Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CLT v Secretary, Department of Education [2022] NSWCATAD 34 Hearing dates: On the papers Date of orders: 31 January 2022 Decision date: 31 January 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: P French, Senior Member Decision: (1) Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the application is dispensed with. (2) The agency's decision that it does not hold any further information responsive to the applicant's access request is affirmed. Catchwords: ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision that information is not held by the agency Legislation Cited: Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Government Sector Employment Act 2013 Cases Cited: CLT v Department of Education [2021] NSWCATAD 249 Klaric v Commissioner of Police [2020] NSWCATAP 153 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Category: Principal judgment Parties: CLT, applicant Secretary, Department of Education Representation: CLT, self-represented Jenni Pendergast, Regional Manager, Right to Access, for respondent File Number(s): 2020/00112820 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013: (i) The applicant is to continue to be identified by the pseudonym "CLT"; and (ii) The identity of the applicant is not to be disclosed by the agency or any other person. . REASONS FOR DECISION Introduction 1. This is an application by CLT (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review of a decision made by the delegate of the Secretary, Department of Education (the agency) on 9 November 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act, the Act) that it did not hold any further government information within the scope of the applicant's access request. 2. For reasons set out following, the Tribunal has affirmed the agency's decision that it does not hold any further information that is responsive to the applicant's access request as the correct and preferable decision. Publication restriction 1. As is set out following, this administrative review is consequential upon a decision of the Tribunal made in these proceedings on 20 August 2021: CLT v Department of Education [2021] NSWCATAD 249 (the 20 August decision). At that time the Tribunal, differently constituted, dealt with an application by the applicant under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) for an order that would prohibit the disclosure of her name in the proceedings. That application was not opposed by the agency. The Tribunal made orders restricting publication of the applicant's name in the terms set out in the cover sheet to this decision. There has been no application by either party pursuant to s 64(1)(4) to revoke or vary those orders. It is therefore appropriate that the operation of those orders is affirmed for the purposes of this decision. Determination process and material considered 1. This administrative review has been conducted on the papers without a hearing with the consent of the parties. In this respect I am satisfied that the application can be satisfactorily determined on the documents that have been submitted by both parties, and that it is appropriate to dispense with a hearing pursuant to s 50(1)(c) of the NCAT Act. 2. I have considered the following material: Applicant 1. Submissions and evidence filed on 10 December 2021, including Tabs 1 to 6; 2. Submissions and evidence filed on 6 October 2021, including Tabs 1 to 27; Respondent 1. Submissions and evidence filed on 12 November 2021, including Tabs A to G; and 2. Submissions filed on 23 December 2021, including Tabs A to D. Background 1. The applicant is an itinerant teacher employed by the agency. Prior to October 2019 the agency had allocated a motor vehicle to her to carry out her duties. In or about October 2019 a decision was made by the agency to dis-allocate that motor vehicle from the applicant and allocate it to a car pool for use on an ad hoc basis by eligible staff as needed. The applicant was and remains very aggrieved by that decision. Since October 2019 the applicant has been on extended sick leave. She has not returned to work since that time. 2. On 21 January 2020 the applicant made an access application to the agency, which was amended on 24 January 2020, which sought access to the following information: 1. Monthly car running sheets for vehicle CM91XJ and CH68PS for October 2019, November 2019, December 2019, January 2019 (sic 2020?) – source: Kerry Hine, Moree Office and Marg Foster-Spinks in the Tamworth Office 2. All records dated from 14 October 2019 to 23 January 2020 in relation to my case from Lauren O'Keefe, Work Health and Safety Directorate 3. All records dated from 12 October 2019 to 23 January 2020 in relation to my case and car usage of vehicles CM91XJ and CH68PS from Kerry Hine, Moree Office 4. All records dated from 14 October 2019 to 23 January 2020 in relation to my case and vehicle usage of CM91XJ and CH68PS from Rachelle West, Macquarie Park Office, inclusive of correspondence between Rachelle West, Kerry Hine and other staff 5. Copy of the role statement of the Tamworth Itinerant Support Teacher early Intervention, and the specific geographic areas that are covered by this New England outreach position. 1. On 18 March 2020 the agency issued the applicant with a Notice of Late Decision in response to her access application. The agency identified 802 pages of information that was potentially responsive to the access application. For present purposes it is sufficient to record that the agency determined to release some of that information to the applicant and to refuse access to the remainder of the information citing overriding public interest considerations against disclosure. 2. On 15 April 2020 the applicant applied to the Tribunal for an administrative review of the decision to refuse access to some of the potentially responsive information held by the agency. By implication, that application also challenged a decision of the agency that it did not hold other documents that were potentially responsive to her access application (the implied decision). In the course of the proceedings the agency made further access decisions in relation to the applicant's access application on 25 May 2020 and 11 December 2020. 