Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shanton v Department of Planning, Industry and Environment [2021] NSWCATAD 89 Hearing dates: 15 October 2020 Date of orders: 9 April 2021 Decision date: 09 April 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: G Sarginson, Senior Member Decision: 1. The decision under review dated 24 January 2020 is affirmed. 2. Pursuant to s 63 (3) (b) of the Administrative Decisions Review Act 1997 (NSW) the decision under review is varied to recognise that a 2014-2015 National Trust Annual Report was provided to the applicant on 8 October 2020. Catchwords: ADMINISTRATIVE LAW---Access to government information---Decision that information not held---Adequacy of searches conducted by agency Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Crown Land Management Act 2016 (NSW) Crown Land Management Regulation 2018 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Betzis v Commissioner of Police [2020] NSWCATAD 71 Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 Shi v Migration Agents Registration Authority [2008] HCA 31 Thomson v Commissioner of Police [2021] NSWCATAD 53 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 YG and GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: Anne Shanton (Applicant) Department of Planning, Industry and Environment (Respondent) Also Heard (s 104(1) Government Information (Public Access) Act 2009 (NSW): Information Commissioner Representation: Solicitors: Applicant (Self-Represented) Crown Solicitor (Respondent) C Higgins (Information Commissioner) File Number(s): 2020/00192819 Publication restriction: Nil REASONS FOR DECISION 1. This is an application for administrative review of a decision of a NSW government agency under s 100 (1) of the Government Information (Public Access) Act 2009 (NSW) ('the GIPA Act'). 2. Although the precise circumstances are unclear from the evidence in the proceedings, it appears the applicant is the owner of land proximate to a Crown reserve on which the Balmain Watch House is located. That Crown reserve is managed by the National Trust. 3. The applicant has been in a long running dispute by reason of alleged drainage issues emanating from the land on which the Balmain Watch House is located. It appears (from the applicant's documents) that negotiations occurred from late 2019 to mid-2020 in respect of rectification of a retaining wall. It appears that earlier rectification work occurred in 2014 which the applicant considers inadequate. 4. On 12 August 2019 the applicant made an application to the respondent for information under the GIPA Act. The information sought was as follows: "All communications regarding the Balmain Watch House. Include file notes, phone notes, meeting minutes, emails and other communications". 1. The application was subsequently refined by the applicant to confine the period for such information to a period commencing on 12 August 2012. 2. On 2 September 2019 the respondent made a decision to release 3 documents to the applicant pursuant to s 58 (1) (a) of the GIPA Act. The documents provided were: 1. NBN Installation Authority Form dated 16 August 2016. 2. Email to National Trust from Crown Lands regarding NBN Installation Authority Form dated 16 September 2016. 3. Notice of Valuation-Balmain Watch House dated 1 July 2014. 1. The applicant sought review of that decision by the Information Commissioner under Part 5 Division 3 of the GIPA Act on the basis that the searches conducted by the respondent were inadequate and there was likely more information held by the respondent that had not been produced. 2. On 6 December 2019 the Information Commissioner recommended that the decision be re-considered by the respondent. 3. On 24 January 2020, the respondent made an internal review decision under s 84 of the GIPA Act. The internal review was limited to the implied decision that the respondent did not hold information responsive to the application other than the 3 documents released to the applicant. The decision to release the 3 documents was not the subject of internal review. 4. On 24 January 2020 the respondent made an internal review decision that the respondent had made reasonable searches for information, and accordingly no further information responsive to the application was held by the respondent pursuant to s 58 (1) (b) of the GIPA Act. 5. The applicant filed with the Tribunal an application for administrative review of the decision dated 24 January 2020 on 25 June 2020. 6. Although the application for review had been filed outside the time period in s 101 (1) of the GIPA Act, the respondent did not oppose the time period to make the application being extended under s 101 (6) of the GIPA Act. 7. At a case conference interlocutory hearing at the Tribunal on 30 July 2020 the Tribunal made an order extending the time period to file the application. The Tribunal made directions for the filing and serving of evidence and submissions. The Tribunal listed the matter for hearing. The Tribunal also noted that the Information Commissioner appeared and had a right to be heard in the proceedings, but was not a party to the proceedings. 8. The applicant and respondent filed and served submissions and evidentiary material. The Information Commissioner filed and served written submissions. 9. The matter was listed for hearing at the Tribunal on 15 October 2020. The hearing was conducted by telephone. 10. The applicant had notified the Tribunal and the respondent prior to the hearing that she did not seek to cross-examine the deponents of the affidavits relied upon by the respondent. 