbox of Ms Cobbin as well as the generic email address accounts for the OGIP team and relevant containers in the document management system, One Trim, for the legal team in the department. He stated that he could not give an estimate for how much time it would take to review the responsive information without knowing the volume and nature of information identified as being responsive.
4. Item 9 as originally framed was as follows: a. identity of recipients/staff who were directly required to open the large box b. safety procedures required for items (parcels/envelopes or otherwise) received from Zonnevylle c. safety protocols/procedures followed by the recipient due to concern that the rubbish was being used to conceal hazardous substances or other material in the large box d. formal incident report for the large box (incident report generated by this harassing, intimidating, menacing fear causing, distressful event)
5. This request was not revised, and it was estimated that it would take approximately 30 minutes for searches to be conducted for information in response to item 9, noting that the searches for item 8 would also likely identify some of the information responsive to item 9.
6. In his first affidavit, Mr McIntosh stated that he did not consider 30 minutes to be a realistic estimate of the time that would be required to undertake searches for the information. He noted that, in particular, there would be challenges in identifying the relevant personal information involved, given the passage of time that had passed since the incident referred to. In his view, a reasonable estimate would be 4 hours of time as searches would need to be undertaken in computer drives, on the DCJ Internet and the specific OGIP officers involved. He also stated there would not be possible to give an estimate of the time that would be required to review the responsive material without knowing the volume and nature of the responsive information. Mr McIntosh stated that at least one officer involved is currently on extended leave in it and there would be a need to consult this officer as part of the research and review process.
7. Item 10, as originally framed, was in the following terms: a. All OGIP staff who perceived that the sending of the large box was harassment, intimidation and an act clearly designed to menace cause fear and distress b. Written complaints from staff stating that the large box was harassing, intimidating, an act clearly designed to menace, cause fear and distress c. details of recipients/OGIP staff who subsequently i. were given/sought counselling because of the large box ii. required to leave the office that day is a consequence of the large box iii. who called in sick the following days citing the receipt of the large box the reason for their required sick leave d. List of all staff in the Office of the General Counsel/OGIP feeling fearful, unsafe and experiencing stress from the large box e. Report from Cobbin to superior(s) detailing the safety issue of the large box f. Directives/action taken by the General Counsel/Secretary concerning the large box g. all Department of Justice memos/notifications/directives known by Cobbin/OGIP referring to Zonnevylle
8. The respondent estimated that it would take approximately 3 hours to search for information responsive to item 10.
9. Mr Zonnevylle proposed revising the scope of this request by document dated 29 March 2020 by removing the requests in 10a, c and d.
10. In his first affidavit, Mr McIntosh stated that the estimate of three hours to undertake searches for the information responsive to item 10, as originally framed, was in his view conservative, given the passage of time since the relevant event had passed. He acknowledged that the proposed revisions would likely reduce the amount of time required to undertake searches, however, still considered that searching for records responsive to the revised item 10 would take around 3 hours in line with the estimate originally given. He noted that there would be difficulties in searching historical records of sick leave and absences. He further stated that he was not able to provide an estimate of the time that would be required to review information responsive to item 10 without having an idea as to the volume and nature of the responsive information. He considered that such review would be time consuming, particularly as it would relate to information about staff complaints. He would expected these complaints to include sensitive personal information of staff that would require careful consideration and extensive third-party consultation to be undertaken.
11. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend these items to now request the following: a. Any documents files on the large box incident as detailed in Cobbin's May 27, 2019 letter. Those documents files should include: i. Cobbin's case file for the "large box" incident ii. Cobbin's incident file for the "large box" incident iii. Cobbin's police report for the "large box" incident iv. Cobbin's correspondence with health and safety v. Cobbin's correspondence with Kaban or her secretary/ office manager/ PA b. any DEDICATED/SPECIFIC file Cobbin has on Zonnevylle (This file would reasonably contain those NSWPF complaints and documents and documents related to search Zonnevylle's UCC vexatious conduct and related material. This file is likely to have been shared/distributed to other agencies and is likely to include opinions about Zonnevylle) c. any report/directive/memo/presentation Cobbin has made on Zonnevylle d. any reports concerning the "large box" incident sent by Cobbin to i. the justice secretary or deputy secretary ii. the Justice Minister iii. gipa@det.nsw.gov.au iv. any @icare.nsw.gov.au email address NOTE: GSE Act employed Cobbin could assist with the narrowing of the scope of this item by advising the locations of these documents.
12. In his second affidavit, Mr McIntosh notes that Mr Zonnevylle seeks to consolidate the three items into a single item. He states that, in his view, the revised item replacing items 8, 9 and 10 broadens the scope of the information requested. He notes that, while these items were originally framed in very specific terms, the proposed revised request is expressed in much broader terms seeking access to any documents/files relating to the "large box" incident. He also notes that the proposed revised item contains new requests for information that were not reflected in the original access application, including the requests for any "dedicated/specific" file Cobbin has on Zonnevylle.
13. Mr McIntosh stated in his previous affidavit, that he estimated that searches for each of these items would take one, four and three hours respectively, making a total of 8 hours. In his second affidavit, Mr McIntosh states that he does not consider that the consolidation of these items would reduce the amount of time required and that he remains of the view that 8 hours is likely to be an accurate estimate of time required to undertake searches and to identify the information. He also notes that a larger volume of information is likely to be responsive to the proposed consolidated item and this would increase the time required to review the information in order to determine the application.
14. Mr McIntosh was cross examined about this evidence. He said that he was not sure whether Ms Cobbin had a dedicated file and he had not asked her about this is this was not required at this stage of the application. Despite this, Mr McIntosh stated that he does not believe that Ms Cobbin has a dedicated file on Mr Zonnevylle. Mr McIntosh was asked whether the respondent kept a file on vexatious litigants. Mr McIntosh said he had not asked Ms Cobbin specifically about this, but he had undertaken searches himself and he was aware there was no file on vexatious litigants and Zonnevylle. Mr McIntosh was asked whether he was aware of a PowerPoint presentation called "The tale of a vexatious litigant" and whether this would include personal information about him. Mr McIntosh stated that he was not aware of this.

Item 11: General safety precautions for staff when opening mail

1. Item 11 of the application, as originally framed, requested access to the following information: a. general safety precautions required of Justice staff when opening mail or couriered items (including large boxes) b. General safety precautions required of Justice staff when receiving/opening any document/parcel without the sender's details being complete
2. In his correspondence of 8 February 2020, Mr Zonnevylle proposed amending this request by substituting the reference to "Justice staff" with references to "information and privacy unit staff".
3. The respondent estimated it would take 30 minutes to conduct searches for documents responsive to item 11 and Mr Zonnevylle was notified of this by a letter dated 25 February 2020.
4. In his first affidavit, Mr McIntosh stated that he agreed 30 minutes was a reasonable estimate for the time required to undertake searches of the Department's intranet.
5. In his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend this item as follows: a. DoJ policy on safety procedures for handling mail or Courier items including large boxes cartons being received at any DOJ premises b. any separate OG policy on safety procedures for handling mail or Courier items including large boxes cartons being received at any DOJ premises
6. Included in the commentary to this amended request, Mr Zonnevylle makes submissions about what he understands should be publicly available or should be subject to either proactive information release or informal information release. He notes as follows: It is request [ed] that either the links to this information or the provision of this information or the linking to the DOJ website is provided at no cost If this is unreasonable or incorrect please provide detailed reasons why it is considered as such.
7. In his second affidavit, Mr McIntosh states that the revisions to item 11 do not materially change the information that is being requested and therefore do not alter the searches that will be required to be undertaken. He remains of the view that 30 minutes is a reasonable estimate of time that would be required to search for item 11, even with the proposed changes.