3. On 20 August 2021 the Tribunal, differently constituted, published its decision and reasons in CLT v Department of Education [2021] NSWCATAD 249 in disposition of its administrative review (the 20 August 2021 decision). In short summary, the Tribunal varied some aspects of the agency's decision to refuse access to some of the information contained in the 802 pages it had identified as responsive, and otherwise affirmed the agency's decision (order 1). 4. Orders 2 to 5 of the Orders made on 20 August 2021 concerned the agency's implied decision that it did not hold other information that was potentially responsive to the applicant's access request. The matter that is presently before the Tribunal for administrative review arises by operation of those orders. They are in the following terms: (2) The implied 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 802 pages provided to the Tribunal ("Decision") is remitted to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration; (3) 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; (4) The applicant is to inform the Tribunal and the respondent whether she wishes to proceed with the application for review of the Decision, or withdraw her application in respect of that decision, within 49 days of the date of these orders; (5) If the applicant decides to proceed with her application for review, she is to request Registry to relist the matter for directions when she informs the Tribunal of her decision in accordance with Order 4 above; 1. In its Reasons the Tribunal said the following in explanation of these orders at [98] to [102] and [109] to [111]: 98. The applicant also expressed concerns that the respondent's searches were inadequate. Submissions 99. In paragraphs 62 to 90 of her 2 June 2020 submission, the applicant drew attention to various matters including: (1) an email on page 78 referring to a meeting, but no records of that meeting have been produced; (2) discrepancies in information provided to her as to the dates within which an audit was conducted. 100. These matters raise some questions as to the adequacy of the search undertaken. 101. The respondent did not address the question of the adequacy of searches undertaken in its submissions dated 25 May 2020 (which preceded the applicant's 2 June 2020 submissions) or in its 2 February 2021 submissions (which succeeded the applicant's 2 June 2020 submissions). 102. At paragraph 17 of her 4 April 2021 submissions, the applicant reiterated her concern that adequate searches had not been undertaken. Consideration … 109. The Tribunal has reviewed the 18 March 2020 Decision, the 25 May 2020 Decision, the 11 December 2020 Decision and the applicant's submissions. Having done so, it is clear that: (1) the respondent has stated that it has conducted reasonable searches, but has not provided any explanation as to what searches it has done beyond stating that hard copy files and electronic files were "…searched by the areas likely to hold the information requested". For example, there is no indication of the words used to interrogate electronic data bases; (2) the applicant has raised some concerns which suggest that there might be other documents responsive to the application; and (3) the respondent has not addressed those concerns. 110. As noted above, no affidavit evidence was filed. 111. In these circumstances, the Tribunal is not satisfied that the implicit decision that the respondent does not hold information responsive to the access application other than the 802 pages identified as potentially responsive is the correct and preferable decision. The appropriate order is to remit this aspect of the proceeding to the respondent for further consideration. 1. The application insofar as it remained before the Tribunal after the 20 August 2021 decision was first listed for a case conference on 12 October 2021. At that listing an order (order 1) was made for the remittal of the application to the agency for reconsideration pursuant to section 65 of the Administrative Decisions Review Act 1997. The terms of the remittal are set out following: (1) The matter is remitted pursuant to s 65 Administrative Decisions Review Act 1997 for reconsideration of the following matter, as ordered in the decision published on 20 August 2021 (and noting paras [98] – [111] of that decision): "The implied 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 802 pages provided to the Tribunal ("Decision") is remitted to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration." A timetable to give effect to orders 2 to 5 was also set out in the directions made at that listing of the application. That timetable was subsequently extended by orders made on 10 November 2021. 1. On 12 November 2021 the delegate of the agency notified the Tribunal of the outcome of its reconsideration of the implied decision in accordance with Orders 2 and 3 of the Orders made on 20 August 2021. The "reconsidered decision" dated 9 November 2021 is found at Tab A of the agency's submissions dated 12 November 2021. 2. By email to the Registrar dated 26 November 2021 the applicant advised in accordance with orders 4 and 5 of the Orders made on 20 August 2021 that she wished to proceed with her application for administrative review of the agency's reconsidered decision. 3. The application insofar as it concerned the reconsidered decision came before the Tribunal for a further case conference on 30 November 2021. At that listing, the Tribunal made directions for the filing and exchange of evidence and submissions. It also noted the agreement of the parties that the administrative review could be conducted on the papers without the need for a hearing. Additionally, the Tribunal noted: 4. Notes The issue to be determined is whether the respondent holds further information responsive to this access request. The Tribunal notes that the written submissions deal with two other access applications but those matters are currently not before the Tribunal. 