Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Alam v Insurance and Care NSW [2020] NSWCATAD 148 Hearing dates: 6 November 2019 Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Decision: (1) The decision of the respondent made, on 28 May 2019, is affirmed. (2) In the event the respondent presses its application for cost, the respondent is to file and serve a short written submission on that issue within 14 days of the date of this decision. (3) In the event the respondent does press its application for costs, the applicant is to file and serve a short written submission in reply within a further 14 days. (4) Submissions should address the question of whether the Tribunal should dispense with a hearing on the issue of costs, pursuant to s 50 of the Civil and Administrative Tribunal Act 2013. Catchwords: ADMINISTRATIVE LAW – access to government information – decision of the agency that it did not hold the information sought – whether there are reasonable grounds to believe that the requested information exists and held by the agency – whether the search efforts of the agency were reasonable in the circumstances Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Ampcontrol Limited v Department of Planning, Industry and Environment [2020] NSWCATAD 98 Amos v Central Coast Council [2018] NSWCATAD 101 Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 McClymont v Department of Family and Community Services [2017] NSWCATAD 202 Robinson v Commissioner of Police [2014] NSWCATAP 73 Walker v Roads and Maritime Services [2019] NSWCATAD 177 Webb v Port Stephens Council [2018] NSWCATAP 224 Category: Principal judgment Parties: Sumyya Alam (Applicant) icare (Respondent) Representation: Counsel: B Epstein (Respondent) Solicitors: Applicant (Self Represented) File Number(s): 2019/00095996 reasons for decision 1. The applicant, Sumyya Alam, seeks review of a decision of the respondent, Insurance and Care NSW (icare), made under s 58(1)(b) of the Government Information (Public Access) Act 2009 (NSW)(GIPA Act), that it did not hold any information about her. 2. icare is a government agency that provides insurance and care services to statutory authorities and people within New South Wales under various compensation schemes, including the NSW Workers Compensation Nominal Insurer (the Nominal Insurer). 3. It is the contention of the applicant, who has at no time made a workers compensation claim, or reported a work injury, that the respondent does hold information about her and has failed to adequately search for that information as it is require to do: GIPA Act, s 53. The applicant's contention is based on what she was told by her former employer that it had made a report to its insurer in regard to what it believed to have been a workplace injury suffered by the applicant. 4. A decision of an agency, made under s 58(1)(b) of the GIPA Act is an administratively reviewable decision by the Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30; Administrative Decisions Review Act 1997 (NSW) (ADR Act), ss 7 and 9 and GIPA Act, ss 80 and 100. 5. The role of the Tribunal on external review is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual matter and any applicable written or unwritten law: ADR Act, s 63(1). In deciding what the correct and preferable decision is, the Tribunal sits in the shoes of the decision maker and re-makes the decision, as if it were the administrator: ADR Act, s 63(2). In doing so, the Tribunal is not constrained by the material that was before the administrator: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 6. Section 105 of the GIPA Act provides that, in administrative review proceedings under that Act, the onus is on the agency (in this case, the respondent) to establish that its decision is justified. 7. For the reasons that follow, I have decided, on the material before the Tribunal, that the correct and preferable decision is that the respondent does not hold the information for which the applicant sought access. In making my decision, I have nevertheless accepted the evidence of the applicant as to what she was told by her former employer and understand why she seeks access to the information sought. However, as I have explained, this does not mean that the information exists and was held by the respondent at the time the applicant made her access request. I am satisfied that the respondent has discharged its onus and that, in the circumstances, the search efforts of the respondent were reasonable. 8. In its written submissions of 3 December and 23 September 2019, the respondent: 1. sought an order under s 110 of the GIPA Act restraining the applicant from making unmeritorious access applications; and 2. made an application for costs. 1. For the reasons set out below, I find that there is no basis to make a restraining order under s 110. 2. In the event the respondent wishes to pursue its application for costs, I have made orders for the filing and serving of submissions in this regard, including whether there is any objection to the matter of costs being determined on the papers. Background and the scope of the applicant's access application 1. In her 12 February 2019 access application to the respondent, the applicant sought access to the following information: Please provide all information regarding Sumyya Bhuiyan (current name Sumyya Alam), please search both names. This may include details about any employers providing information about Sumyya Bhuiyan to icare about any alleged workplace injury or workers compensation(with or without claim). This may include any personal, sensitive and health information about Sumyya Bhuiyan. Please provide every detail and information about Sumyya Bhuiyan, and how and from who that information was received. 