Items 12 and 13: Information about behaviour of Mr Zonnevylle and documents relating to complaints and directives about emails from Mr Zonnevylle to be blocked

1. It is convenient to deal with these items together because they relate to similar subject matter and because Mr Zonnevylle has most recently amended his request to seek the same information now requested in respect of the consolidated version of items 8, 9 and 10. In other words, Mr Zonnevylle no longer presses his requests for this information but details about this are included for completeness and to outline the history of the application.
2. Item 12 of the original application requested access to four items of information described as details of the lengthy ongoing campaign of unacceptable behaviour by Zonnevylle, details of specific staff targeted by Zonnevylle, list of OGIP staff that perceived behaviour of Zonnevylle as menacing, intimidating and harassing conduct, and any formal complaints concerning Zonnevylle.
3. The respondent estimated that searches for information responsive to item 12 would take three hours. In his first affidavit Mr McIntosh stated that 30 minutes would be a reasonable estimate for the time required to undertake searches for the information responsive.
4. Item 13, as originally framed, requested memos/directives requiring email addresses from Zonnevylle to be blocked, a list of OGIP staff with authority or access to junk folders and complaints made by OGIP staff concerning Zonnevylle's 21 May 2019 email.
5. The respondent estimated it would take approximately 30 minutes for searches in response to item 13, noting that some of the information in response to this item would likely be captured by searches in response to other parts of the application. In his first affidavit, Mr McIntosh stated that he considered the original estimate of 30 minutes to be overly conservative and he estimated that the time would be more likely to be approximately 2 hours, given the length of time that had passed since the events referred to and because he was aware that at least one officer involved was currently on extended leave. He therefore considered it would be necessary for the IDS to undertake searches.
6. As noted, in his correspondence to the Tribunal and the respondent received on 25 June 2024, Mr Zonnevylle proposed to amend this request for items 12 and 23 and he now relies on the amended version, which was substituted for items 8, 9 and 10.
7. In his second affidavit, Mr McIntosh notes that Mr Zonnevylle does not appear to be pressing items 12 and 13 but, in so far as these items are being replaced by the amended request replacing items 8, 9 and 10, Mr McIntosh repeats the comments that he made in relation to those revised requests.

Conclusions

1. As noted above, Mr McIntosh states in paragraphs 90 to 92 of his first affidavit that the total estimates to search for information responsive to the application, as originally framed and amended, is 33 hours, which does not include the time already spent and the additional time that would be required to collate and index the responsive records, review those records to assess whether there was an overriding public interest about disclosure, conduct consultation with third parties, draw a notice of decision and prepare documents for release. He notes that this review would need to be undertaken by a senior officer of OGIP, having regard to the volume of information involved and the extensive interactions and engagements involving Mr Zonnevylle over the relevant period of time, the complex issues of legal professional privilege and the likelihood of personal information being captured in circumstances where Mr Zonnevylle seeks access to information about staff who have made complaints or have been distressed by incidents about his conduct.
2. In his second affidavit, Mr McIntosh considers the impact of the proposed amendments in dealing with each item requested by Mr Zonnevylle. He concludes that the proposed amendments to items 1 to 5 do not materially change the estimates he made in his first affidavit, although he notes that item 5 has been expanded to include "any file Cobbin has gathered compiled constructed on Zonnevylle". Mr McIntosh has not made an assessment in relation to this estimate. It appears that he has reduced his estimate from 11 hours to seven hours in respect of item 6. He has not changed his estimate relating to the searches for the information responsive to item 7 but notes that the original estimate of three hours is likely to be very conservative. Mr McIntosh has not changed his opinion in relation to the estimate of time to search for information that is responsive to the requests in items 8, 9 and 10, which remains a total of 8 hours. Nor has Mr McIntosh changed his view in relation to item 11 although he notes that Mr Zonnevylle now no longer presses items 12 and 13. As such, the estimate Mr McIntosh gave in respect of these items, which totalled two hours and 30 minutes, no longer applies.
3. Accordingly, Mr McIntosh's evidence is that as a result of the amendments proposed by Mr Zonnevylle as part of the proceedings, his estimate of the time that would be taken to search the respondent's records for information responsive to the requests in items 1 to 11 would be in the vicinity of 37 hours as opposed to 44 hours.
4. Mr McIntosh's first affidavit also includes detailed evidence about the resources of the respondent. He notes that the respondent commenced on 1 July 2019, bringing together the former Department of Family and Community Services and Justice. He states that OGIP provides services to a number of major department or divisions being: Courts and Tribunal services, youth justice, child protection, housing, disability services and corrective services NSW. He also notes that OGIP provides legal services to a number of separate statutory agencies and independent bodies including: the Office of the Children's Guardian, NSW Ageing and Disability Commission, the Office of NSW Advocate for Children and Young People, NSW Housing Appeals Committee, State Parole Authority, Crown Solicitor's Office, the Legal Profession Admission Board, the Anti-Discrimination Board, Inspector Custodial Services, Office of the Legal Services Commissioner, Public Defenders Office, Legal Services Council, Commissioner for Uniform Legal Services Regulation, Office of General Counsel and Crown Advocate and the NSW Trustee and Guardian.
5. Mr McIntosh notes that in the previous financial year, OGIP: handled the receipt and production of documents to various courts and Tribunals in response to 3,989 subpoenas, statutory orders and notices issued to the respondent, responded to 668 applications for redress under the Commonwealth National Redress Scheme for Survivors Of Child Sexual Abuse, determined 4,048 formal access applications under the GIPA Act and 2371 informal applications, determined 25 applications for internal review under the GIPA Act, responded to 99 requests for consultation received from other agencies under the GIPA Act, undertook 28 investigations and internal reviews under the PPIP Act, dealt with 6 applications for access or amendment to personal information under the PPIP Act, represented the DCJ in NCAT proceedings in 16 applications for administrative review under the GIPA and PPIP Acts and prepared 342 pieces of written legal advice.
6. Mr McIntosh states that each of the OGIP functions carries a significant administrative burden requiring the registration of correspondence, data entry into records management systems, banking and accounting functions, preparing correspondence and managing very large volumes of email traffic. Mr McIntosh estimates that OGIP receives approximately 32,000 emails annually to the shared email boxes alone. He notes that OGIP currently employs 48 full time equivalent staff, and the average caseload of an officer is 18 matters in total at any given time.