11. The applicant confirmed her position at the hearing that she did not seek to cross examine the respondent's witnesses. The hearing proceeded on the basis of the documentary evidence and written submissions, with the parties making additional oral submissions. Documents and Written Submissions Applicant 1. The applicant relied upon the following evidence: 1. Emails between Mr Silink (Deputy CEO of the National Trust of Australia (NSW) who is the trustee of the Balmain Watch House) and Mr Harper (Natural Resource Management Project Officer of the respondent) in the period between 20 September 2019 and 4 June 2020. 2. Crown Lands Compliance and Enforcement Policy dated 1 July 2018. 3. Letter of Ms Mills, Chief Executive Officer of The National Trust of Australia (NSW) to the applicant dated 25 June 2020. 1. The applicant's written submissions were undated, but filed on 28 August 2020 and 13 October 2020. Respondent 1. The respondent relied on the following evidence: 1. Affidavit of Paul Harper dated 26 August 2020. 2. Affidavit of Isabelle Khoo dated 26 August 2020. 3. Affidavit of Angela Lordan dated 8 October 2020. 1. The respondent's written submissions were dated 27 August 2020 and 8 October 2020. Information Commissioner 1. The written submissions of the Information Commissioner were dated 7 October 2020. STATUTORY FRAMEWORK FOR REVIEW 1. The objects of the GIPA Act are set out in s 3 (1) as being to open government information to the public, in order to maintain and advance a system of government that is open, accountable, fair and effective. That is done by: 3 Object of Act … (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. …" 1. Pursuant to s 3 (2) of the GIPA Act, the Act is to be interpreted and applied so as to further the objects of the Act; and discretions are to be exercised, as far as possible, to facilitate and encourage promptly and at the lowest reasonable cost, access to government information. 2. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 3. Section 9(1) of the GIPA Act provides that a person who makes an application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act unless there is an overriding public interest against disclosure of the information. 4. In this matter, information was not withheld from the applicant on the basis that there is an overriding public interest against disclosure. Rather, the decision asserts that after making reasonable searches the respondent has no further information to provide. Accordingly, it is unnecessary to further discuss the applicable legal principles regarding weighing the public interest considerations in favour of disclosure against the public interest considerations against disclosure. 5. Section 53 of the GIPA Act states: 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. Section 58 of the GIPA Act states: 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. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 1. The decision of the respondent to refuse access is a reviewable decision under s 80 (d) (e) and (f) of the GIPA Act. The Tribunal has jurisdiction to conduct the review by reason of ss 7, 8, and 9 of the Administrative Decisions Review Act 1997 (NSW) ('the ADR Act'). 2. The Tribunal's function on review is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law (s 63 (1) ADR Act). In deciding what is the correct and preferable decision, the Tribunal stands in the shoes of the decision maker and remakes the decision, as if it were the administrator (s 63 (2) of the ADR Act). 3. In conducting a review, the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179). The time at which the Tribunal is to determine the correct and preferable decision is at the time the Tribunal makes its decision (YG and GG v Minister for Community Services [2002] NSWCA 247 at [55]; Shi v Migration Agents Registration Authority [2008] HCA 31; Betzis v Commissioner of Police [2020] NSWCATAD 71 at [24]). 4. In opposing release of information under the GIPA Act, a respondent may raise, and the Tribunal may consider, grounds other than those relied upon by the original decision maker (Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277; Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [33]). 5. In respect of the burden of establishing that a decision is justified, s 105 of the GIPA Act states: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review. EVIDENCE OF THE PARTIES 1. The respondent's evidence is summarised as follows: Affidavit of Paul Harper 1. Mr Harper is a Natural Resource Management Project Officer with the respondent. He was employed by the respondent in 2016 and has been in his current role since 2019. He stated that he was "very familiar" with the record keeping systems of the respondent. 2. Mr Harper stated that the applicant had made previous GIPA applications to the respondent in 2012 and 2013 in respect of documents pertaining to the Balmain Watch House. 3. Mr Harper stated that the respondent uses "one main electronic document and records management system" known as "Content Manager 9" ('CM 9'). Staff of the respondent store "all matter related documents" in CM 9. Additionally, Mr Harper stated that staff can save documents to the 'G Drive' of the respondent's computer system, which is used by staff to save drafts and working copies of documents that when finalised are saved in CM 9. 