1. Notation 4 refers to two other related access requests and applications for administrative review the applicant has made to the agency and the Tribunal respectively. The applicant agitates various issues in relation to the subject matter of those separate proceedings in her evidence and submissions. The agency has responded to those matters in its reconsidered decision and submissions. However, that subject matter does not arise for consideration in this administrative review, which is limited to what was remitted to the agency for reconsideration. 2. The four walls of the remittal are the terms of the access request the applicant made to the agency on 21 January 2020 (as amended on 24 January 2020). To put it another way, the issue for the Tribunal to determine is whether the agency's decision that it does not hold any further information that is responsive to items 1 to 5 of the access request is the correct and preferable decision. That does not involve consideration of information identified or not identified by the agency as responsive to related access applications the applicant has made, except of course to the extent that such information is also relevant to the access application that is the subject of this review. 3. It appears from the agency's submissions filed on 23 December 2021 that on 6 December 2021 the applicant lodged a further application for review which, the agency submits, re-agitates various issues which have already been the subject of her three previous applications. The agency makes submissions as to what the Tribunal ought to order in relation to this new application. That application will be dealt with by the Tribunal in the usual way and those submissions will be considered in the context of that separate proceeding. The applicant's new application is not the subject of this administrative review. The reviewable decision 1. The decision that is the subject of this administrative review is thus the agency's reconsidered decision dated 9 November 2021 insofar as it concerns the issue remitted by operation of orders 2 and 3 of the 20 August 2021 decision, and order 1 of the orders made on 12 October 2021 (the reviewable decision). 2. For the purposes of this administrative review, the relevant sections of the reviewable decision are set out following: … Search for records Under section 53 of the GIPA Act the department must undertake reasonable searches to find any of the government information applied for, that was held by the agency when the application was received, using the most efficient means reasonably available to the Department. The Department keeps records electronically (in shared drives and an Electronic Documents Management System), in physical files (hard copy) and in individual's email accounts. All relevant systems were searched by the areas likely to hold the information requested, as outlined below. Record of Search by Daniel Palmer of Health & Safety Directorate (HSD) dated 6 February 2020 Systems searched Search terms used TRIM/HP Records Manager – list key words and date ranges searched [applicant's first and last names] [applicant's last name] Local computer drives and other electronic records systems – list key words, date ranges, folders and drives searched [applicant's first and last names] [applicant's last name] Hard copy files – list file numbers and location of records searched [applicant's first and last names] [applicant's last name] Databases – list the name of the database and key words searched [applicant's first and last names] [applicant's last name] Emails – list the names of employees' emails and the date ranges searched [applicant's first and last names] [applicant's last name] Other – eg: records held in archives, text messages, extracting information to create new record [applicant's first and last names] [applicant's last name] Original annotated Record of Search by Ruythe Dufty of Peel Network business unit for point 5 dated 4 February 2020 and annotated on 9 September 2021 Systems searched Search terms used TRIM/HP Records Manager – list key words and date ranges searched Nil, Nil found – No TRIM records for itinerant teacher, [applicant's surname] Early Childhood, guidelines Local computer drives and other electronic records systems – list key words, date ranges, folders and drives searched Nil, Nil found on Local computer drives – (key words [applicant's surname] Early Childhood, Itinerant teacher, guidelines) Hard copy files – list file numbers and location of records searched Nil, No hardcopies of any files found on site relating to [applicant's surname] Itinerant, Early Childhood, guidelines Databases – list the name of the database and key words searched Nil, There are no databases on file for: Itinerant teacher, guidelines, [applicant's surname] Early Childhood Emails – list the names of employees' emails and the date ranges searched Nil, no emails located or archived in relation to: ([applicant's surname], itinerant teacher, Early childhood Other – eg: records held in archives, text messages, extracting information to create new record Nil, No text messages, archives located – ([applicant's surname], Itinerant teacher, Early Childhood teacher, guidelines. Record of search undertaken at the Moree business unit Kerry Hine completed the search officer checklist when searching for information but due to an administrative oversight no search officer declaration was signed. The record of further searches by Customer Service and Administration for the Moree and Tamworth business unit documents is below. Record of Search by the Customer Service and Administration unit dated 28 October 2021 Systems searched Search terms used TRIM/HP Records Manager – list key words and date ranges searched [number plate], [number plate] Local computer drives and other electronic records systems – list key words, date ranges, folders and drives searched [number plate], [number plate], local motor vehicle spreadsheet – all dates for cars at that time Hard copy files – list file numbers and location of records searched N/A Databases – list the name of the database and key words searched N/A Emails – list the names of employees' emails and the date ranges searched Rodney Winner, Steven Fraser, Michael Paff, Marg