Findings

1. Mr McIntosh was a credible and impressive witness. He holds a senior position with the respondent and is the principal solicitor in OGIP with responsibility of oversight of the team. He has been involved in assessing information and privacy applications for over 8 years, both in the respondent and for the NSW Police Force. He has been involved in the consideration or oversight of thousands of GIPA Act applications. I am satisfied that he is very experienced in making assessments of applications under the GIPA Act, which includes making assessments about how to search for information that may be responsive to the request. I am also satisfied that he is familiar with the respondent's information and case management systems and is therefore qualified to make assessments about the most efficient and effective searches that can and should be undertaken to ascertain whether the respondent holds or may hold information that is responsive to requests for information under the GIPA Act. Throughout his cross-examination of Mr McIntosh, Mr Zonnevylle raised issues about whether Mr McIntosh was impartial and objective in preparing his affidavit and giving his evidence, or whether he was being directed or was being influenced by Ms Cobbin.
2. Mr McIntosh denied this. He also gave evidence that he had not discussed the application with Ms Cobbin and had independently formed views about the matters which were in dispute. I accept this evidence and further find that Mr McIntosh's approach to dealing with the application and the evidence he gave to the Tribunal, both in writing and orally, demonstrated this. For instance, it was apparent from Mr McIntosh's affidavits that he had made independent assessments about the searches that would need to be taken and the time and work that this would be likely to involve. He either relied on his own knowledge, which I accept is relevant and carries weight because of his extensive experience, or consulted with others where appropriate, such as the IDS. He came to different conclusions on a number of occasions, both in favour and against Mr Zonnevylle. He provided the basis for his opinions.
3. Mr McIntosh's oral evidence was clear, and he answered questions in his cross examination in a direct and generally fulsome manner. On occasion he was asked long questions with multiple issues, and he endeavoured to answer those questions by clarifying the question.
4. Mr McIntosh's role is to have oversight of GIPA Act applications and part of that involves instructing the Crown Solicitor's Office in these proceedings. One of the issues raised was that Mr McIntosh, as the principal solicitor instructing Ms Mattes from CSO, had instructed her to make an application for summary dismissal of the proceedings. This does not compel the conclusion that Mr McIntosh evidence should not be accepted. This application must be understood in the context of the other proceedings, the submissions made by Mr Zonnevylle in support of his application and in the context that Mr McIntosh has formed the view, demonstrated by his evidence, that dealing with the access request would involve a substantial and unreasonable diversion of resources.
5. It is also relevant to note that during the course of the proceedings, the respondent agreed to consider a further amended request for access and filed further evidence considering these amendments, despite the fact that Mr Zonnevylle had already been given this opportunity at the time of his original application. At the time of Mr Zonnevylle's application and since the commencement of these proceedings, the respondent has expended considerable resources considering and undertaking searches to ascertain what further searches would be required to identify information that was or may be responsive to the original and amended requests. This was presumably on instruction from Mr McIntosh. Having regard to the evidence of Mr McIntosh, I am satisfied that these searches were genuine, thorough and relevant.
6. In summary, Mr McIntosh's evidence and approach was self-evidently objective, thorough and credible.
7. This is also demonstrated by the evidence given by Mr McIntosh at the hearing, when questioned by Mr Zonnevylle about this issue, where he readily agreed that a substantial proportion or the majority of the information that would be likely to be responsive to items 1 to 6 and 8 to 10 would include Mr Zonnevylle's personal information. I therefore find accordingly.
8. Mr McIntosh also readily agreed that this may be relevant to public interest considerations about what would be reasonable in dealing with a GIPA Act application.
9. Mr McIntosh gave evidence that the time estimated to search the respondent's records for information responsive to Mr Zonnevylle's application, as amended, would be in the vicinity of 37 hours. This is an estimate based on the terms of each of Mr Zonnevylle's requests, Mr McIntosh's knowledge of the respondent's information and case management systems, his knowledge of its operations and inquiries he is made from others, including IDS. Mr McIntosh's evidence is an estimate, which may ultimately be overly conservative or overly liberal, but I accept this evidence and I am satisfied that his estimates are reasonably based. I am satisfied that Mr McIntosh has taken a robust and thorough approach to making these estimates.
10. Accordingly, I am satisfied that the time to deal with Mr Zonnevylle's application by searching the respondent's records may be in the vicinity of 45.5 hours, being 37 hours assessed for further searches, 8.5 hours for the time already spent on searches.
11. Mr McIntosh's estimates do not include the time that would be taken to review the information found to be responsive, to undertake the necessary consultation with third parties and to assess the public interest considerations, including whether that information includes documents that would be the subject to legal professional privilege or includes personal information relating to third parties or staff. Given the nature of the information that may be responsive to the requests, I accept Mr McIntosh's evidence that any review and subsequent determination of Mr Zonnevylle's GIPA Act application is likely to be substantially more than the estimate of time made to search the respondent's records for responsive information. I am also satisfied that, given the complexity of the issues likely to be involved, the respondent will need to allocate a more senior officer or officers to the search and review process. While it is difficult determine the possible total processing time for Mr Zonnevylle's application given the respondent has not completed the searching and identification process, I am satisfied that collating, reviewing, consulting and making decisions on disclosure is likely to be at least as time consuming as the estimated searching process and may take weeks given it is likely there will need to be a consultation process and consideration of legal professional privilege.
12. As noted above, I accept that a significant number of those documents would be likely to include Mr Zonnevylle's personal information. I also accept that Mr Zonnevylle seeks particular documents because of his concerns about the conduct of Ms Cobbin in making a complaint about him to NSW Police.
13. I find that Mr Zonnevylle was given several opportunities between January and 28 May 2020 to amend his application, but he did not do so. For the reasons outlined below, I am satisfied that the opportunities given were reasonable in the circumstances.

Legal principles

1. Section 60 of the GIPA Act confers a wide discretion on agencies to refuse to deal with an application in prescribed circumstances. In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel stated at [43]: Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)).
2. As observed by the Tribunal in Loussikian v University of Sydney [2018] NSWCATAD 140 at [10], the power to refuse to deal with an access application is a powerful discretion. According to Senior Member Montgomery, the power should be used as "a last resort after making every attempt to assist an applicant to narrow their request". Section 60(4) provides that before refusing to deal with an application under s 60(1)(a), the agency must give the applicant a reasonable opportunity to amend the application. The nature and extent of this obligation, which is a pre-condition to the exercise of the discretion, is a central issue in dispute. Mr Zonnevylle contends he has not been given a reasonable opportunity and he disputes that the respondent has made every attempt to assist him. In contrast, the respondent submits Mr Zonnevylle has been given many opportunities to amend his application and despite this, he has failed to submit revised applications that materially narrow the scope of his requests.
3. This is a question of fact which will be determined by reference to the terms of each of the requests, the evidence of communications between Mr Zonnevylle and the relevant officers of the respondent and any amended requests subsequently made. This is a relevant issue in determining the correct and preferable decision for the purposes of s 63 of the ADR Act.
4. There is no definition of what is "an unreasonable and substantial diversion of resources" and in 2018 the GIPA Act was amended by the Government Information (Public Access) Amendment Act 2018 to, amongst other things, insert sections 60(3A) and (3B). The amendments to the GIPA Act followed the Statutory Review: Government Information (Public Access) Act 2009 and Government Information (Information Commissioner) Act 2009 published in July 2017. The Review noted that there was uncertainty for agencies and applicants about the application of s 60(1)(a) and it was recommended that the provision be amended to provide a list of non-exhaustive factors as guidance for decision-makers. Those non-exhaustive factors recommended comprised five considerations. These considerations were ultimately inserted in the GIPA Act, although it is relevant to note that the factors, as drafted, do not carry equal weight and emphasis.
5. Section 60(3A) sets out a non-exhaustive list of the factors that may be taken into account when considering whether a request for access to government information constitutes an unreasonable and substantial diversion of an agency's resources. Generally speaking, these factors relate to the burden on an agency in dealing with an application. Section 60(3B) refers to two considerations, namely the general public interest in favour of the disclosure of government information, which is in the same terms as s 12, and the demonstrable importance of the information to the applicant, that is, whether it is personal information or whether it could assist the applicant in exercising any rights under any Act or law. It is plain from s 60(3B) that these considerations prevail unless the considerations in subsection (3A), on balance, outweigh the subsection (3A) considerations.
6. Prior to this amendment, the Administrative Decisions Tribunal (in Cianfrano v Director General, Premier's Department [2006] NSWADT 137 ("Cianfrano")) considered the factors that may be taken into account in the context of the former Freedom of Information legislation when determining whether dealing with an application for access would "substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions". The factors identified included at [63]: (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.
7. In Colefax v Department of Education and Communities No 2 [2013] NSWADT 130 ("Colefax"), while the Tribunal found that "most" of the considerations identified in Cianfrano were equally applicable to the consideration of whether a request under the GIPA Act constituted an unreasonable and substantial diversion of the agency's resources, it was noted that an access applicant under the GIPA Act has a statutory right to access government information and this may result in the differing weight and importance being accorded to the Cianfrano factors.
8. The application of ss 60(3A) and (3B) was considered by the Tribunal in Ruyters v Commissioner of Police [2020] NSWCATAD 223 ("Ruyters"). Senior Member Ransome found that the factors in Cianfrano and Colefax continue to be relevant to consideration of whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources. It was also noted that the review of a decision to refuse to deal with an application under s 60(1)(a) does not require the decision-maker to undertake the balancing test set out in s 13 of the GIPA Act. The task to be undertaken is to balance the considerations in s 60(3A) and (3B) which is "similar" to the task that the Tribunal routinely undertakes in applying the public interest test in s 13 of the GIPA Act, although in those cases, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure. As noted by Senior Member Ransome, at [24]: The tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency's resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources.