4. Mr Harper stated that in response to the applicant's GIPA application, he conducted searches of CM 9; the 'G Drive' and email searches. Searches were conducted on CM 9 using the search terminology "Balmain Watch House" and "85801" (the reserve number for the reserve upon which Balmain Watch House is located). Searches were also conducted on CM 9 using the record numbers "11/12675" (which was a reference number to a complaint made by the applicant to the respondent in April 2013); and "MN96R97-002" and "MN80R243-002" (which are Crown reserves files dedicated to the reserve upon which Balmain Watch House is located). 5. In respect of the G Drive and email system, Mr Harper conducted a search using the search term "Balmain Watch House". 6. Mr Harper stated that he also instructed 4 staff members to conduct searches of email inboxes using the search term "Balmain Watch House". 7. Mr Harper stated that the searches only located the 3 documents that had been produced to the applicant. Affidavit of Isabelle Mei Ting Khoo 1. Ms Khoo stated that she is an acting legal officer of the respondent, having commenced employment with the respondent in July 2019. She has been in her current role since October 2019. 2. Ms Khoo stated that after the recommendation of the Information Commissioner, she was responsible for conducting and co-ordinating further searches in response to the GIPA application of the respondent. 3. Ms Khoo stated that the legal services division of the respondent uses a case management and document management system known as 'LEX'. The legal services division previously used a case management and document management system known as Practice Evolve ('PE'). 4. Ms Khoo stated that in January 2020 she conducted a further search of the CM9 system using the search phrase "Balmain Watch House". The search returned four results, but all of the documents were for the period prior to 12 August 2012, which was outside the scope of the applicant's GIPA application. 5. Ms Khoo stated that in January 2020 she conducted LEX and PE searches using the search term "Balmain Watch House". The searches returned no results. 6. Ms Khoo stated that in January 2020 she telephoned the Registry of the Supreme Court of NSW, to enquire about legal proceedings the applicant was involved in. She was informed that the applicant; The Balmain Association; and CGU Insurance were parties to proceedings in the Supreme Court, but no other information could be provided. Affidavit of Angela Lordan 1. Ms Lordan stated that she is a Supervisor, Reserves, Perpetual Leases and Communications at the respondent. She has been employed by the respondent since March 2014 and has been in her current role since December 2018. Her employment duties involve the supervision of staff responsible for the Crown Lands call centre (which is responsible for public enquires relating to Crown land); and managing administration processes relating to reserves for the respondent. 2. Ms Lordan stated that the National Trust is the "corporate Crown Land Manager for the reserve on which the Balmain Watch House is located". 3. Ms Lordan stated that in 2013 the Business Centre of the respondent was established to manage administration processes for reserves for the Department of Trade and Investment, Crown Lands. 4. Crown Lands Managers used an online portal reporting system to submit annual reports to Crown Lands. 5. Ms Lordan in her affidavit sets out the reporting system that was previously used by Crown Lands Managers, known as 'CRRS'. This was linked to an internal information database known as 'CLID'. 6. In July 2018, the Crown Reserves Reporting System was closed following the introduction of the Crown Land Management Act 2016 (NSW) which exempted Crown Lands Managers from reporting for the 2017/2018 financial period. 7. In July 2020 CRRS was replaced by an online portal known as Reserve Manager Portal. This was linked to a new database called Crown Tracker. 8. Ms Lordan states that she conducted searches on CLID, Crown Tracker and CM9 using the search phrase "National Trust". 9. The search revealed annual reports by the National Trust for the years ending 30 June 2009; 30 June 2010; and 30 June 2011, which are outside the scope of the applicant's GIPA application. 10. The search also located an annual report by the National Trust for the period 1 July 2014 to 30 June 2015. Ms Lordan attached a copy of this report to her affidavit. 11. Ms Lordan stated that she made further enquires with the National Trust which revealed that it did not submit an annual report for the 2018/209 financial year. She attached a copy of an email from an officer of the National Trust confirming this information. 12. Ms Lordan stated that she conducted further searches on CM 9 using the search term "National Trust" and no documents were located. 13. Ms Lordan stated that it was her understanding that National Trust had not submitted any annual report for the 2019/2020 financial year to the respondent, but that at the date she deposed her affidavit the reporting period was still open. ADEQUACY OF SEARCHES-APPLICABLE PRINCIPLES 1. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 the Appeal Panel reviewed a number of authorities relating to section 53 of the GIPA Act and stated at paragraph [36] - [44]: 36. Section 53 of the GIPA Act imposes an obligation on an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). That obligation is limited to "information held by the agency when the [access] application is received": s 53(1). The search must be conducted "using the most efficient means reasonably available to the agency": s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources". 