Civil and Administrative Tribunal New South Wales Medium Neutral Citation: New v Ku-Ring-Gai Council [2021] NSWCATAD 263 Hearing dates: 24 February 2021 (final submissions received 5 March 2021) Date of orders: 13 September 2021 Decision date: 13 September 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: S Goodman SC, Senior Member Decision: 1. The implied decision ("Decision") of the respondent under s 58(1)(b) of the Government Information (Public Access) Act 2009 that it does not hold any information responsive to the access application other than the documents listed in the Schedule of Documents attached to its decision dated 7 August 2020 is remitted to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration. 2. The respondent is to affirm the Decision, vary the Decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the Administrative Decisions Review Act 1997, and to provide reasons, both to the applicant and the Tribunal, within 28 days of the date of these Orders. 3. The applicant is to inform the Tribunal and the respondent whether he wishes to proceed with the application for review of the Decision, or withdraw his application in respect of that decision, within 49 days of the date of these Orders. 4. If the applicant decides to proceed with his application for review, he is to request the Registry to relist the matter for directions when he informs the Tribunal of his decision in accordance with Order 3 above. Catchwords: ADMINISTRATIVE LAW – access to government information – access application –review of decision that information not held by an agency Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Access) Act 2009 Cases Cited: CLT v Department of Education [2021] NSWCATAD 249 Commissioner of Police v Danis [2017] NSWCATAP 7 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Category: Principal judgment Parties: Michael Lincoln New (Applicant) Ku-Ring-Gai Council (Respondent) Representation: Solicitors: Applicant (Self-represented) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2020/00310948 REASONS FOR DECISION Introduction 1. The applicant was employed by the respondent as a Property Officer until his dismissal in October 2017. In July 2020, he made an access application under the Government Information (Public Access) Act 2009 ("GIPA Act") for certain information concerning his employment. The respondent decided to provide the applicant with access to information identified in a Schedule of Documents. 2. On 27 October 2020, following a review by the Information and Privacy Commission("IPC"), the applicant filed an application for review with the Tribunal. 3. The Tribunal has conducted a review of the respondent's decision that it did not hold documents responsive to the access application other than those identified in the Schedule of Documents. For the reasons set out below, the correct and preferable decision is to remit the respondent's decision to the respondent for further consideration. Jurisdiction and the Tribunal's role 1. The applicant's case is that the respondent has not provided him with access to all of the information within the scope of his access application, and in particular with access to any report made to the respondent by a particular member of the respondent's staff ("the informant") relating to the applicant's employment. 2. The respondent did not expressly state that it decided, under s 58 (1)(b) of the GIPA Act, that it did not hold particular information however it is implicit within the respondent's decision on the access application that the respondent decided that it did not hold information responsive to that application other than that identified in the Schedule of Documents. This implied decision is reviewable by the Tribunal under s 80(e) of the GIPA Act: see CLT v Department of Education [2021] NSWCATAD 249 at [104]-[106] and the authorities there cited. 3. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with s 28 of the Civil and Administrative Tribunal Act 2013 and s 9 of the Administrative Decisions Review Act 1997 ("ADR Act"). 4. The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 of the ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. A convenient summary of the Tribunal's role in conducting a review of a decision that information is not held by an agency is found in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [42]-[44]: 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. 1. The Tribunal's role in these proceedings is limited to the review described above and does not extend to other matters raised by the applicant, including allegations of misconduct on the part of the respondent. The evidence and findings of fact Evidence 1. At the hearing, the respondent relied upon statutory declarations of: 1. Ms Karen Starkey, a Business Support Officer in the employ of the respondent, dated 15 December 2020; and 2. Mr Stephen Kwok, a Senior Governance Officer in the employ of the respondent responsible for processing access applications, dated 18 January 2021. 