Was Mr Zonnevylle given a reasonable opportunity to amend his application?

1. Mr Zonnevylle submits that he was not given a reasonable opportunity to amend, or alternatively, reframe his application for access as the respondent did not provide reasonable assistance to allow him to properly reformulate his claim or to narrow the scope of the request such that it would not constitute an unreasonable and substantial diversion of the respondent's resources. Mr Zonnevylle submission is based on a claim that the respondent did not comply with its obligations under s 16.
2. This is a question of fact and it is relevant to consider the detail of the communications between Mr Zonnevylle and the respondent in relation to this issue.
3. Mr Zonnevylle first made his application in December 2019. The detail of the original request for access is referred to above. They were 13 items requested and in respect of each of the items, there were multiple categories of information requested. When these subcategories are taken into account, it is apparent that there was in excess of 45 categories of information, which may have been contained in a document or a number of documents. The access request was very specific in some respects, because it referred to identified legal proceedings and correspondence. However, in other respects it was unclear or open ended because it required analysis and possibly multi-layered searches, an example being the request for documents detailing evidence of statements by Cobbin about a "large box" delivered to the respondent by Zonnevylle (item 8) and requests requiring the officer searching the records to make an assessment about whether the information was a complaint about harassment and whether staff were targeted or perceived the conduct of Mr Zonnevylle was menacing, intimidating and harassing conduct (for instance as in items 5, 10 and 12).
4. By letter dated 23 January 2020 the officer managing Mr Zonnevylle's request advised him that a preliminary estimate of his application indicated that it would take approximately 66 hours and 30 minutes to process the application, which included 19 hours to conduct searches for information in response to items 1, 4, 6, 8 to 10 and 13 of his application and 36 hours to conduct searches for information in response to items 2, 3, 7, 11 and 12 of the application. The officer included particulars of the estimated time and the search tasks that would be undertaken in respect of each of the items.
5. The letter noted that the estimate of 66 hours and 30 minutes did not include the time it would take to review the records located in response to the application, consider any relevant public interest considerations against disclosure and the time that it would take to conduct the public interest test. It was also noted that the estimate did not include consultation with third parties that would be required under s 54 of the GIPA Act. The estimate included a table, which comprised particulars of the time spent, the time estimated to be spent searching the respondent's records, and the time it was estimated would be taken to weigh the balance of the public interest factors both for and against disclosure in drafting the decision. This was estimated at five hours. The officer did not include any estimate for the review of the documents and in the table, it is stated that this was unknown and dependent on the material located.
6. Mr Zonnevylle was invited to narrow the scope of this application by considering a combination of limiting any references to the staff of the OGIP team, as opposed to DoJ staff more generally, and limiting his application to a combination of three item only, for example items 1, 3 and 10 of the application. He was asked to respond by 21 February 2020.
7. Mr Zonnevylle responded by 8 February 2020 proposing some amendments to items 2, 3, 5, 7, 11 and 12. He did not reduce the items as suggested and maintained his request for each of the items included in the original application, with limited amendments to 6 of the items. He also requested the respondent to provide an estimated search time for each of the proposed amendments so he could make an informed decision concerning the task of rescoping of his application. He also asked for an estimated search time for three possible amendments to item 6.
8. By letter dated 23 January 2020 (which was actually dated on about 25 February 2020 because this was the date it was emailed), the officer provided particulars of the time it was estimated would be taken to search for the amended requests in items 2, 3, 5, 7a and 7b and items 11 and 12. The officer provided a further estimate in respect of the proposed amendment in respect of item 6a. The officer did not provide an estimate for 6b and sought clarification about the proposed amendment which referred to "functions conferred" on officers of CSO and NCAT under the GIPA Act. The officer sought clarification about the requests relating to the "functions" of the officers and, in particular, whether Mr Zonnevylle was seeking information about the names of officers who conducted searches for each of the files.
9. Mr Zonnevylle responded by email dated 26 February 2020, requesting clarification as to why the letter was dated 23 January 2020, noting the estimates given for those items, stating that he had "grave concerns" about the estimate for item 7a and noting the functions that he was referring to in respect of item 6 were the functions exercised by officers set out in Schedule 4 of the GIPA Act. In addition, Mr Zonnevylle asked the officer to provide him with the officer's government ID number and to advise of the senior officers who have oversight of his access application.
10. By letter dated 11 March 2020, the officer acknowledged receipt of Mr Zonnevylle's letter dated 8 February 2020, confirmed that the letter emailed on 25 February 2020 was erroneously dated 23 January 2020 and responded to various issues raised in Mr Zonnevylle's letter.
11. In summary, it was explained that the auto update function was switched off in the officer's correspondence which means it did not update the letter, the officer explained the estimate for the searches in respect of items 7a and 7b and noted that these estimates did not include the time it would take to review the information resulting from the searches, the estimates given in respect of item 6 were clarified and the officer again sought clarification about the use of the meaning of the request about the CSO and NCAT officers' exercise GIPA functions. The officer asked whether Mr Zonnevylle was "actually seeking" any documentation or correspondence detailing the names of the CSO and NCAT officers who had any involvement with the matters outlined within his proposed scope. Finally, the officer declined to provide Mr Zonnevylle with his/her government identity number and noted that he/she was authorised to deal with the application. The officer also declined to provide details of the senior officer who had oversight of the access application on the basis that he/she was the person who was dealing with the access application and was authorised to do so.
12. Mr Zonnevylle responded by email dated 12 March 2020. He took issue with the explanation as to why the officer had disabled the auto update function. He also raised concerns about a number of other issues and indicated that he required actual processing time estimates so he could make an informed decision about rescoping his application. Mr Zonnevylle again requested details of the officer's supervisor and asked for information about the officer's identity. When he did not receive a response to this email, Mr Zonnevylle send an email dated 27 March 2020 indicating that he had "legitimate concerns" about whether the functions of the officer had been or were being exercised in good faith.
13. The officer responded by letter dated 27 March 2020. Mr Zonnevylle was notified that OGIP would restrict future communication with him to Australia Post rather than by email because of the nature of his correspondence. The officer confirmed that he would not provide Mr Zonnevylle with his government identification number. Mr Zonnevylle was again invited to consider narrowing the scope of his application to a combination of three items. He was advised that this would reduce the overall estimated processing time of the application by decreasing the amount of time required to conduct searches which would also reduce the overall volume of information located in response to those searches. Mr Zonnevylle was requested to provide the officer with the proposed amended terms of his application by 28 April 2020.
14. Mr Zonnevylle responded by 29 March 2020 and advised he did not believe he was being afforded reasonable advice and assistance to make an informed decision to rescope or amend his access application. In this email, Mr Zonnevylle noted that the officer had identified for instance that Mr Zonnevylle should consider reducing his search to three items, namely items 1, 3 and 10. Mr Zonnevylle noted that according to the estimates given, the search time for these items was 9 hours. Mr Zonnevylle asked the officer to confirm that this was the search time. He requested the officer to advise of the acceptable search time and the acceptable processing time for the access application to assist him to make an informed consent about amending or rescoping his access application. Mr Zonnevylle stated that he was being harassed and bullied to force him to rescope his application and that he reluctantly proposed to rescope and amend the application as set out in his attached request.