Foster-Spinks, [applicants first name and surname]. Ruythe Dufty, Leone Byrne, Rachelle West – all dates at the time where any mention of the vehicle/fleet management matter or [applicant's first name and surname] herself was mentioned Other – eg: records held in archives, text messages, extracting information to create new record N/A I consider that reasonable searches have been undertaken in response to your application in compliance with section 53 of the GIPA Act. Based on the information available to me, I am satisfied that all records that exist relevant to your request have been identified and provided to me for consideration. Relevant information A total of 2 pages have been received from Customer Service and Administration, School Performance after further searches. These records have been identified as relevant to your access application. These records are trip summaries from 1 April 2019 to 1 September 2019 for cars [number plate] and [number plate]. Decision – two pages after further searches … I have decided today to release in full the information held by the department relevant to your application, under section 58(1)(a) of the GIPA Act. … Reconsidered Decision … I have decided that information is not held by the department (section 58(1)(b). No further information is held other than the two pages provided with this decision and the 802 pages provide in previous decisions. … 1. I also note that at page 10 of its decision the agency states in response to the issue posed by the Tribunal at [109] of its 20 August 2021 decision: "[t]here is no written record of this meeting …". Jurisdiction 1. By operation of section 9 of the ADR Act, section 100 of the GIPA Act confers jurisdiction on the Tribunal to conduct administrative review under the ADR Act of "reviewable decisions" made by "an agency" as these are identified under section 80 of the GIPA Act. A decision that government information is not held by the agency is a reviewable decision: section 80(d). In this respect there is no issue that the agency is "an agency" for the purposes of the GIPA Act, it being a "public service agency" within the meaning of section 4(1)(a) and Schedule 4(1) of the GIPA Act, being a "public service agency" within the meaning of s 3 of the Government Sector Employment Act 2013. 2. In this case the time for the making of an application for administrative review of the reviewable decision is governed by order 1(3) of the Orders of the Tribunal made on 12 October 2021 as extended by the Orders made on 10 November 2021. The applicant had to notify the Tribunal if she wished to proceed with an administrative review of the reconsidered decision by 26 November 2021. The applicant notified the Registrar that she wished to proceed with an administrative review of the reconsidered decision on 26 November 2021 in accordance with those orders. Applicable law The Tribunal's role in an administrative review 1. In determining an application for administrative review under the ADR Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: s 63(1). For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2). 2. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3). The GIPA legislative scheme 1. The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in section 3 which states: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive release of government information by agencies, and (b) by 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. This object is amplified with a statutory command, contained in section 3(2), which provides: (2) It is the intention of Parliament – (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information 1. The object of the GIPA Act is operationalized by various 'machinery' provisions of that Act. In the context of this application it is only necessary to note section 9(1), which provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure. 2. Part 4, Division 3 of the GIPA Act sets out the process for dealing with access applications. Section 53 of that Part and Division concerns the searches that are to be carried out by an agency in response to an access application. It provides: 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) The agency must undertake reasonable searches as may be necessary to find any 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 back up 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. Part 4, Division 4 of the GIPA Act sets out how access applications are to be decided. Section 58 relevantly provides: 58. How applications are decided: (1) An agency decides an access application for government information by: … (b) deciding that the information is not held by the agency, … 1. Section 105(1) of the GIPA Act provides that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case. 2. In Klaric v Commissioner for Police [2020] NSWCATAP 153 an Appeal Panel of the Tribunal considered the extent of the Tribunal's power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]: 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 the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. 1. The Appeal Panel in Wojceichowska v Commissioner of Police [2020] NSWCATAP 173 concurred with that statement, but added at [41]: 41. … 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". … stating at [42] to [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 with 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 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 exists and is held by the agency. Other relevant factual issues may include whether any search 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. Contentions of the parties Agency 1. The agency contends that its reconsidered decision that it does not hold any further government information that is responsive to the applicant's access request is the correct and preferable decision, which should be affirmed by the Tribunal. It submits that it has undertaken reasonable searches to find the government information that is the subject of the access application and that it has identified all of the information that is potentially responsive to that request which is constituted by the 802 