1. At the hearing, the applicant relied upon: 1. a statutory declaration of the applicant dated 15 February 2021; 2. statements prepared in connection with a workers compensation claim made by the applicant against the respondent, from: 1. Mr Rodney Kidd, Team Leader, Corporate Risk & Insurance Section of the respondent; 2. Mr Mark Taylor, Manager of Community Recreational Services of the respondent; 1. a report prepared by Pinnacle Integrity titled "Independent Workplace Investigation - Mr Michael New - prepared by Pinnacle Integrity for Ku-Ring-Gai Council" and dated 19 September 2017 ("Pinnacle Integrity Report"); and 2. an investigation report prepared by MJM Corporate Risk Services for StateCover Mutual Limited dated 12 February 2018 concerning the workers compensation claim made by the applicant ("MJM Report"). 1. There was no cross-examination. 2. After the hearing, and following a direction by the Tribunal that the applicant provide a document identifying the passages in his evidence that supported his submission that the informant had provided reports to the respondent on or about 5 July 2017, the applicant provided some additional evidence, namely: 1. a statement of the applicant dated 2 March 2021 which is in substance some further submissions; 2. a statement from Ms Keato, the respondent's Manager of People & Culture, dated 2 February 2018; and 3. a letter from the General Manager of the respondent to the applicant dated 6 July 2017. 1. The respondent objects to the Tribunal taking the additional evidence into account. The Tribunal has considered that objection and has decided to take that evidence into account. Its admission makes no difference to the outcome of this review. Findings of fact 1. From the material before the Tribunal, the Tribunal makes the following findings of fact. 2. From March 2008, the applicant was employed by the respondent and at relevant times was a Property Officer within the respondent's Community & Recreation Facilities department. His responsibilities included the management of leases of property owned by the respondent and Crown lands managed by the respondent. 3. In the first half of 2017, the respondent employed the informant as a temporary employee in the same department as the applicant. The informant undertook a review of the respondent's property portfolio and identified a number of concerns with the management of that portfolio and in particular that there were leases that had not been renewed for a number of years. The informant prepared a document, titled "Lease Renewals 2017" ("Lease Renewals Document") which identified various findings concerning the respondent's properties. 4. On or about 5 July 2017, the informant brought her concerns to the attention of Mr Marshall (the respondent's Director Corporate), who discussed those concerns with Ms Keato. The informant also provided the Lease Renewals Document to the respondent (most likely to Mr Marshall). 5. On 6 July 2017, the applicant's employment was suspended whilst an investigation took place. This was recorded in a letter from the respondent to the applicant of that date. 6. At about that time, Pinnacle Integrity was engaged to undertake an investigation. 7. On 10 July 2017, Pinnacle Integrity interviewed the informant. She provided information to Pinnacle Integrity, including explanations of data within the Lease Renewals Document. 8. On 19 September 2017, the Pinnacle Integrity Report was completed. 9. On 6 October 2017, the applicant's employment with the respondent was terminated. 10. On 16 July 2020, the applicant lodged an access application with the respondent seeking: "… a copy of the personnel file or files (including copies of all files, documents, materials, reports or information) relating to [the applicant's] employment with [the respondent], including with [the respondent's] Community Department, from around 2008 to 2017, including copies of any reports made or prepared by [the informant] in relation to [the applicant's] employment and performance reviews". 1. The access application came to the attention of Mr Kwok. 2. On or about 20 July 2020, Mr Kwok forwarded the access application to Ms Keato. He did so because: (1) the information sought, being personnel files and employment records, was information maintained and managed by the People & Culture department of the respondent; (2) that department was experienced in searching its files for documents responsive to such requests; and (3) for privacy and security reasons, access to personnel files is limited but is exercisable by staff within the People & Culture department. 3. Ms Keato assigned the access application to Ms Starkey for processing. Ms Keato instructed Ms Starkey to conduct a search of the respondent's records for the information sought in the access application. 4. The respondent's records are maintained: 1. principally by an electronic record system; and 2. to a limited extent in hard copy files. 1. Between 20 July 2020 and 29 July 2020, Ms Starkey undertook searches of the respondent's electronic record system and hard copy files. 2. The search of the respondent's electronic record system involved an electronic search for particular words and phrases related to the wording of the access application for the period 2008 to 2017. Those searches relevantly included searches for the names of the applicant (in various forms) and the informant (in various forms). 3. With particular reference to the words "reports made or prepared by [the informant] in relation to [the applicant's] employment" in the access application, searches were undertaken for documents which both: (1) recorded that the informant was the author; and (2) contained the applicant's name (expressed in various ways). 