15. This amended request was dated 29 March 2020. This amended request is referred to and considered by Mr McIntosh in his first affidavit, as set out above. Mr Zonnevylle removed the reference to item 13 but otherwise did not reduce the number of items requested, nor many of the sub items. Items and subitems still requested in excess of 45 categories of information in total.
16. The officer responded by letter dated 24 April 2020 suggesting that, in the alternative to limiting the terms of his application to a combination of three items, Mr Zonnevylle may wish to consider limiting the terms of his application such that the combined total search time is no more than 15 hours. It was further noted that it would not be possible, without finalising the searches, to know the volume of information that is likely to be located as a result of those searches. The officer stated that if Mr Zonnevylle did not provide a reasonable scope in response to this letter, he would proceed to make a decision in relation to the access application. It was requested that Mr Zonnevylle proposed provide any proposed amended terms by 28 May 2020.
17. Mr Zonnevylle did not do so, and the delegate made the decision refusing his application for access on 29 May 2020.
18. As already noted, during the course of the proceedings, Mr Zonnevylle indicated that he was prepared to further amend his application for access having regard to the evidence provided by Mr McIntosh in his affidavit and at the hearing. The respondent agreed to this proposal. Mr Zonnevylle provided proposed further amendments to his access application and Mr McIntosh considered these proposed amendments in his affidavit of 12 July 2024. His evidence about the proposed amendments is set out above.
19. The obligation of an agency to provide assistance and advice under s 16 is focussed on assisting an access applicant in understanding what information is already publicly available, advice on how to make an application for information that is not publicly available, as opposed to the content of the application, and advice about dealing with the Information Commissioner any relevant guidelines published by the Information Commissioner. The advice and assistance to be provided is only the advice and assistance that it would be reasonable to expect. In this case, Mr Zonnevylle was familiar with the nature and scope of the non-publicly available information because his access request almost entirely related to his dealings with the respondent in the relevant period.
20. The difficulty with Mr Zonnevylle's access application is that his requests were broadly framed, in most cases covered a 15-month period and required analysis and multi-layered searches. Mr Zonnevylle disagreed that the estimates were reasonable but, in any event, requested that the respondent advise what would be reasonable, so he could make a decision to rescope his request. The officer had already provided Mr Zonnevylle with his estimate for the searches in respect of each item. Details were provided about how these estimates were calculated. Mr McIntosh also provided evidence in support of the estimates.
21. Mr Zonnevylle was provided with as much information as the respondent could provide about these matters. The part of the processing time that could not be quantified or even estimated was the time to review and further process the documents that may be located in response to the request. The respondent contends, and I accept, that this aspect of the processing of the application cannot be properly assessed, or even estimated, until the scope of volume of the documents that respond or may respond to the search is known.
22. Section 53 of the GIPA Act outlines the searches that need to be undertaken and having regard to the affidavits of Mr McIntosh, I am satisfied the estimates have been made by reference to these search obligations. Mr Zonnevylle could have, as invited, narrowed his request based on the information provided by the respondent about the search estimates for each item. The estimates provided have on their face, a logical and reasonable rationale. He did not do so. Mr Zonnevylle was also invited to amend his access request during the proceedings, having had the benefit of Mr McIntosh's first affidavit and his cross examination. Mr Zonnevylle amended his application but not materially such that the search times were still estimated to total more than 35 hours. In some cases, Mr Zonnevylle expanded the request which would have the result of increasing the volume of documents that may be responsive.
23. Mr Zonnevylle contends that the respondent, and relevantly the officer in question, was not acting in good faith. The correspondence objectively suggests otherwise. The estimates for the searches were not excessive and in some cases were only an hour or two hours. The problem is that these amounts, when calculated for the various items and sub-items, was significant. The correspondence demonstrates that the officer considered the request made by Mr Zonnevylle and responded, where possible, in a fulsome and timely manner.
24. In my view, Mr Zonnevylle had the relevant information to be able to rescope his request so that the estimated searches would be in the vicinity of 10 to 15 hours. If he had done this, without broadening the searches to include voluminous material that may respond to the access request, the total processing time would have been more modest and, in my view, would not have justified the refusal pursuant to s 60(1)(a) of the GIPA Act.
25. Mr Zonnevylle was given four opportunities to do this, including during the proceedings, and he did not do so. On each occasion the respondent expended time to consider the amended request. Each response was detailed and adequately responsive to the issues raised. Unfortunately, the communications became shorter as correspondence from Mr Zonnevylle became more critical and openly combative. The correspondence from the respondent and the steps taken to engage with Mr Zonnevylle does not support a contention that the respondent was acting in bad faith or that the assistance being provided was unhelpful or part of a strategy to obstruct Mr Zonnevylle in making his access application.
26. Accordingly, I am satisfied that Mr Zonnevylle was given a reasonable opportunity to amend his application before the respondent made the decision to refuse to deal with it. I am also satisfied that the respondent provided Mr Zonnevylle with adequate advice and assistance sufficient for him to be able to reframe an access application to which the respondent could respond without the application calling for an unreasonable and substantial diversion of the respondent's resources.

Section 60(3A) factors

1. The respondent submits that the considerations in Cianfrano remain relevant. While the respondent has not specified which ones, it is apparent from the affidavit of Mr McIntosh that the terms of some of Mr Zonnevylle's requests are so general or broad in nature that they are not sufficiently precise to allow the respondent to locate the documents that may respond without extensive searches to be undertaken (refer para 62(a) Cianfrano).
2. Other issues that may be relevant is the reasonableness, or otherwise, of the respondent's initial assessment and whether Mr Zonnevylle has taken a cooperative approach in redrawing the boundaries of the application (para 62(e)), the respondent's estimate of the number of documents affected by the request and the amount of officer time be expended in dealing with the application as well as the degree of certainty that can be attached to the estimate (paras 62(d) and (h)), the relevant timeframes for assessing the application (para 62(f)) and the demonstrable importance of the document or documents to the applicant (para 62(b)). This last matter is directly relevant to one of the considerations in s 60(3B) and is examined later in these reasons.
3. In Cianfrano the Tribunal held that requests involving more than 40 hours processing time would be seen as lying at the upper end of the range and, as such, a processing time that goes well beyond 40 hours may properly raise concerns (para 62(g)). Against this, in Colefax the Tribunal held that concern about processing times in excessive 40 hours may not carry as much weight under the GIPA Act because of the specific legislative purpose and the statutory right of an access applicant to have access to government information under the GIPA Act. In other words, there is no "40-hour rule" or cap and much will depend on the facts and circumstances of each case and, relevantly, the balancing exercise mandated under sections 60(3A) and (3B).