pages identified in its access determination of 18 March 2020(as varied) (which was subject to administrative review in the Tribunal's 20 August 2021 decision), and the two additional pages that were identified and released to the applicant by operation of its 9 November 2021 decision (the reviewable decision). The additional 2 pages released to the applicant on 9 November 2021 contain information that was previously released to the applicant but are in a different format to the previously released information. In its submissions of 23 December 2021 at [41] the agency summarises what has been released to the applicant in response to her access application as follows: 1. Monthly car running sheets for vehicle CM91XJ and CH68PS for October 2019, November 2019, December 2019, January 2019- source: Kerry Hine, Moree Office and Marg Forster Spinks in the Tamworth Office. Pages 1 – 13 provided with original decision 2. All records dated from 14 October 2019 to 23 January 2020 in relation to my case from Lauren O'Keeffe, Work Health and Safety Directorate. Pages 232 – 802 provided with original decision 3. All records dated from 14 October 2019 to 23 January 2020 in relation to my case and car usage of vehicles CM91XJ and CH68PS from Kerry Hine, Moree Office. Pages 14 – 231 provided with original decision 4. All records dated from 14 October 2019 to 23 January 2020 in relation to my case and vehicle usage of CM91XJ and CH68PS from Rachelle West, Macquarie Park Office, inclusive of correspondence between Rachelle West, Kerry Hine and other staff. Pages 14 – 231 provided with original decision 5. Copy of the role statement of the Tamworth Itinerant Support Teacher Early Intervention, and the specific geographic areas that are covered by this New England outreach position. Pages 753 – 802 provided with original decision 1. In support of its contention that it has completed reasonable searches for government information that is potentially responsive to the access request the agency relies upon the following: 1. The statement of Ms Ruythe Dufty dated 5 November 2021 (Tab B of the agency's bundle) and Ms Dufty's Search Officer declaration dated 28 October 2021 at Tab 1 of that statement. The business unit that was the subject of the search is stated at section 5 of the Declaration to be the Customer Service Administration Unit. The record of search (the systems searched and search terms used) is set out at section 2 of the Declaration and is extracted in the reconsidered decision as set out above. At paragraphs 4 and 5 of her statement Ms Dufty states: 4. On this declaration I confirmed the information supplied is accurate and that all records held by the business unit have been provided. 5. To my knowledge there are no further records held by the business unit other than the 802 pages provided with the original decision and the two pages provided after further searches. 1. The statement of Ms Rachelle West dated 8 November 2021 (Tab C of the agency's bundle) and Ms West's Search Officer Declaration also dated 8 November 2021 at Tab 1 of that statement. The business unit that was the subject of the search was School Performance – Moree Office. The record of search (the systems searched and search terms used) is set out at section 2 of the Declaration) and is extracted in the reconsidered decision as set out above. At paragraphs [5] and [6] of her statement Ms West refers to the meeting which was the subject of the Tribunal's observation at [109] of the 20 August decision. She states: 5. The virtual meeting was held on or around 17 October 2020 to ensure that records provided were not duplicated and were within scope of the request. 6. Minutes were not taken during this meeting and therefore there are no records held relating to the meeting. At paragraph 9 of her statement Ms West confirms her Search Officer Declaration which is to the effect that "no further records are held". 1. A Search Officer Declaration made by Ms Daniel Palmer dated 6 February 2020 (Tab D of the agency's bundle). The business unit that was the subject of the search was the Health and Safety Directorate. The record of search (the systems searched and search terms used) is set out at section 2 of the Declaration and is extracted in the reconsidered decision as set out above. In its submissions the agency states at [32] and [33]: 32. The Health and Safety Directorate (HSD) provided 521 pages of records with a Search Officer Declaration stating that all relevant records had been provided. … 33. The respondent did not request HSD to undertake further searches due to the COVID-19 pandemic, which has increased the HSD workload significantly at this time. … 1. A Search Officer Declaration made by Ms Dufty on 4 February 2020 (Tab E of the agency's bundle). The business unit in respect of which the Declaration was made is the Peel Principals Network. The record of search (the systems searched and search terms used) is set out at section 2 of the Declaration. 2. A Search Officer Checklist (Tab F of the agency's bundle). At paragraph 35 of its submissions the agency states with respect to this Checklist: 35 A Search Officer Declaration was not sent to the Right to Access (RTA) unit from the Moree Network; however, a checklist completed by Kerry Hine was emailed to the RTA unit on 14 February 2020. A copy of the checklist is at Tab F 1. At paragraphs [36] and [37] of its submissions the agency states with respect to the documents referred to at paragraphs (d) and (e) above: 36. The Moree Network provided 231 pages of records and the Peel Network provided 50 pages of records respectively in response to this application. 