Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EHW v NSW Education Standards Authority [2023] NSWCATAD 133 Hearing dates: On the papers Date of orders: 2 June 2023 Decision date: 02 June 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: P French, Senior Member Decision: (1) A hearing of the respondent's Application for Miscellaneous Matters (summary dismissal) filed on 2 December 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The applicant's Application for Administrative Review filed on 20 September 2022 is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – administrative review of a reviewable decision – application for summary dismissal Legislation Cited: Administrative Decisions Review Act 1997 (NSW) – ss 55, 58 Civil and Administrative Tribunal Act 2013 (NSW) – ss 50, 55, 64 Government Information (Public Access) Act 2002 (NSW) ss 3, 9, 14, 58, 74, 80, 89, 92, 93 100 Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 General Steel Industry v Commissioner for Railways (1964) 112 CLR 125 Klaric v Commissioner for Police [2020] NSWCATAP 153 Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 Robinson v Commissioner of Police [2014] NSWCATAP 73 Shaw v Secretary, Department of Education [2021] NSWCATAD 224 Wojceichowska v Commissioner of Police [2020] NSWCATAP 173 Texts Cited: Nil Category: Principal judgment Parties: EHW (Applicant) NSW Education Standards Authority (Respondent) Representation: Solicitor: Crown Solicitor (Respondent) Other: EHW (Self-represented) File Number(s): 2022/00281198 Publication restriction: The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant is to be known by the pseudonym "EHW". Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Introduction 1. The substantive application before the Tribunal is an application by EHW (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of an internal review decision made by the delegate of the NSW Education Standards Authority (the agency) in relation to his access application dated 16 February 2022 (as subsequently amended). By that decision the agency purported to release to the applicant all the information that fell within the scope of his access application, except for Document 16, which was redacted to remove personal information relating to persons unconnected with his access request. However, the applicant contends that the agency's searches were not reasonable such that it has failed to disclose information it holds that is responsive to his access application. This application was made to the Tribunal on 20 September 2022 (the substantive application). 2. The application that is before me for determination is an Application for Miscellaneous Matters filed by the agency on 2 December 2022 which seeks an order pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) summarily dismissing the substantive application on the basis that is misconceived and lacking in substance. The agency contends that the substantive application is misconceived and lacking in substance because it has released to the applicant all the information that falls within the scope of his access request, excepting the redactions made to Document 16, which the applicant does not dispute. In this respect it submits that there is no "reviewable decision" before the Tribunal that attracts its administrative review jurisdiction. 3. For reasons explained following I have decided to dismiss the applicant's Administrative Review Application on the basis that it is lacking in substance and in that respect an abuse of the Tribunal's process. While the agency's contention that there is no reviewable decision before the Tribunal is not correct (the Tribunal is able to review an implied decision that further information responsive to an access application is not held), having regard to the factual background and the applicable law, the applicant's case is so weak that it is doomed to fail. For this reason it should not be permitted to proceed. Publication restriction 1. On 8 November 2022, the Tribunal, differently constituted, made an order pursuant to s 64(1)(a) of the NCAT Act prohibiting publication of the applicant's name and assigning him the pseudonym "EHW". I have published these orders in these reasons. The issue has not been re-determined by me. Dispensing with a hearing 1. Section 50 of the NCAT Act sets out the circumstances in which hearings are required in proceedings before the Tribunal. It relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except – … (c) if the Tribunal makes an order under this section dispensing with a hearing, … … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal must not make an order dispensing with a hearing unless the Tribunal has first – (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal; in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. At the case conference conducted on 22 November 2022 the Tribunal made directions for the agency to file its Application for Miscellaneous Matters and for the filing and exchange of evidence and submissions in relation to that application. Those directions also directed the parties to indicate in their submissions any view as to whether the application could be determined on the papers without an oral hearing. 2. Both parties have complied with those directions. In his submission filed on 13 December 2022 at [12] the applicant states that he is comfortable for the Tribunal to deal with the agency's application on the papers, although he urges the Tribunal to dismiss the agency's application. At paragraphs [40] and [41] of its submissions filed on 2 December 2022 the agency submits that the application can be adequately determined in the absence of the parties. It submits in this regard that the threshold question, which it identifies as whether there is a relevant reviewable decision, is a simple one that can be determined on the basis of the documents that have been filed, this is not a case that involves witness evidence so no question of witness credibility arises, and the parties have each had the opportunity to make submissions in relation to the issue for determination. 