Estimated volume of information

1. Section 60(3A) does not specifically refer to the estimated time taken to process an application; however, it is self-evident that the estimated volume involved in the access application will usually impact on the time required to process the application in a corresponding manner. This is a matter of logic and common sense. For instance, if there is a large volume of documents across many sources responding to the request, processing times are more likely to be lengthy as the officer must consider each for relevance and whether consultation is required and how the public interest test should be balanced. Conversely, a small number of identifiable documents that respond may result in short processing times.
2. This is not always the case, and this can be contrasted with contentious applications which require extensive consultation or consideration of complicated or diverse public interest considerations against disclosure. Such applications will invariably result in a lengthy and potentially resource intensive process, despite the fact that the documents which respond are easily identifiable and are small in number. Similarly, requests that are general or non-specific may involve extensive resources to be expended on conducting searches, which produce a small volume of responsive information. This is no doubt why s 60(3A) has been drafted as a non-exhaustive list.
3. In the present case, the respondent submits that the volume of the information held which may respond is not known because to undertake the additional searches would require an unreasonable and substantial diversion of resources. It estimated the time taken to identify those documents through appropriate searches would be approximately 37 hours and this estimate excludes the searches already undertaken, which are in the vicinity of 8.5 hours.
4. Despite this, the respondent submits that there are several indicia that would allow the Tribunal to be satisfied that the volume of responsive information will be substantial.
5. First, the respondent points to the number of items requested, namely 13, noting that each item has several sub-items of information requested.
6. Secondly, the respondent points to the broad terms in which each of the 13 items is framed, noting that there are a number of requests that seek information over a 15-month period, and in respect of item 7, information is requested over a three-year period.
7. Thirdly, there have been extensive interactions and engagements with Mr Zonnevylle over the relevant period in respect of items 6 and 7. In this regard, the respondent relies on the first affidavit of Mr McIntosh, in particular paragraph 52, where he notes that preliminary searches of information potentially responsive to item 6 had identified approximately 135 items for containers corresponding to three of the legal files requested by Mr Zonnevylle. Mr McIntosh also notes that the request covers correspondence over the period when the respondent was involved in proceedings before the Tribunal in which the Department of Education applied for an order under s 110 of the GIPA Act. The documents responding to this request are likely to be extensive. The respondent relies on Mr McIntosh's evidence where he estimated that it would take 11 hours to undertake various steps to process the information in response to item 6, namely collating the information and reviewing the records and conducting consultation with third parties to undertake the relevant public interest balancing exercise. As a result of Mr Zonnevylle amending his application, estimates for the item 6 have now been reduced from 11 to 7 hours. However, this is still significant as item 6 is only one part of the whole access application.
8. I accept these submissions.
9. Mr McIntosh says that he is unable to give an estimate of the time it would take to process the application in respect of many of the items, but nonetheless concludes that the time taken would substantially exceed the time taken to search for the information in respect of these items. Mr McIntosh has provided details of the analysis that has formed the basis for his conclusions. For instance, in his first affidavit, Mr McIntosh has assessed that once the searches have been concluded for information responsive to item 1, he anticipated that it would take several hours to undertake a review of the material identified to confirm the material is responsive and assess the information that could be disclosed. This is because it is likely that there would be a large volume of responsive information, there would need to be consultation with the Department of Education, as well as former staff who are no longer employed by the Department, about the release of the information and complex legal issues were likely to arise, particularly around issues of legal professional privilege.
10. In relation to item 2, Mr McIntosh states that he is not able to provide an estimate of time that would then be required to review information after searches were concluded without first being able to assess the volume and nature of the records that responded to the search. However, he notes that complex issues were likely to arise relating to legal professional privilege. In his second affidavit, Mr McIntosh has made a revised estimate in respect of item 6, noting that there would be 80 rather than 135 records involved.
11. I accept Mr McIntosh's evidence that it is difficult to make an estimate about the time that would be taken to process individual items without first conducting these searches and identifying the volume of documents that may respond to the request. I also accept his evidence, based on the nature of the requests and the background to the requests referred to earlier in this decision, that the volume of this material is likely to be significant. Much of the information requested relates to legal proceedings involving Mr Zonnevylle and government departments. I therefore find it is likely that a number of the responsive documents may require consideration of whether those documents engage legal professional privilege, which gives rise to a conclusive presumption that there is an overriding public interest against disclosure (refer s 14(1), Schedule 1, clause 5 of the GIPA Act).
12. I also note that many of the documents that may be responsive to items 4, 5 and 8 are likely to raise obligations to consult under s 54 and consideration of whether the release of personal information or health information of staff members engages the public interest considerations against disclosure set out in s 14(2) and whether there is an overriding public interest against disclosure of government information in the circumstances.
13. Accordingly, I am satisfied that once the respondent concludes the searches in respect of Mr Zonnevylle, undertaking the review of the information that may be responsive will be a time consuming and lengthy process, that is likely to be at least as long as the process for conducting searches, making the time estimate for processing Mr Zonnevylle's application, as amended, to be in the vicinity of at least 70 hours.
14. Mr Zonnevylle submits that the respondent's estimate of the time that will be taken for the searches is excessive. However, he was not able to point to any evidence to support this claim and, as already noted, I have found Mr McIntosh's evidence to be cogent and credible.

Agency size and resources

1. Mr McIntosh has given evidence about the size and breadth of responsibilities of the respondent, and, in particular, OGIP, which has the central function of dealing with the respondent's obligations under the GIPA and PPIP Acts. Having regard to this evidence, I am satisfied that the respondent is a large agency, but I am also satisfied that it has a large number of statutory agencies, officeholders and independent bodies to which it must provide services.
2. These services include responding to subpoenas, statutory notices and notices issued to the respondent by Courts and Tribunals, responding to applications for redress under the Commonwealth National Redress Scheme for survivors of child sexual abuse and, in the 2022/2023 financial year, dealing with nearly 6,500 formal and informal GIPA Act access applications. According to Mr McIntosh, there are currently between 200 and 250 staff in OGIP but this converts to approximately 48 full time equivalent staff because many staff are presumably part time or have special leave entitlements that are factored into this calculation. Mr McIntosh states that OGIP staff have a caseload of 18 matters at any one time. As Principal Solicitor of the OGIP unit with oversight of the GIPA Act applications, I am satisfied that Mr McIntosh would have personal knowledge of these matters. I accept his evidence, which carries significant weight.
3. Having regard to the evidence, I am satisfied that dealing with Mr Zonnevylle's application, as presently amended, will be a significant impost on the resources of the respondent. Based on an estimate of 70 hours for the searches and the review and processing of the application, which may be an overly generous estimate but may equally be too conservative, the resources required would be 2 weeks full time for a staff member. I accept the evidence of Mr McIntosh that it may be necessary for a senior officer of the respondent to undertake the review and processing of the application given the complex issues likely to be raised. While it is possible for the respondent to dedicate these resources to processing the application, I accept this may be at the expense of other matters, particularly given that the application must be processed within the prescribed period of 20 working days.