37. The respondent submits that the combined Moree and Peel Network Search Officer Declarations for this matter (along with the search terms used and time taken) have been combined and provided in an updated Search Officer Declaration by Ruythe Dufty on 28 October 2021. A copy of the Search Officer Declaration is at TAB 1 attached to her statement. Applicant 1. The general thrust of the applicant's submissions is that the Tribunal ought to determine as a result of this administrative review that the agency's access determination is not the correct or preferable decision because it has failed to carry out reasonable searches to establish that no further government information is held by the agency that is responsive to her access application. It would follow from this that the orders sought by the applicant are that the reconsidered decision be set aside and that the access request (insofar as it relates to government information not already provided) be again remitted for reconsideration by the agency with specific directions and recommendations as to how searches are to be conducted. 2. The applicant's submissions are discursive and canvas various matters within the scope of this administrative review and outside it. Doing the best that I can, I understand the applicant's contentions, insofar as they are relevant to this review, to be: 1. The agency has, in part, failed to identify the search terms used, and, in part, used inadequate search terms to identify the information sought in her access application. In the second respect, she contends that the search terms ought to have included the name "Kerry Hine", and the words "audit" or "fleet vehicle audit" or "car audit" or "fleet/vehicle audit"; 2. The agency failed to conduct any further search of records held by the Work Health and Safety Directorate; 3. The agency has failed to explain the date ranges within which its searches were conducted; 4. Ms West's Statement and Search Officer Declaration both dated 8 November 2021 at Tab C of the agency's bundle concerns a related administrative review proceeding and is therefore not relevant to this administrative review; 5. The agency's staff has failed to comply with internal policies and procedures in relation to record keeping and the conduct of searches required by access to information requests. Specifically, she is critical of the fact that no record of a meeting conducted on 17 October 2020 in relation to her access request was kept, and that no documents have been produced in relation to actions taken by various staff members as a result of what was discussed at that meeting. Additionally, she is critical of the fact that Ms Hine failed to complete a Search Officer Declaration Form and that the Checklist against which she conducted her search does not identify her as its author and is incomplete; 6. The agency staff who conducted the searches have been dishonest in their declarations and have colluded to deliberately conceal the existence of documents responsive to her access application. She contends that the searches carried out lack "independence" and "transparency" and have been subject to "screening or filtering"; 7. Some documents that have been released suggest the existence of other documents that have not been identified. Specifically, the applicant refers to the "Fleet Service Review" Briefing for the Executive Director which is at Tab 3 of her bundle filed on 10 December 2021 and to an email from Ms Hine to Ms West which is at Tab 5 of that bundle, to which no reply appears in the documents that have been identified as responsive to her access request. Consideration 1. Having had regard to the totality of the agency's evidence I am satisfied that it has conducted reasonable searches for government information that falls within the scope of the applicant's access request. In this respect it is important to bear in mind that s 53 imposes a standard of "reasonableness" in relation to the searches required to be undertaken by an agency rather than any absolute or strict standard. Such searches must therefore be "logical", "sensible", "appropriate", and "fair" but are not required to be "extreme" or "excessive" (to illustrate using synonyms and antonyms). The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency's obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative or belligerent observer. 2. It thus falls to the agency to establish pursuant to s 105 of the GIPA Act that it has carried out searches for government information within the scope of the access request in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant's section 9(1) right to government information. 3. This is not a case where no information that was responsive to an access request has been identified by an agency. In its original determination the agency identified 802 pages of government information that was responsive to the access request, and a significant quantity of government information was identified in relation to each of the 5 components of it. Therefore there was from the outset a substantial attempt by the agency to identify the information sought by the applicant. 4. Two further documents were identified as part of the reconsidered decision. These had previously been identified in a different format in the agency's original access determination. The applicant apprehends that the discovery of these documents by the agency vindicates her in relation to her claim that documents have been withheld as a result of 'screening', 'filtering', 'collusion' and the like. I am not so persuaded. 5. To the contrary, I am satisfied that the identification of these two additional documents highlights the fact that both the original and subsequent agency searches for information responsive to the access application have been genuine and thorough. That inference arises from the volume of documents originally produced across each category of the access request and the fact that no new information (as distinct from two 'new' documents in which previously disclosed information was contained) has been identified in subsequent searches. The mere fact additional documents may be discovered on a second search does not mean that an original search was not reasonable or thorough. A degree of minor human error is not fatal to the reasonableness standard. 