37. The question of whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches required to be undertaken to discharge the obligation under s 53. Where, for example, the likelihood of the requested information existing and being held by the agency is farfetched or fanciful, for example, NSW Health holding information about US President Donald Trump's Twitter account or evidence of alien life in Wagga Wagga, arguably no search could properly be characterised as being a "reasonable search ... as may be necessary to find any of the government information applied for" and, therefore no obligation to search arises. Conversely, where it is reasonably likely that the requested information exists and is held by the agency, a cursory search said to be unable to find the requested information, is unlikely to satisfy the obligation imposed by s 53. 38. However, in my view, there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake "reasonable searches" is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that "there are reasonable grounds to believe that the requested information exists and is held by the agency". Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant's belief that the requested information exists and is held by the agency. Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency's "information is not held" is the correct and preferable decision. 39. While reluctant to depart from a long line of authority, I have concluded that in the context of an administrative review of an "information is not held" decision made under s 58(1)(b) of the GIPA Act, the application of the two-step test in Shepherd is plainly wrong. Applying that test requires the Tribunal to first determine whether there are "reasonable grounds to believe that the requested documents exists and are documents of the agency". If the Tribunal concludes that the answer to that question is no, the antecedent question of whether the "search efforts made by the agency to locate such documents have been reasonable" does not arise. In my view, that approach is at odds with s 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held, is justified. 40. In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal's power when reviewing an "information not held" decision, stating at [33]: The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. 41. I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". I do not understand the Appeal Panel in Klaric to suggest otherwise. 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "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": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) – (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act. SUBMISSIONS OF THE PARTIES 1. The applicant submits that the respondent's searches were inadequate and consequently its decision that information (other than the information provided pursuant to the decision of 24 January 2020 and other than the National Trust annual report for the period 1 July 2014 to 30 June 2015 located by the supplementary searches) was not held was flawed for the following reasons: 2. The respondent could reasonably have been expected to hold: 1. "Legislative and policy requirements for Crown Reserve Managers" by reason of its statutory requirements under the Crown Land and Management Act 2016 (NSW). 2. Further annual reports and more detailed reports from the National Trust; 3. Email exchanges between the respondent and the National Trust regarding the applicant's dispute about alleged drainage issues and inadequate retaining wall. The applicant attached email exchanges between Mr Harper and Mr Silink of the National Trust in the period from September 2019 to June 2020. Those exchanges dealt with the issue of rectification work to the retaining wall. The applicant accepted that the email exchange fell outside the scope of the GIPA application. However, the applicant submits that because of the long running nature of the dispute, earlier email correspondence is likely to exist. 4. Exchanges and correspondence pertaining to Supreme Court proceedings commenced by the applicant in 2013. 5. Exchanges and correspondence pertaining to the "significant problems which have emerged and remain unresolved since the completion of rectification work in 2014". 1. The respondent submits that its evidence shows the respondent had made adequate searches and produced documents within the scope of the application without further documents being held. The respondent submits that in respect of the email exchange between September 2019 and June 2020, that exchange occurred after the date of the access application was received by the respondent (12 August 2019) and nothing in the emails leads to the inference that there was earlier correspondence that falls within the scope of the GIPA application. 2. The respondent submits that the correct and preferable decision is that the Tribunal affirm the decision dated 24 January 2020, other than recognising the additional information (the 2014/2015 National Trust annual report) provided on 8 October 2020 (pursuant to s 63 (3) (b) of the Administrative Decisions Review Act 1997 (NSW)). CONSIDERATION 1. The relevant factual issue is whether the respondent has conducted reasonable searches as may be necessary to find any of the government information applied for that was held by the respondent when the application was received under s 53 (2) of the GIPA Act. That is the basis for the decision of the respondent that no other information other than the information produced was held by the agency under s 58 (1) (b) of the GIPA Act. 2. No issue is raised that any search would require a substantial and unreasonable diversion of the respondent's resources under s 53 (5) of the GIPA Act. 3. It is a question of fact as to whether the searches of the respondent that were undertaken were reasonable and adequate. It is also a question of fact whether further searches are likely or unlikely to locate the information sought that is responsive to the GIPA application (Thomson v Commissioner of Police [2021] NSWCATAD 53 at [57]-[58]). 