Decision period

1. Section 57 requires that access applications must be determined within 20 working days. The period can be extended for up to 10 working days if, for instance, consultation with another person is required under the GIPA Act. The time can also be extended by agreement with an access applicant.
2. In the present case, there is evidence that the time taken to complete the searches for the information responsive to the requests for access, as amended by Mr Zonnevylle, will exceed 35 hours. There is also evidence that the estimate of the time to then review and process the application with also exceed 35 hours, making a total of at least 70 hours, being 10 working days. The notion that the application could be completed in 10 or even 20 working days, assumes that the application is able to be given priority over other matters so it can be processed immediately. This also assumes no, or little consultation is required, and that any consultation will be able to be completed within days as opposed to weeks, which is more likely to be the case.
3. Having regard to the other matters being dealt with by the OGIP, some of which are also likely to be urgent or have tight timeframes imposed by Courts and Tribunals, it is possible that the application may not be able to be completed within the prescribed period.

Other considerations

1. The respondents submits that the list of factors that an agency, and therefore the Tribunal, may have regard to under s 60(3A) is not exhaustive. One factor taken into account by the delegate in the determination of 29 May 2020 is Mr Zonnevylle's conduct in seeking access to information relating to the "large box" incident, which includes seeking the identity of staff who were distressed by the incident and who submitted evidence in support of a complaint made against Mr Zonnevylle to NSW Police. It is submitted that Mr Zonnevylle is using the GIPA process as a means to cause further harassment and anxiety for OGIP staff. There is no evidence this was Mr Zonnevylle motivation or intention, in fact there is little evidence about why Mr Zonnevylle seeks much of this information other than his concerns about the complaint made against him to NSW Police. Whether this information, which is likely to include personal or health information of OGIP staff or former OGIP staff, should be released is a matter that can and should be taken into account as part of the public interest balancing exercise. I am therefore not persuaded that this is a compelling factor that would fall under s 60(3A) in any event.
2. The respondent also submits that Mr Zonnevylle's conduct in relation to the application is relevant in considering whether there is an unreasonable and substantial diversion of resources. According to the respondent, Mr Zonnevylle has engaged in extensive and voluminous correspondence which was not directed to refining the scope of his application but nonetheless required the preparation of detailed and time-consuming responses, which in themself divert the resources of the respondent from processing other GIPA applications. The respondent submits that Mr Zonnevylle did not make a meaningful attempt to narrow the scope of his application and raised contentious issues, including making allegations, amongst other things, that the application was being processed with a "lack of good faith". The correspondence and allegations ultimately resulted in the officer restricting Mr Zonnevylle's method of communication with the respondent to by post.
3. The respondent relies on the decision made in the Department of Education v Zonnevylle [2020] NSWCATAD 96 where the Tribunal observed (at [100]) that Mr Zonnevylle's conduct in each of the cases in question supported the inference that if Mr Zonnevylle was permitted to make access applications in the future, Departments and agencies "would be required to engage in substantial consultation which would be rendered futile by [Mr Zonnevylle's] failure to substantively engage or meaningfully respond to the relevant issues".
4. The conduct of an access applicant is not one of the factors referred to in Cianfrano, although there is reference in [62(e)] to whether an applicant has taken a "co-operative approach" in redrawing the boundaries of the application. In my view, the respondent's submission goes beyond this and seeks to raise an issue around what is alleged to be unreasonable or disentitling conduct attributed to Mr Zonnevylle. Mr Zonnevylle has long running disputes with the respondent and a number of other NSW government departments. He is genuinely aggrieved by these disputes, and this has resulted in much of his correspondence being accusatory and intemperate. In my view, this is not, of itself, one of the factors that should be taken into account in assessing whether an access application constitutes an unreasonable and substantial diversion of resources. However, this may nonetheless be indirectly relevant to the assessment.
5. For instance, where an access applicant is not cooperative in their approach to dealing with the application and instead raises peripheral issues that demand a response, this will have an impact on the time that will be taken to process the application and thereby potentially raise legitimate concerns about whether processing an application will result in an unreasonable and substantial diversion of resources. It also impacts on the need, as identified in this case, for a more senior officer to be given the task of processing the application.
6. Having reviewed the correspondence between Mr Zonnevylle and the officer processing his application and correspondence between Mr Zonnevylle and Ms Kaban, it is apparent that Mr Zonnevylle's conduct in dealing with officers of the respondent has involved time consuming correspondence. It is therefore possible that estimates of processing time may become extended. Section 60(3B) factors
7. As already noted, in deciding whether dealing with an access application will require an unreasonable and substantial the version of an agency's resources, any consideration in subsection (3A) must on balance outweigh the factors set out in subsection (3B). There are two factors identified.

General public interest in favour of disclosure

1. Section 60(3B)(a) provides that there is a general public interest in favour of the disclosure of government information.
2. In Ruyters, Senior Member Ransome examined the meaning and application of this consideration. The parties in the proceedings accepted that s 60(3B)(a) should be given the same meaning as in s 12(1). However, the Information Commissioner submitted that there were two possible constructions. The first is that the term should be given the same meaning as s 12(1), which is the inherent public interest in the disclosure of any government information. The second, which is broader in scope and application, is that the term requires a decision-maker to consider the public interest in the disclosure of the information being sought by the applicant. As noted by Senior Member Ransome, this requires the decision-maker to actually consider the nature of the information sought in the application and, relevantly, the non- exhaustive list of public interest considerations in the note to s12(2), which may be instructive when considering the public interest under s 60(3B).
3. After considering the history leading to the insertion of subsections (3A) and (3B), Senior Member Ransome came to the following view at [44]-[47]: 44. The term "general public interest", as noted above, occurs elsewhere in the GIPA Act most notably in s 12(1). The courts have long held that where a word is used consistently in legislation it should be given the same meaning. As was stated in Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452 "it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament". Consistent with the principal set out in Craig Williamson and other cases the same meaning should be given to the phrase "general public interest" in both s 12(1) and s 60(3B). 45. I agree with the submissions of the Commissioner that the use of the word "general" in the phrase "general public interest" should be given its ordinary meaning of "common to many or most of the community" and "non-specific or special" (Macquarie Dictionary). In that sense the phrase "general public interest" indicates that it is the inherent public interest in the disclosure of government information that is to be given consideration for the purposes of s 60(3B) as it is in s 12(1). 46. Furthermore, the interpretation advanced by the Information Commissioner would require an agency to engage with the information sought under the access application to a sufficient degree to enable it to identify particular public interest considerations. That would seem to be contrary to the notion that an agency may, for certain specified reasons, refuse to deal with an access application. While there needs to be some engagement with the information in order to at least identify it and to ascertain whether any of the matters in s 60(1)(a) arise, such engagement would not be to the extent necessary to identify the public interest considerations relevant to the disclosure of the information being sought by the applicant. 47. 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).
4. I agree with the approach taken by the Tribunal in Ruyters, which was subsequently followed by Senior Member Riordan in Hickey v Secretary, Department of Education [2021] NSWCATAD 306. Recognising the general inherent general public interest in favour of disclosure is emphasised by the provisions in the provisions of s 60(3B), which provide that the factors in s 60(3A) are to prevail. In my view, requiring an agency to address factors in s 12 when refusing to deal with an application is inconsistent with underlying rationale of s 60(1)(a) that an agency should not be required to expend resources to assess these issues when refusing to deal with the application.