6. The applicant is critical of the search terms the agency used, or failed to use, to interrogate its electronic databases. Search terms must obviously be formulated having regard to the information sought by the access request so as to be capable of capturing that information. An agency and its staff will usually have a greater degree of knowledge than an applicant about the way to formulate searches that will elicit particular information sought. Consistent with its obligation to undertake searches reasonably necessary to find the government information that is the subject of an access request there should be evidence that the agency has deployed that expertise for the applicant's benefit. That said, it is not for an agency to speculate about, or to try to imagine, what it is that the applicant wants, irrespective of the actual terms of the access request. Its' search expertise is to be deployed within the four walls of the access request that is before it. 7. Paragraph 1 of the access request sought monthly car running sheets for two motor vehicles identified by number plate over a four month period (assuming that January 2019 actually meant January 2020) in two regional offices. I am satisfied on the basis of the Search Officer Declaration made by Ms Ruythe Dufty on 28 October 2021 that the agency used the number plates nominated by the applicant as search terms and that extensive searches were conducted in both regional locations of both electronic and hard copy files to identify information held constituting or relating to these running sheets. The Search Officer Declaration does not explicitly state the date ranges of the searches, but it does refer to "all dates for cars at the time" which presumably refers to the date range specified by the applicant. In this respect I do not understand the applicant to contend that she did not obtain access to running sheets relating to periods she specified. In any event, in her Statement dated 5 November 2021, Ms Dufty certifies that no additional records are held in relation to this element of the access request other than the documents that were originally identified by the agency. On the basis of the searches the agency has conducted in relation to this item, I do not consider there is any real likelihood that the agency has failed to identify all government information it holds in relation to this paragraph of the access request. 8. Paragraph 2 of the access request sought "all records dated from 14 October 2019 to 23 January 2020" from a particular staff member located in the Work Health and Safety Directorate in relation to the applicant's "case". The term "case" must be understood to refer to the applicant's sick leave or alleged work place injury. The Search Officer Declaration made on 6 February 2020 by Ms Palmer sets out the electronic and hard copy systems searched and the search terms used, which were the applicant's first name and surname. It does not state the date range of the search. However, I consider that this self-evident from the applicant's access request. The Declaration signed by Ms Palmer on 6 February 2020 certifies that all information related to paragraph 2 had been identified up to that date and that she considered it could be disclosed in full to the applicant. I do not consider there is any real likelihood that the agency has failed to identify all government information it holds in relation to this paragraph or the access request. 9. The applicant is critical of the fact that no further searches were undertaken by the Health and Safety Directorate in response to the remittal of the decision for reconsideration. This appears to arise from a misconception. It was the agency's decision that it held no further government information within the scope of the applicant's access request that was remitted for reconsideration. The Tribunal did not direct or recommend the agency undertake further searches, but of course it was free to do so if its reconsideration of the decision properly required this. The agency was entitled to rely upon evidence the reasonableness of searches conducted in the lead up to its original decision in the reconsideration of its decision. The fact that it did not undertake further searches is therefore not evidence that its searches were not reasonable. 10. Paragraphs 3 and 4 are iterative of paragraphs 1 and 2 of the access request but refer to the government information that may have been created by particular staff members in relation to these matters. As noted above, in her Search Officer Declaration Form dated 28 October 2021 Ms Dufty outlines the electronic and hard copy systems that were interrogated in the agency's search in relation to these and other elements of the access request. This includes the names of the employees whose emails were searched. Notably those names do not include Kerry Hine, whose name is explicitly referred to in the access request. Nevertheless, Ms Dufty states in her statement dated 5 November 2021 all records responsive to the access request have been identified by the agency's searches. 11. I can understand why the apparent failure of the agency to search Ms Hine's email might create a doubt for the applicant. However, some comfort is derived from two considerations. First, it is only Ms Hine's email which was apparently not subject to search. Other documents in her possession or control were part of the systems searched. Second, email is a means of communication with another person or persons. The emails of other staff specified in the access request with whom Ms Hine was likely to be in communication were subject to the search. This is likely to have identified any emails sent or received by Ms Hine. In this respect it is clear that emails sent by Ms Hine have been identified and released to the applicant (Tab 5 of her submissions of 10 December 2021 is such an example). Therefore, on balance, I am not satisfied that any failure to search Ms Hine's email resulted in an incorrect decision that information was not held by the agency. 12. Paragraph 5 of the access request refers to the role statement for the applicant's Itinerant Support Teacher role and the specific geographic areas that are covered by that role. There does not appear to be any issue that this information was identified and provided to the applicant in response to her access request. 13. I turn now to the applicant's contentions set out at paragraph [39] above. 