1. On 22 February 2019, Bree McFadden, the respondent's Right to Information Officer, wrote to the applicant to advise that she had determined that the applicant's access application was invalid, because the information sought was excluded information under cl 3 of Sch 2 of the GIPA Act (competitive and market sensitive information): GIPA Act , s 19. That is, it was information relating to the management of a specific workers compensation claim. 2. Four days later, on 26 February 2019, Koby Moore, also the respondent's Right to Information Officer, wrote to the applicant to apologise and advise that she had been incorrectly informed that her access application was invalid. Ms Moore went on to confirm that, 'following a secondary search' on the respondent's database, no 'NSW workers compensation claim records' relating to the applicant had been found. 3. Being dissatisfied with the decision of the respondent, on 4 March 2019, the applicant made an application for external review by the Information Commissioner. In that application the applicant expressed concern about the respondent having failed to follow the correct procedure in dealing with her access application. Of particular concern to the applicant was that: * the respondent had initially determined that her access request was invalid; and * the respondent had failed to consult her before any searches were undertaken. In this regard the applicant noted that the scope of her application was not limited to insurance claims about her. She said that what she was seeking access to was 'all information' about her that was held by the respondent. 1. On 22 March 2019, the Information Commissioner determined the applicant's review application. In her report, the Information Commissioner, confirmed, what appears to have been oral advice that was previously given in regard to the information for which the applicant sought access. It was noted that this information was not necessarily excluded information as it did not relate to a specific compensation claim. The Information Commissioner recommended that the respondent make a new decision (i.e. an internal review decision) in regard to its subsequent decision that it did not hold the information sought. 2. On 26 March 2019, the applicant lodged her application for external review by the Tribunal. Subsequent to lodging her application with the Tribunal, on 5 April 2019, Ms Gibbs-Steele, the respondent's Executive Privacy Officer, sent an email to the applicant to advise that the respondent would make an internal review decision, as recommended by the Information Commissioner. 3. On 1 May 2019, Ms Gibbs-Steele made an internal review decision, on behalf of the respondent. In that decision, Ms Gibbs-Steele determined to affirm Ms Moore's decision that the respondent did not hold the information for which the access was sought. In her decision, Ms Gibbs-Steele identified the electronic systems and platforms of the respondent on which information is held and on which searches were undertaken in regard to the names of the applicant, her date of birth and her address. The electronic systems and platforms identified by Ms Gibbs-Steele were as follows: * Data Exchange – claims management system; * CAMEO – correspondence management system; * GuideWire Policy Centre – Policy and premium system; * Navigator – Claims Management Lifetime Care; * Dust Diseases Care Case Management system; * GuideWire ClaimCentre – Claims management system; and * TRIM – Document management system Insurance NSW. Proceedings before the Tribunal 1. On 7 May 2019, the applicant's application first came before the Tribunal, at a case conference. At this case conference, Senior Member Montgomery, is recorded as having made an order returning the respondent's decision of 26 February 2019, to the respondent, for re-consideration. The respondent was also ordered to inform the Tribunal and the applicant of its decision on redetermination by 28 May 2019. 2. On 28 May 2019, Ms Gibbs-Steele, on behalf of the respondent, sent to the Tribunal and the applicant, a copy of her decision on reconsideration. In her decision, Ms Gibbs-Steele noted the additional search criteria the applicant had suggested in her email of 13 May 2019. These additional search criteria included: * different permutations of the applicant's name; * her home address; * names of specific doctors; * names of specific employers and health service providers; * specified date ranges; and * a search of all databases of the respondent. 1. In her decision, Ms Gibbs-Steele identified the various insurance schemes the respondent administers, or is part of. Ms Gibbs-Steele also gave a brief description of the nature of the information held on each of the respondent's electronic systems and platforms and what information, if any, relating to the applicant was held on each electronic system or platform. Ms Gibbs-Steele noted that no records were found. In her decision Ms Gibbs-Steele concluded: Following the extensive searches listed above, I can confirm that the names, addresses or date of birth and employers mentioned in Your GIPA Application and the Additional Criteria are not attached to any records held within icare's systems. In the "Additional Criteria", you provided the names of 3 health service providers as well as 3 doctors as further search criteria. While we cannot conduct searches across our relevant databases using the names of these providers or doctors in connection with any of our relevant schemes, it would have been uncovered through our searches above. As stated in our 1 May 2019 decision, in order for icare to hold a record, you would need to have a workers compensation policy, or claim, to be a participant of one of icare's schemes. … 1. The applicant's application again came before the Tribunal at a further case conference, on 20 August 2019. At this case conference, the applicant advised that she wanted to proceed with her application for review of the decision of the respondent, as varied, in the decision of 28 May 2019. In light of this the Tribunal made orders for the filing and serving of evidence and the matter was set down for hearing on 6 November 2019. 