4. Following these searches, Ms Starkey prepared a document which contained links to electronic documents identified by her during her searches. That document was reviewed by Ms Keato and Mr Kwok. 5. Mr Kwok also asked: 1. Mr Poljanski, the respondent's Archives Officer to make enquiries as to whether the respondent held any records responsive to the access application in off-site storage and was informed by Mr Poljanski that he could not locate any files in off-site storage concerning the applicant; and 2. Ms Bevan, the respondent's Director Community (i.e the head of the department in which the applicant had been employed), whether she was aware of any reports made or prepared by the informant in relation to the applicant's employment. Ms Bevan told Mr Kwok that she did not hold any information relating to the applicant's employment and that she had at no stage commissioned the informant to undertake a report into the applicant's employment. 3. 1. On 7 August 2020, the respondent notified the applicant of its decision on his access application. The effect of that decision was to provide the applicant with access to the information identified in the Schedule of Documents attached to the decision. The letter notifying the decision was signed by Mr Kwok and included the following passage concerning searches that had been undertaken to locate information sought in the access application: "Searches for Information Under the GIPA Act, we must conduct reasonable for the government information you asked for in your application. Searches were conducted within Council's electronic document and records management system by Council's People and Culture team. Please refer to the Schedule of Documents for further information. 1. The Schedule of Documents did not provide further information as to the searches conducted, but identified 53 documents and noted that all of them were to be released to the applicant. None of the documents to which access was provided was a report prepared by the informant. 2. The applicant sought a review of the respondent's decision by the IPC. Following correspondence between the IPC and the respondent, the IPC concluded that the respondent's decision was justified. Consideration Identification of factual issues 1. From the above analysis, it is apparent that the informant provided information concerning the applicant: 1. on or about 5 July 2017 to Mr Marshall and Ms Keato; and 2. on 10 July 2017 to Pinnacle Integrity. 1. The scope of the information provided by the informant and the extent to which that information was conveyed in a written form is not known, save that the informant provided the Lease Renewals Document to the respondent and discussed it with Pinnacle Integrity. 2. The essence of the applicant's submissions is that the informant submitted reports to the respondent on 5 July 2017. The evidence relied upon by the applicant in support of this is the statements of Mr Kidd, Mr Taylor and Ms Keato; the Pinnacle Integrity Report; the MJM Report; and the 6 July 2017 letter from the respondent to the applicant and in particular the following passages: 1. from the statement of Mr Kidd: 1. "I became aware that there were casual staff employed by council in that Section during the period of his employment… A casual staff member had been employed in the Community Recreational Facility section. That person had worked for Council on a previous occasion. She had been in that Section for about 6 months when she was given a task to review leases and outstanding leases. She identified that there were a number of leases that had not been renewed for a number of years. She brought that information to Director Corporate, David Marshall, who then reviewed that information with the Manager, People and Culture, Jennie Keato"; 2. "On the 10th July 2017, Pinnacle Integrity interviewed the person who provided initial information regarding the leases. They obtained copies of all the documentation and commenced their investigation"; 3. "From the initial alert by a staff member of the problem with the leases, through the entire investigation process, and each stage informing [the applicant] what was occurring and what had been uncovered, Council followed correct established guidelines in dealing with [the applicant] with the reported work issues"; 1. from the statement of Mr Taylor: 1. "I did end up organising a temporary agency for the Section, [the informant] …" 2. "During the period that [the informant] was there, [the applicant] did have some personal clashes with [the informant]. I did have to talk with both of them to try and smooth things so as to have a reasonable working relationship between them, so that they could focus and progress with the work"; 3. [the informant] and [the applicant] didn't get on very well. I had [the informant] reporting to [the applicant], there were times that she tried to come straight to me that I referred her back to [the applicant]. They had a few personality clashes…"; 1. from the statement of Ms Keato: 1. "On the 5th of July 2017, the Director, Corporate, David Marshall, requested a meeting with me. He stated that he wanted to discuss issues relating to the Community Property portfolio in which he had been alerted to various anomalies relating to leasing and licences. At that meeting, I was informed that there were significant discrepancies relating to the renewal of