14. Having regard to the particular terms of each element of the access request it is not apparent to me why the search terms "audit" or "fleet vehicle audit" or "car audit" or "fleet/vehicle audit" would have been appropriate search terms to interrogate the agency's electronic data bases. The access request did not call for any fleet audit or review. I therefore do not consider that there was any inadequacy in the agency's searches because those search terms were not used. Similarly, I cannot see how the fleet service review, which is at Tab 3 of the applicant's submissions of 10 December 2021 can be suggestive of information held by the agency which has not been identified as responsive to the access request. The access request does not refer to a fleet service review or anything reasonably approximating it. 15. It is true that the Search Officer Declaration completed by Ms Dufty on 4 February 2020 did not contain any search terms and in this respect it does not assist the agency to establish the reasonableness of that search. However, that Declaration is superseded by the Search Officer Declaration made by Ms Dufty on 28 October 2021. The later Declaration does contain sufficient information about the systems searched, the search terms used, and the date ranges within which these searches were conducted to establish the reasonableness of the agency's searches. 16. For the reasons I have stated above, I am not satisfied that the agency has failed to establish the date ranges within which searches were conducted. In this respect the agency's obligation pursuant to s 53(1) was to identify the information held by it on the date the application was received having regard to the terms of the access application itself; in particular, to the extent that it specified the date ranges within which information was sought. I am satisfied that this is what the agency has done. 17. With respect to the Statement and Search Officer Declaration provided by Ms West both dated 8 November 2021 both parties contend that this statement is not relevant to this administrative review. That may be accepted except insofar as that statement refers to the virtual meeting held on or about 17 October 2020. The issue of any record of that meeting was the subject of the remittal as is clear from paragraph 99 of the 20 August 2021 decision. I am satisfied on the basis of Ms West's Statement at [5] and [6], and her Declaration that there is no real likelihood that the agency holds government information in relation to that meeting that has not already been released to the applicant. No minutes or other record of that meeting was made. 18. The applicant complains that staff have not complied with agency policies and procedures related to record keeping and responses to access requests. A failure of agency staff to comply with policies and procedures developed by the agency for the processing of access requests may be relevant evidence as to the reasonableness with which searches have been carried out. However, it is not the role of the Tribunal to police compliance with an agency's internal policies. The question before it is always the ultimate one, which is whether the agency's decision that it does not hold further government information that is responsive to the access request is the correct and preferable decision, having regard to the reasonableness of the searches conducted. In the circumstances of this case, I am not satisfied that any failure to adhere to the specific process for dealing with an access request has had the ultimate effect of the agency failing to carry out reasonable searches. 19. In relation to the alleged failure by agency staff to make a record of the meeting of on or about 17 October 2020, this administrative review is concerned with whether information is held by the agency. It is not concerned with the question of whether government information should have been created but wasn't. 20. The applicant makes various serious allegations against several agency staff members involved in the processing of her access application which, if proven, may amount to offences under Part 6 Division 2 of the GIPA Act. Such conduct, if established, would also be relevant to the question of whether information is held by the agency. However, on the evidence before me, there is nothing to support the applicant's allegations that staff have acted personally and in collusion with one-another to conceal information, or to filter or screen it. Nor is there any evidence before me that would allow me to conclude that the Statements and Declarations made by Ms Dufty, Ms West, or by Ms Pendergast in her reconsidered decision, are 'dishonest'. The applicant's contentions in these respects are nothing more than wild allegations. 21. Tab 5 of the applicant's bundle of 10 December 2021 is an email from Ms Hine to Ms West dated 29 November 2019. The applicant contends that this email is indicative that the agency has withheld documents responsive to her request because no reply to this email has been identified by the agency as responsive to her access application. I accept that emails which ask questions or seek directions from their recipient, where no response appears, may create a doubt as to the reasonableness of a search. However, such a doubt could not reasonably be founded on a single email. The response to the email may have taken the form of a telephone call for instance, which did not result in the creation of government information that would be responsive the applicant's access request. 22. I am thus satisfied on the totality of the evidence that the agency has discharged its onus of establishing that it does not hold any further government information that is responsive to the applicant's access request. In this respect the agency has established to my satisfaction that the searches it has carried out in order to identify potentially responsive information have been reasonable. Orders 1. For the foregoing reasons: 1. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the application is dispensed with. 2. The agency's decision that it does not hold any further government information that its responsive to the applicant's access request is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2022