3. Having regard to the material before me and the submissions of the parties, I am satisfied in accordance with s 50(2) of the NCAT Act that the issues for determination can be adequately determined in the absence of the parties. Evidence and submissions 1. The following material has been considered in reaching this determination: Applicant 1. Administrative Review Application Form filed on 20 September 2022 and its annexures, 2. Bundle of documents and submissions filed on 13 December 2022. Agency 1. Application for Miscellaneous Matters filed on 2 December 2022 and attached submissions, 2. Bundle of documents filed on 2 December 2022 (s 58 bundle). Background 1. On 16 February 2022, the applicant made an access application to the agency pursuant to s 41 of the GIPA Act for information held by it. The delegate of the agency initially determined the access application invalid. After consultation with the applicant about the scope of his application, the applicant amended his application to seek access to the following documents: "1. All documents and other records from 13 October 2019 – 15 June 2020 (including all file notes, correspondence/communication) held by NESA in all formats, relating to the following individuals [Names and dates of birth of applicant's three daughters] 2. All records relating to the [EHW] children and specifically related to the children's home schooling applications and approval, copies of all documents via electronic media, letters, notes and telephone TXT messages between the varying Directors, managers and other administration staff that communicated with any third party agencies including internal mail by various individuals at the Department of Education/NESA. 3. Copies of all media documents, such as computer-based calendar reminders, notes on computer and telephone-based software that were used to manage the functions of NESA and their relationship with other statutory bodies they must communicate with such as DCJ, Police, AFP, Education and other agencies, before approving home schooling. 4. All Documents, including letters and notes, sent/received by Ms Grewal to/from any person of government agency (whether internal or external), copies of all documents with any member of the Department of Communities and Justice, Federal Law enforcement, NSW Police, Alex Sarkis, Adam Barwick, Matthew Simon McQueen, Maggie Church, Alicia Cooper, Sgt Jane Prior Bankstown Police, and Rachael Ward; and any documents to and from any government agency related to the home school processes or documents about the application processes and all communication documents about the children. Copies of ALL documents NESA provided to other third parties such as DCJ, Police and their relationship with Education, related to the parent's application for home schooling. 5. All correspondence between varying agencies, all documents between the time the parent applied right up until the approval for home schooling was provided." 1. By Notice of Decision issued on 11 April 2022, the delegate of the agency determined the applicant's application for information by: 1. identifying 13 documents held by the respondent that were responsive to the applicant's application, and 2. releasing those documents to the applicant, with redaction of certain information (primarily the names and contact details of NESA staff and an Authorised Person) on the grounds that the redacted information did not fall within the scope of the information requested and accordingly could be deleted pursuant to s 74 of the GIPA Act. 1. In section 3 of his Notice of Decision the delegate of the agency explains the searches he conducted for information responsive to the applicant's access request: 3 Searches for information Under the GIPA Act, we must conduct reasonable searches for the government information you asked for in your application. We have searched our records to find the information that falls within the scope of your application. We searched for the information you requested on NESA databases located on TRIM (electronic records management system), Securenet, emails, telephone-based software, notes on computers, text messages and calendar reminders. I note that the information held by NESA relates only to [one child's name]. The information falling within the scope of your application, located by our searches includes emails, file notes, home schooling application, Authorised person report, auto-generated letters, emails and family history records (please see attached schedule for more detail). These items may be divided into the following categories: A) email correspondence, file notes, home schooling application submitted, initial report, other internal administrative communication and related information; and B) information routinely provided by NESA to the NSW Department of Education, under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW). 1. On 12 April 2022, 13 April 2022, and 19 April 2022 the applicant wrote by email to the delegate of the agency contesting the adequacy of the searches that had been conducted to identify the information that fell within the scope of his access application. In response to those communications, the delegate undertook further searches and made a supplementary decision in relation to the applicant's access request which was notified to him by Notice of Decision dated 29 April 2022. Two additional documents were identified. Those documents were released to the applicant with some information redacted in accordance with s 74 of the Act on the basis that it was "irrelevant". 