2. The applicant's application was heard, before me, on 6 November 2019. At the conclusion of the hearing, at request of the applicant, I made an order for the applicant to file and serve further written submissions in regard to the oral evidence given by Ms Gibbs-Steele that day. An order was also made for the respondent to reply to any further submissions filed and served by the applicant and I reserved my decision pending the filing and serving of the further submissions of the parties. 3. Further submissions were filed by the applicant on 26 November 2019. The respondent filed submissions in reply on 3 December 2019. GIPA Act 1. The object of the GIPA Act is to give every member of the public an enforceable right to seek access to government information and only restrict access where there is an overriding public interest against disclosure (see sections 3, 5, 9 and 13 of the GIPA Act). 2. Part 3 of the GIPA Act makes provision for open access information (i.e. information held by an agency that is required to be made publicly available: GIPA Act s 18). However, s 19 of the GIPA Act provides that Part 3 does not apply to an agency in respect of the functions of the agency listed in Sh 2 of the Act. Clause 3 of Sch 2 includes functions relating to the issuing of policies of insurance to employers and the calculation of premiums (but only in relation to individual employers), the management of specific claims and to asset and funds management and investment of the Workers Compensation Nominal Insurer established under the Workers Compensation Act 1987. 3. Part 4 of the GIPA Act contains provisions in relation to how access applications are to be made (s 41), how such applications are to be processed (ss 51-56) and how they are to be determined (s 58). 4. Section 53 in this Part makes provision for how an agency is to search for the information for which access is sought as follows: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) 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 agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. 1. Clause 12 of Schedule 4 of the GIPA Act defines what is meant by the phrase 'government information held by an agency' as follows: 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to— (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or (c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or (d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister). (2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet). (3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency. (4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency. 1. The word 'record' is defined in cl 10 of Sch 4 of the GIPA Act to mean: 10 Meaning of "record" (1) In this Act— record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record. 1. Section 58 of the GIPA Act sets out how an access application is to be decided by an agency. That section relevantly provides as follows: 58 How applications are decided (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) 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. Note. These decisions are reviewable under Part 5. 1. As noted above Part 5 of the GIPA Act makes provision for the review of decision of an agency in regard to an access application made in accordance with Part 4. 2. Section 80 in this Part sets out which decision of an agency are reviewable. That section relevantly provides: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part— (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) … 1. Division 2 of Part 5 makes provision for internal review by an agency. Section 84 in this Division makes provision for how an internal review is to be conducted. Section 84(1) provides: (1) An internal review is to be done by making a new decision, as if the decision being reviewed (the original decision) had not been made, with the new decision being made as if it were being made when the access application to which the review relates was originally received. 1. Division 3 of Part 5 makes provision for external review by the Information Commissioner and Division 4 makes provision for external review by the Tribunal. Material before the Tribunal The respondent's evidence and submissions 1. In support of its decision the respondent relied on: 1. a statement of Bree McFadden, dated 19 September 2019. In her statement, Ms McFadden gave evidence about her decision of 22 February 2019. Ms McFadden said that, when she searched the respondent's claims management system, she located one report under the name 'Bhuiyan Alam', which was excluded information. She said she subsequently realised she had made an error, as she had failed to check the personal details of the located report. When she did check she found that the names 'Bhuiyan' and 'Alam' 'was not a hit for the provided names, as the date of birth of the person the subject of this report was not the same as what was contained in the applicant's driver's licence; 2. a statement of Koby Moore, dated 20 September 2019. In her statement, Ms Moore gave evidence of her 26 February 2019 telephone conversations with the applicant in regard to the decision of Ms McFadden. Ms Moore said that she had initially confirmed Ms McFadden's decision. However, she went on to say that, after making her own search on the respondent's claims management system, she found that the record identified by Ms McFadden did not match the personal details of the applicant. Hence, on the same day, she again telephoned the applicant to tell her that an error