property leases, that there were tenants in some of our properties where there was no current lease. That portfolio of property leases was one of [the applicant's] key areas of responsibilities. Our initial review of the information provided to us revealed that there were a number of areas of conflict of interest involving [applicant] with specific leases, his work conduct, performance and his attendance. The number of leases involved were extensive"; 2. "as a result of that meeting, I had a further meeting on the 6th of July 2017 with the Director and the General Manager, John McKee"; 3. "Due to the seriousness of the allegations and [the applicant's] conduct, a decision was made at that meeting on the 6th July 2017 to suspend [the applicant] with pay whilst an investigation took place"; 1. from the Pinnacle Integrity Report: 1. "… [the applicant] has also been assisted in his functions by six temporary staff members for various durations of time:... and [the informant]; 2. "The Informant reported concerns internally to Council and additionally provided a document identifying findings in respect to the properties…"; 3. "As the permanent Property Officer, [the applicant] was identified as being responsible for the alleged concerns, and it was considered by the Informant that he had failed to perform inherent requirements of his role, and/or failed to act in good faith and/or in the best interests of Council"; 4. "… the informant also raised concerns about [the applicant's] dealings with Gordon Golf Club and/or Tee Tops… Inference was made as to [the applicant] potentially providing information or conducting himself in a manner that assisted opposing parties with their claim against Council"; 5. "On 10 July 2017, the Informant participated in an interview arranged for the purpose of obtaining further particulars…"; 6. "Concerns identified by the informant may be summarised as follows…"; 7. "The Informant provided further evidence…"; 8. "In addition, the Informant advised the existence of…" 9. "During the interview the Informant raised concerns as to possible reprisal resulting from these disclosures… Notwithstanding this, it was expected that their identity may reasonably be assumed by relevant parties…" 1. from the MJM Report: "Sequence of Events: 1. 5th July 2017 - A casual staff member engaged by Ku-Ring-Gai Council to assist in the property section in the Community Department, alerted Council to various anomalies in the renewal process of the leases of Council's properties. This was a key area of the claimant's work responsibilities"; 2. "Mr Kidd states that when the initial review was conducted by Jennie Keato and David Marshall of the leases that had been highlighted by the staff member from the Property Section, a number of the problem leases went back to 2008"; 1. from the respondent's letter to the applicant dated 6 July 2017: "I refer to the meeting held with you today relation to a number of alleged serious breaches of Council's Code of Conduct associated with the manner in which you have discharged your duties as a Council Officer". 1. The Tribunal has considered this evidence. It suggests that on or about 5 July 2017, the informant provided information to Mr Marshall and Ms Keato of the respondent. The reference in the Pinnacle Integrity Report to the informant having provided a document is a reference to the provision of the Lease Renewals Document, as is clear from the Pinnacle Integrity Report. Apart from the Lease Renewals Document, the form in which the informant provided information to the respondent is not clear. 2. The factual issue which arises is, assuming that written reports (including the Lease Renewals Document) provided by the informant to the respondent fall within the terms of the access application, whether reasonable searches have been undertaken for such reports. Has the respondent proven that it undertook reasonable searches? 1. Section 53 of the GIPA Act imposes an obligation on the respondent to search for information that is the subject of an access application. It is in the following terms: 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. The wording of the access application 1. In considering whether the respondent conducted reasonable searches, it is appropriate to start with the wording of the access application to ascertain the information the subject of the search. As noted above, the access application sought access to: a copy of the personnel file or files (including copies of all files, documents, materials, reports or information) relating to [the applicant's] employment with [the respondent], including with [the respondent's] Community Department, from around 2008 to 2017, including copies of any reports made or prepared by [the informant] in relation to [the applicant's] employment and performance reviews". 1. The access application sought a copy of the personnel file(s) relating to the applicant's employment with the respondent. The word "including" was used three times. On the first occasion, it provided examples of information within the personnel file(s). On the second occasion, it provided an example of the areas within the respondent that the applicant was employed. On the third occasion, it again provided examples of information within the personnel file(s). 