2. In section 3 of the supplementary decision the delegate explains the further searches he undertook as follows: 3. Searches for information Under the GIPA Act, we must conduct reasonable searches for the government information you asked for in your application. Following the notice of decision of 11 April 2022 and receipt of your emails dated 12 April, 13 April and 19 April 2022, NESA undertook further searches for any material falling within the scope of your application. This included a further request by NESA to the relevant Authorised Person for all relevant records. This included searching for any emails, searching telephone-based software, notes on computers, text messages, calendar reminders and any other records. As noted in the original decision, the information that is held by NESA relates only to [one child's name]. The information (and additional information) which is relevant to this supplementary decision (and within the scope of your application) consists of: i. an email from the Authorised Person to NESA dated 4 March 2020, omitted from the schedule of documents in the original decision owing to an inadvertent error; and ii. a diary entry made by the Authorised Person for an initial visit appointment on 20 February 2020. 1. Following his receipt of the supplementary decision, the applicant sought a review of the agency's original and supplementary decisions by the Information Commissioner. The delegate of the Information Commissioner issued a Review Report on 2 August 2022. 2. In relation to the adequacy of the agency's searches for information that fell within the scope of the applicant's access request the delegate found as follows: 13 In its notice of decision, the Agency confirmed that it searched for the information requested in the Agency's databases located in TRIM (electronic management system), securenet, emails, telephone-based software, notes on computers, text messages and calendar reminders. The Agency confirmed that the information held relates only to the Applicant's daughter [one child's name]. This information was reiterated in its supplementary decision, when the Agency undertook further searches for any material falling within the scope of the application and identified two additional documents relevant to the applicant's request. 14 As part of this review, the Agency also confirmed that the information located by its searches includes emails, file notes, home schooling application, Authorised Person report, auto-generated letters, emails and family history record. 15 The Applicant contends that additional information should have been located. In particular, the Applicant submits that additional documents likely arise in relation to phone records and documents in connection with an individual names Ms Grewal. The Applicant has also queried documents between the Agency and other third-party agencies such as the Department of Education, Police and Department of Communities and Justice. 16 During this review, the Agency confirmed the keyword searches conducted relating to the access application are as follows: - Child's first name [each child's first name] - father's first name [two versions of name] - child and father's surname [surname] - child's full name [each child's full name is set out] - father's full name [two versions of full name set out] - Home schooling number [number set out] 17 The Agency also explained that the searches included: "… to check email inbox, sent items, diary entries and text messages for any messages regarding the applicant [name] or child [name] TO the applicant OR to any other person or agency". 18 Although the Applicant contends that further information should exist, I have reviewed the search terms provided together with the areas the Agency advised were searched, together with the scope of the request. In my view the searches applied by the Agency would have captured the relevant documents that relate to the Applicant's access application having regard to the terms used and locations. 19 While I acknowledge no further information was found by the Agency, the fact that the Agency did not find certain kinds of records sought by the Applicant does not necessarily mean that the Agency's search was unreasonable … 20 Similarly, while the Applicant believes that further efforts on the part of the Agency could locate additional information, it is important to recognise that the GIPA Act requires only that an agency undertakes such searches as are "reasonably necessary" in the circumstances … using "resources reasonably available to the Agency" … 21 While the Applicant asserts circumstances where he believes the documents would exist "outside the usual searches", there is no information available to me that suggests that the searches that were conducted by the Agency were not reasonable or sufficient. 22 Therefore, I am satisfied that the Agency has undertaken reasonable searches and undertaken further enquiries resulting in its supplementary notice of decision to determine whether information is held. 1. In relation to the agency's decision to redact some of the information released to the applicant, the Information Commissioner's delegate determined that she was not satisfied that the agency's decision was justified. Pursuant to s 93 of the GIPA Act the delegate recommended the Agency make a new decision in relation to the information it refused to provide access to by way of an internal review. 