had been made and that the respondent did not hold any information about her. Ms Moore said she followed up on this call with her letter of the same date; 3. a statement of Nicole Gibbs-Steele, dated 19 September 2019. In her statement, Ms Gibbs-Steele acknowledged that the original processing of the applicant's GIPA application had not been dealt with appropriately. Ms Gibbs-Steele also set out, in more detail, the searches that were undertaken following the report of the Information Commissioner and after the first Tribunal case conference. In this regard, Ms Gibbs-Steele explained which officers of the respondent had been requested to undertake a search and the ambit of that search. Attached to Ms Gibbs-Steele's statement was a copy of the email she sent to each officer and the response she received form that officer advising her of the results of their search. Ms Gibbs-Steele concluded by saying that she was satisfied that: 1. icare had undertaken all possible data searches in order to satisfy the applicant's GIPA request and that there were no further searches that could be performed by icare; and 2. there were no records naming Sumyya Alam, Sumyya Bhuiyan or Sumyya Alam Bhuiyan held by icare or agencies within icare's auspices; and 1. a further statement of Koby Moore, dated 4 November 2019. This statement was accepted into evidence, subject to weight, as it was primarily a response to what the applicant had said in her statement concerning her telephone conversation with Ms Moore on 26 February 2019. Attached to Ms Moore's statement was a print out, with redactions, of the report she had initially located. That report clearly did not relate to the applicant and is excluded information. 1. At the hearing of the applicant's application, Ms Gibbs-Steele gave oral evidence by phone and she was cross-examined by the applicant. 2. In addition to the submissions filed on 3 December 2019, the respondent also relied on the written submissions it filed and served on 24 September 2019. The applicant's evidence and submissions 1. In support of her case, the applicant filed and served a 24 page statement, dated 15 October 2019. A large part of the applicant's statement consisted of submission, rather than evidence and I have dealt with these accordingly. 2. Attached to the applicant's statement are copies of the applicant's access request, email exchanges between the applicant and officers of the respondent and the officers of the Information and Privacy Commissioner and decisions of the respondent and the Information and Privacy Commissioner. 3. In her statement, the applicant set out how her access application and review application to the Information and Privacy Commissioner and the Tribunal had progressed. At [24] of her statement the applicant said that, at the 20 August 2019 case conference before the Tribunal, she had explained to the lawyer representing the respondent, why she believed the respondent did hold information concerning her and why she sought access to that information. In this regard she said: … [I] informed the icare lawyer Mr Berry in response to his question that icare holds information about me with the supply of information from an employer to an insurer which was done without informing me and without my consent, and was not done properly, and that I was concerned about workers compensation insurance fraud or irregularities, with false information about me being supplied to an insurer. 1. The applicant went on to assert that the respondent had failed to take into account the additional search criteria she had provided and hence there had not been a proper or reasonable search for information about her. The applicant went on to point out where, in Ms Gibbs-Steele's statement, adequate searches had not been made. For example, she contended that separate searches should have been made for: 1. each employer the applicant had named; 2. ABN Numbers of each employer the applicant had named; 3. each first, middle and surname of the applicant and any name that was similar to this; 4. date of birth; 5. the applicant's address; 6. each doctor the applicant had named together with every part of her name; and 7. each of the medical/ health names she had provided. 1. The applicant also gave oral evidence at the hearing. During that oral evidence she explained in more detail the circumstances giving rise to her very strong belief that the respondent did in fact hold information about her and that an order should be made for the respondent to conduct further searches. 2. In her written submissions of 25 November 2019, the applicant re-iterated her ongoing contention and belief that the respondent held information about her and had failed to conduct a reasonable search for that information. Consideration 1. I re-iterate, the Tribunal's task is to consider whether the correct and preferable decision is that the respondent does not hold information that is responsive to the applicant's access application: see McClymont v Department of Family and Community Services [2017] NSWCATAD 202 at [31] and Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5, at [9]. Relevant to that task is the respondent's obligation to conduct reasonable searches as prescribed in s 53 of the GIPA Act. 2. It is accepted that there is a two-stage approach to the question as to whether the agency does ,or does not, hold the information sought. These are: 1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so, 2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of a particular case. 1. (Camilleri (supra) at [11], Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 at [19], McClymont (supra) at [22], Walker v Roads and Maritime Services [2019] NSWCATAD 177 at [78] to [79] and Ampcontrol Limited v Department of Planning, Industry and Environment [2020] NSWCATAD 98 at [18]) Are there reasonable grounds to believe that the requested information exists? 