4. The principles set out in Wojciechowska require clear identification by the respondent of its information management systems, so that whether or not compliance with the agency's obligation under s 53 (2) of the GIPA Act can be ascertained. 5. The evidence of Mr Harper; Ms Khoo and Ms Lordan sets out in detail the process of the respondent recording information and the manner in which searches are conducted. Their evidence also comprehensively sets out the manner in which the searches were conducted 6. The applicant submits that further information is likely to be held that has not been produced pursuant to the GIPA application because an inference can be drawn from the email exchange between Mr Harper and Mr Silink. 7. However, having considered the content of that correspondence, it is not sufficient to infer that it is likely (or that there is a reasonable prospect) that any further information is held by the respondent "regarding Balmain Watch House" during the period 12 August 2012 to 12 August 2019 that further reasonable searches may locate. 8. The email correspondence refers to contemporaneous events. Mr Harper was not required for cross examination, and accordingly it was not put to Mr Harper that there is any further documentation "regarding Balmain Watch House" held by the respondent that falls within the scope of the GIPA application that has not been produced, nor that any further reasonable searches may locate such information. 9. In respect of the annual reports of the National Trust (including the 2014-2015 Annual Report that was located and produced to the applicant pursuant to the affidavit of Ms Lordan), the applicant submits that, firstly, there is likely to be further reports, and secondly, that the substance of the report produced is inadequate. 10. The substance of the 2014-2015 report is not a matter relevant for consideration under ss 53 and 58 of the GIPA Act. 11. Ms Lordan's evidence sets out in detail why searches conducted by the respondent did not identify any other reports of the National Trust that fell within the scope of the GIPA application other than the 2014-2015 report. 12. The applicant orally submitted that reasonable searches conducted by the respondent should have located information involving Balmain Watch House pertaining to the National Broadband Network installation. However, such a submission does not rise above mere speculation. 13. The applicant also submitted that reasonable searches conducted by the respondent should have located other documents involving Balmain Watch House pursuant to the obligations of the respondent under the Crown Land Management Act 2016 (NSW). 14. The applicant's documents included a copy of Regulations 19 and 19 of the Crown Land Management Regulation 2018 (NSW) ('the Regulations') and a copy of the Crown Land and Compliance and Enforcement Policy dated 1 July 2018 ('the Policy'). 15. Regulation 18 (1) refers to annual reports by non-council managers and Regulation 19 refers to record keeping by non-council managers. However, the fact that the National Trust arguably may not have completed and lodged Annual Reports or kept records is not probative of the adequacy of the searches for information conducted by the respondent of the respondent's information systems. 16. It is unclear to the how the Policy cited is probative of the adequacy of the searches conducted by the respondent and the issue of whether further information responsive to the scope of the GIPA application has not been produced pursuant to the searches conducted. The Tribunal gives little weight to the Crown Land Compliance and Enforcement policy in the context of the salient issues in this application for review. 17. In respect of the Supreme Court proceedings, the respondent was not a party to those proceedings, and the evidence of Ms Khoo deals with inquiries made in respect of those proceedings. The mere fact that there has been Supreme Court litigation in respect of a dispute that the respondent is not a party does not carry any substantial probative weight on the issues relevant to whether the searches conducted by the respondent were adequate. CONCLUSION 1. Having considered the evidence and submissions of the parties and noting that the onus is upon the respondent to prove factual issues regarding the adequacy of the searches it has conducted in the context of its decision that it does not hold information under s 58 (1) (b) of the GIPA Act, the Tribunal is satisfied that: 1. The respondent undertook reasonable searches in response to the applicant's GIPA application. 2. The decision of the respondent that it holds no information other than the documents produced to the respondent in the decision of 24 January 2020 and the provision of the 2015-2015 financial year report of the National Trust is the correct and preferable decision. ORDERS 1. The decision dated 24 January 2020 under review is affirmed. 2. Pursuant to s 63 (3) (b) of the Administrative Decisions Review Act 1997 (NSW) the decision under review is varied to recognise that a 2014-2015 National Trust Annual Report was provided to the applicant on 8 October 2020. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 09 April 2021