2. Drafted in this way, the access application required that the respondent identify information within the personnel file(s) held by the respondent and relating to the applicant's employment. It is clear that this is how the access application was interpreted by Mr Kwok, who forwarded the access application to Ms Keato of the People & Culture department of the respondent. 3. The applicant's submissions appear to start from the position that the access application requested copies of any report prepared by the informant which related to the applicant, regardless of whether such reports formed part of a personnel file. However, this is not a fair reading of the access application, which is limited in the manner described above. The searches undertaken 1. It is appropriate to next consider the searches that were undertaken for the information sought in the access application, to determine the adequacy of such searches. The evidence discloses that searches were undertaken of both electronic and hard copy records. Electronic searches 1. The electronic searches were undertaken by reference to particular keyword searches and were not limited to particular personnel file(s). In this regard, the searches that were undertaken went beyond that which was required. 2. With particular reference to reports prepared by the informant, the Tribunal notes that searches were undertaken for documents of which the informant was the author and which included the applicant's name. 3. The fact that the electronic searches did not unearth the Lease Renewals Document is not evidence that those searches were not reasonable. The Lease Renewals Document may not have been captured by the electronic searches because it may not include the name of the applicant. However, in light of the way that the access application is worded, it was not unreasonable to frame the search in a way which included the name of the applicant. Hardcopy searches 1. The evidence of Ms Starkey is that the respondent maintains limited files in hardcopy and that she carried out a search of the respondent's relevant hardcopy files. However, the evidence does not disclose important matters such as: 1. the nature of the files maintained in hardcopy; 2. which of the respondent's hardcopy files were considered by Ms Starkey to be relevant and why; 3. how those files were reviewed; 4. whether there is a hardcopy personnel file for the applicant or for the informant; 5. the extent to which documents in the hardcopy files could be expected to be found by an electronic search; and 6. whether any of the documents in the hardcopy files were included in the Schedule of Documents. 1. Mr Kwok does not deal in his statutory declaration with the searches undertaken of hardcopy documents, other than to indicate that he made enquiries of Mr Poljanski and Ms Bevan. 2. The Tribunal also notes that: 1. the description in the respondent's 7 August 2020 letter of the searches undertaken referred to electronic searches but not searches of hardcopy documents; and 2. on 21 September 2020, the IPC asked the respondent to identify, inter alia, what if any hardcopy searches had been conducted and the respondent's response to the IPC dated 25 September 2020 did not address this question, other than to indicate that Mr Kwok had made enquiries of Mr Poljanski and Ms Bevan. 1. For all of the above reasons, the Tribunal is not satisfied that a reasonable search of hardcopy documents was undertaken. Emergence of other evidence 1. It is not clear on the evidence whether Mr Kwok was aware of the existence of the Lease Renewals Document as at 7 August 2020 when he signed the letter notifying the applicant of the respondent's decision on his access application. However, there is no evidence suggesting that he took into account its existence when making the respondent's decision. Correct and preferable decision 1. As: (1) the Tribunal is not satisfied that reasonable searches were undertaken of hardcopy documents held by the respondent; and (2) it is clear that the Lease Renewals Document exists and might fall within the terms of the access application, the correct and preferable decision is to remit the respondent's decision for further consideration in accordance with these Reasons. Orders 1. The Tribunal makes the following orders: 1. The implied decision ("Decision") of the respondent under s 58(1)(b) of the Government Information (Public Access) Act 2009 that it does not hold any information responsive to the access application other than the documents listed in the Schedule of Documents attached to its decision dated 7 August 2020 is remitted to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration; 2. The respondent is to affirm the Decision, vary the Decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the Administrative Decisions Review Act 1997, and to provide reasons, both to the applicant and the Tribunal, within 28 days of the date of these Orders; 3. The applicant is to inform the Tribunal and the respondent whether he wishes to proceed with the application for review of the Decision, or withdraw his application in respect of that decision, within 49 days of the date of these Orders; 4. If the applicant decides to proceed with his application for review, he is to request the Registry to relist the matter for directions when he informs the Tribunal of her decision in accordance with Order 3 above. ********** 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: 13 September 2021