1. The Tribunal has accepted that the applicant bears a 'practical onus' to establish that the requested information exists, or that there is a possibility that it exists and is held by the agency: Webb v Port Stephens Council [2018] NSWCATAP 224 at [39] and Amos v Central Coast Council [2018] NSWCATAD 101 at [39]. However, this does not detract from the respondent's legal onus to justify its decision as required under s 105 of the GIPA Act. 2. In her written submissions of 25 November 2019, the applicant reiterated the basis on which she contended that the respondent held information about her. She said a former employer had directed her to attend its nominated medical practitioner, as the employer believed that the applicant had sustained a workplace injury that fell within Part 2 of the Workers Compensation Act 1987 (NSW). The applicant said she attend the nominated medical practitioner, who then provided a report to her employer. The applicant did not receive a copy of the report, but was told by her employer that it had notified its insurer of the applicant's suspected workplace injury. 3. The applicant noted that, under the terms of the Workers Compensation Act, her employer had an obligation to report the alleged workplace injury to its insurer. The applicant went on to assert that, as her employer's insurer was a scheme agent of the respondent and a large business with a substantial human resources function, there was every expectation that her employer would have reported the suspected workplace injury. 4. That the applicant was told by her employer that it had informed its insurer of the suspected workplace injury is not disputed. However, this does not mean that the information was in fact given to the insurer of the applicant's employer. Even if the information had been given to the insurer of the applicant's employer, this did not mean it was information held by the respondent, as not all insurers are a 'scheme agent' of the Nominal Insurer created under s 154A of the Workers Compensation Act: Workers Compensation Act, s 154G makes provision for the Nominal Insurer to enter into an agency agreement with a person (a scheme agent) to act as an agent for it in connection with the exercise of any of its function. 5. In this case, the applicant is unaware of the identity of the insurer of her former employer, or whether the insurer was a scheme agent. 6. In any event, I accept that there are reasonable grounds to believe that the requested information about the applicant exists, but I am not persuaded that there are reasonable grounds to believe that the requested information is held by the respondent. However, in the event I am wrong, I have also considered whether the search efforts made by the respondent to locate the information were reasonable in the circumstances. Are the searches efforts made by the agency reasonable? 1. In Robinson v Commissioner of Police [2014] NSWCATAP 73 at [26]-[27], the Appeal Panel made the following observations about s 53 of the GIPA Act : 26 It will be seen that s 53 commences by confining limiting the agency's obligation to respond to a request to information held by it at the time of receipt of the request (sub-s (1)).This protection against having to look for information once held but no longer in the primary systems of the agency is buttressed by sub-s (4), which makes it unnecessary for the agency to search electronic back-up systems (subject to narrow exceptions). 27 Importantly, sub-s (2) states that the agency 'must undertake reasonable searches as may be necessary' to find the requested information, and must do so 'using the most efficient means reasonably available to the agency'. The latter obligation is amplified by the obligation imposed by sub-s (3). As already noted, sub-s (4) protects the agency from having to make searches of electronic back up systems. Sub-s (5) contains the important qualification that searches that involve a 'substantial and unreasonable diversion of resources' need not be undertaken. 1. In Walker (supra) at [87], the Tribunal summarised the principles applicable to considering whether the searches undertaken by an agency are reasonable: (a) what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]; (b) that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; (c) the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28]. 1. In her written submissions of 25 November 2019, the applicant said that Ms Gibbs-Steele had failed to provide any information or explanation of the search engine(s) used by the respondent in conducting its searches, or the algorithms used by the search engine(s). The applicant went on to provide the following, as an example of why this information and explanation was required: … [an] Internet search for a particular word or term will not report every occurrence of that word or term held in the databases searched, because of the way in which search methodologies, and algorithms, use by Internet search engines operate. Due to the effect of the way in which the search engines of the Respondent operate, it is highly probable that the date relevant to the Information is filtered out. … 1. In opinion, s 53 of the GIPA Act does not require the agency to provide specific details of search engines or algorithms of its electronic data systems. Nor, in my opinion, was it necessary for the respondent to provide any information or an explanation of this kind. What is required, in order to discharge its onus that its search efforts were reasonable, an agency must identify the electronic systems and platforms on which it retains information of the kind sought by the access applicant and what searches were conducted on those systems and platforms for the information sought. 