Demonstrable importance

1. The second the consideration under s 60(3B) is the demonstrable importance of the information to the applicant, including whether the information is personal information that relates to the applicant or could assist the applicant in exercising any rights under any act or law.
2. There is no dispute that a significant proportion or majority of the information requested is personal in respect of items 1 to 6. There is a combination of information that is personal and information that is not personal in items 9 and 10. Items 12 and 13, which are no longer pressed, include personal information of Mr Zonnevylle and third parties.
3. The question is whether any of the information which is the subject of his application is of demonstrable importance to him, for instance, whether the information is sought to assist Mr Zonnevylle in exercising rights under any act or law. Mr Zonnevylle did not provide any evidence or submissions about his motivation for seeking access to the information, other than prosecuting his strongly held view that various officers of the respondent were obstructing his GIPA Act rights to obtain access to documents, had not undertaking their functions in good faith, had conflicts of interest and had not discharged their functions under the GSE Act or the GIPA Act.
4. Mr Zonnevylle is clearly aggrieved about the complaint made by Ms Cobbin to NSW Police. He is also aggrieved about the decision made by Lida Kaban, first to authorise the use of a pseudonym for the officer who is dealing with this application and, secondly, to refuse to provide this information about the identity of the officer to him in response to his request. This being the case, it can be inferred that some of the items, such as items 3, 4 and possibly items 5, 8, 9 and 10, could be relevant to this concern but it is not apparent how items 1, 2, 6 and 7 relate to any of these matters. Mr Zonnevylle did not provide any evidence or submissions about any rights that he was seeking to enforce.
5. Mr Zonnevylle has already obtained information relating to the complaint made by Ms Cobbin directly from NSW Police. There is no evidence that he is being prosecuted in relation to this complaint and the evidence is to the effect that he was contacted by police and no further action was taken. It is apparent that one of the reasons Mr Zonnevylle seeks information about staff is because Ms Cobbin has made an assertion that staff have been harassed by Mr Zonnevylle. He does not agree with this and there is evidence that he has made his own complaint, address to Ms Kaban, about harassment by OGIP staff. It is unclear from Mr Zonnevylle's submissions about what action he seeks to take about these matters and why the information requested is of "demonstrable importance" to him. If Mr Zonnevylle wishes to make a complaint about the conduct of the respondent, Ms Cobbin, Ms Kaban or other officers of the respondent, he may do so through the appropriate channels.

Balancing exercise

1. I accept that there is an inherent general public interest in favour of disclosure of government information and this factor weighs against the exercise of the discretion to refuse to deal with an application on the grounds in s 60(1)(a). I also accept that the fact that much of the information requested includes the personal information of Mr Zonnevylle and that some of the information he seeks relates to disputes he has about certain statements made by officers of the respondent.
2. These factors weigh in Mr Zonnevylle's favour in the balancing exercise, although not strongly so. First, Mr Zonnevylle is already apprised or is aware of most of the information and he has not identified the importance of the information to any action he might take other than the general contention that he is aggrieved by the complaint and allegations made by Ms Cobbin. At Several of the items relate to the incident where Mr Zonnevylle is alleged to have included a letter in a "large box of rubbish". Mr Zonnevylle knows what happened in relation to this incident in that he is the person who delivered it to OGIP. What Mr Zonnevylle disputes is the OGIP staff reaction to this. It is difficult to understand how this will advance any right Mr Zonnevylle seeks to enforce.
3. Secondly, apart from allegations that have made directly to him, which he disputes, and a complaint being made to NSW Police, that has not proceeded to any action or investigation, Mr Zonnevylle does not point to any action he may take or prejudice he has sustained that could be addressed by getting access to the information he requests. Furthermore, there is no evidence or submissions as to the demonstrable importance to him in respect of a number of the items, including items 6 and 7.
4. Against this, I accept that dealing with Mr Zonnevylle's application will take at least 70 hours, possibly more, and the resources required to undertake some of the more complicated tasks will require input from a more senior officer or officers. This may involve several weeks of full-time resourcing over an extended period because of the consultation it will require. In making this assessment about the resources, I have had regard to the nature and scope of the requests, the evidence of Mr McIntosh and the lengthy correspondence in evidence about Mr Zonnevylle's approach to the application and in dealing with the respondent's officers. The actual volume of documents that are responsive to the access application cannot be determined and, as such, the total time to process the application is only an estimate. Despite this, I am satisfied that the estimates made by Mr McIntosh are reasonable and realistic.
5. I am also satisfied that, while the respondent allocates considerable resources to access applications, its resources are not unlimited, and the workload of the respondent is significant. Relevantly, the team must also deal with many other access applications, and I accept the evidence of Mr McIntosh that dealing with this application will potentially divert resources from that important task. The timelines under the GIPA Act are tight and this is likely to add to the pressure on the respondent.
6. In balancing the competing factors, I am satisfied that the factors that fall for consideration under s 60(3A) outweigh the factors in s 60(3B).

Conclusion

1. I am therefore satisfied that dealing with the application would require an unreasonable and substantial diversion of the respondent's resource and that the correct and preferable decision is to refuse to deal with the application pursuant to section 60(1)(a) of the GIPA Act.
2. Having examined the correspondence between Mr Zonnevylle and the officer who processed Mr Zonnevylle's application, I am not satisfied that there is any evidence that he or she did not act in good faith. There is no evidence, and in fact this was directly refuted by Mr McIntosh, that Ms Cobbin was involved in processing his application or that she was really "Chris King".
3. Mr Zonnevylle raises concerns about whether the respondent has complied with s 126 of the GIPA Act by authorising the use of a pseudonym for the officer who processed his application. It is apparent the Mr Zonnevylle became aware of this by the time he complained to Ms Kaban in March 2020.
4. Section 126 (1)(d) provides that any notice under the GIPA Act must "include the contact details of an officer of the agency to whom inquiries can be directed in connection with the decision or other action of the agency with which the notice or notification is concerned". The intention of this provision is to give an access applicant a clear line of communication with the relevant officer. In this case, Ms Kaban authorised the use of a pseudonym so that there would be such communication without Mr Zonnevylle having the details of the actual officer. She explained why this action was taken in her letter of 4 May 2020 and, given the history of Mr Zonnevylle previous applications and the nature of his correspondence, it is understandable that a senior officer may seek to protect a public servant, who is attempting to discharge their duties and obligations, by ensuring that the public servant is not unfairly targeted at a personal level.
5. I accept that this may not have been Mr Zonnevylle's intention, but it is evident from objective analysis of his correspondence and communications more generally, that Mr Zonnevylle can be very combative and personally intrusive. This was evidenced during the hearing in his dealings with Mr McIntosh, the respondent's lawyer, Ms Mattes, statements he made about Tribunal registry staff and about the Tribunal more generally. It is not uncommon for officers discharging statutory functions, which as immigration officers, not to disclose their names in correspondence but to adopt an initial or only reveal a first name. In this case, it is unclear whether "Chris King" is an officer of the agency and whether the pseudonym mechanism adopted by the respondent complies with s 126(1)(d). This section provides that the notice must include the "contact details of an officer of the agency" and it may be argued that the contact details for the officer was nominated as "Chris King". It may have been preferable for the respondent to identify initials as contact details or, at the least, advise Mr Zonnevylle at the outset that this was the procedure adopted as this resulted in Mr Zonnevylle forming a suspicion, wrongly as it turns out, that Ms Cobbin was the person processing his application.
6. Despite this, I am not satisfied that the practice adopted in this case discloses a systemic issue or improper conduct that warrants a referral under either s 111 or s 112 of the GIPA Act. I therefore decline to make any referral.

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: 29 November 2024