2. In this case, in her decision of 28 May 2019, Ms Gibbs-Steele provided a comprehensive explanation of the respondent's electronic systems and protocols. She explained the nature of the information that was held in each of these systems and protocols. She also explained what searches were conducted on these and why particular searches requested by the applicant could not be made. For example, she said a search could not be made on the basis of the name of a specific doctor. This was primarily due to the manner in which the systems of the respondent had been created to meet the needs of the respondent in fulfilling its functions. Hence, searches can be made on the basis of the name of an employer or the name of a claimant for workers compensation, both of which had been made in respect of the name of the applicant's employer and the name of applicant (including the various permutations of her name). 3. In her oral evidence, Ms Gibbs-Steele explained that the respondent's access to external electronic systems, such as data exchange, is limited in that it only has access to the information in this system that relates to an injured worker and hence the name of the employer. 4. Hence, in my opinion, having regard to the material before the Tribunal, I am satisfied that, in all the circumstances of this case, the respondent has established that the search efforts it made to locate the information for which the applicant sought access have been reasonable. What is the correct and preferable decision? 1. For the reasons set out above, I have decided that the correct and preferable decision is that the information sought by the applicant is not held by the respondent. 2. Accordingly, the appropriate order is to affirm the decision of the respondent, made on 28 May 2019. S 110 application of the respondent 1. Section 110 of the GIPA Act relevantly provides as follows: 110 Orders to restrain making of unmeritorious access applications (1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a restraint order) if NCAT is satisfied that— (a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and (b) the applications were made by the same person or by any other person acting in concert with the person. (2) An access application is to be regarded as lacking merit if— (a) the agency decided the application by refusing to deal with the application in its entirety, or (b) the agency decided the application by deciding that none of the information applied for is held by the agency, or (c) the access applicant's entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable). (3) A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to any one or more of the following— (a) a specific time period, (b) a specific number of applications, whether in total or to particular agencies, (c) particular kinds of information, (d) particular agencies. (4) … 1. In its written submissions of 3 December 2019, the respondent said that it sought an order under s 110(3)(d): 'in light of the evidence and the multiple iterations of applications made to the Respondent, and the unmeritorious and misconceived nature of those applications'. 2. The 'multiple iterations of applications made to the Respondent' are those set out in the respondent's written submissions of 23 September 2019. In my opinion, the respondent has misunderstood the nature of an application for access to government information under the GIPA Act. As I have already noted, that Act gives every person a right to seek access to government information and once an access application is made, an access applicant is given a right, if aggrieved by the decision of the agency, to make an application for internal review and external review. Such applications are not separate applications, they all arise from the original application. Hence, in this case, the applicant has not made three separate access requests. 3. Ms Gibbs-Steele has also acknowledged that the respondent had initially failed to process the applicant's access application correctly. It was not until 1 May that the applicant's application was dealt with in accordance with the GIPA Act. The fact that the applicant requested that further searches be made is not unusual, and, in this case, the Tribunal decided that such additional searches should be undertaken and that the respondent should reconsider its decision, which it did. 4. Nor do I find that the applicant's external review application to the Tribunal was unmeritorious and misconceived. Section 100 of the GIPA Act gave her a right to seek external review if she was aggrieved by the decision of the respondent, that decision having been made on 28 May2019. In this case, the applicant was clearly aggrieved and had the right to have the respondent's decision reviewed. The fact that, on external review, I have decided that the decision of 28 May 2019 should be affirmed does not mean that the applicant's application lacked merit or was unmeritorious. 5. Hence, I am not persuaded that any of the pre-conditions to making an order under s 110 exist in this case. Orders 1. For the reasons set out above, I make the following orders: 1. The decision of the respondent made, on 28 May 2019, is affirmed. 2. In the event the respondent presses its application for cost, the respondent is to file and serve a short written submission on that issue within 14 days of the date of this decision. 3. In the event the respondent does press its application for costs, the applicant is to file and serve a short written submission in reply within a further 14 days. 4. Submissions should address the question of whether the Tribunal should dispense with a hearing on the issue of costs, pursuant to s 50 of the Civil and Administrative Tribunal Act 2013. ********* 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: 05 June 2020