2. The agency accepted the Information Commissioner's recommendation and made a new decision with respect to the information that that been redacted in its original decision. By Notice of Decision dated 6 September 2022, the delegate of the agency determined to provide access to all information that had previously been redacted except for one document which is "Document 16". I note that the unredacted material revealed the Authorised Person's name to be Ms Grewal. 3. Document 16 is described in the schedule to the decision as a "photograph of diary entry made by Authorised Person for initial home visit". The redacted portion of Document 16 contains the personal information of various other individuals unrelated to applicant and his access application. The agency refused to provide the applicant with access to that information on the basis that there was an over-riding public interest against its disclosure because of the considerations found in clauses 3(a) and 3(b) of the Table to s 14 of the GIPA Act (reveal an individual's personal information and contravene an information protection principle respectively). 4. In section 3 of its Notice of Decision of 6 September 2022 the agency says the following in relation to its searches for information responsive to the applicant's access request: 3 Searches for information As per the: Notice of decision in GIPA 22/308, dated 11 April 2022; and Supplementary notice of decision in GIPA 22/308, dated 29 April 2022. It is thus clear that the agency relied for its internal review decision on the searches that has been carried out previously. The focus of the internal review decision was on the information that had been redacted before its release to the applicant. Reviewable decision 1. The reviewable decision for the purposes of these proceedings is the agency's internal review decision of 6 September 2022. In section 3 of the Administrative review application form he filed on 20 September 2022 the applicant states as the grounds for his application: The Agency has not been forthcoming with documents they refuse to provide. I am entitled to such documents under the GIPA Act. The IPC asked them to provide these documents and they simple (sic) did not comment nor make any effort to explain why they are not providing these documents I am entitled to. 1. In his submissions filed on 13 December 2022 the applicant says the following in relation to the grounds for his application: 3. … I indicate I have read the respondent's submission and indicate, to the extent that the search for information is complete I am satisfied with the access granted. Adequacy of search 4. My motive for making application to NCAT is that I am not satisfied with the adequacy of searches conducted as a result of my request for information. 5. During the Information and Privacy Commissioner's (IPC) Review I raised concerns with the Commissioner in respect of the adequacy of the respondent's searches. At paragraph 15 of the IPC's review … the reviewer rights (sic) [paragraph 15 is then set out] 6. In paragraph 2 of that review the IPC reviewer makes a determination step in her review that "there is no information available to me that suggests that the searches that were conducted by the Agency were not reasonable or sufficient". The reviewer's reason for this was set out in the five preceding paragraphs. 7. The reviewer then went to make other determinations in her review – see paragraphs 23 through 32 – that gave rise to a new decision being made by the respondent on 2 September 2022 … Unsurprisingly, the new decision did not address further searches. 8. The authorities acknowledge that searches are never absolutely complete. 9. I wish a further specific search to be carried out that may not have been carried out (the decision reasoning of the IPC only talks about searches in general terms) by the respondent and which is not specifically addressed in any of the decisions made. 10. Consistent with term 4 of my request, I am specifically requesting a search be carried out for text messages between Ms Grewal's (government) mobile phone and Detective NSW Police Sergeant Matthew McQueen's mobile number (mobile phone number set out) that relate to me and my daughters. This should be a relatively simple search to conduct. 1. I thus understand that the objective of the applicant's Administrative Review Application is not to dispute anything about the information to which he has been provided with access, including the redactions to Document 16. This appears from what the applicant's states at paragraph 3 of his 13 December 2022 submissions. That is in contrast to what he appears to state in his Administrative review application. Rather his objective is to contest the adequacy of the searches for information the agency has conducted for information that is responsive to his access request. Contentions of the parties Applicant 1. As is set out above, the applicant's case, in summary, is that the agency's searches for information that is responsive to his access application have been inadequate. Specifically, he contends that there has not been an adequate search of the phone records of Ms Grewal and Sergeant McQueen. 2. The applicant contends on this basis that his Administrative review application is not misconceived or lacking in substance. He submits that the agency's Application for matters ought to be dismissed and his Administrative review application set down for hearing. Agency 1. The agency submissions were filed on 2 December 2022, before the applicant filed his submissions on 13 December 2022. They thus respond to what the applicant stated as his grounds for review in his Administrative review application. 2. In this respect, the agency submits that the applicant is mistaken, because it plainly did adopt the Information Commissioner's recommendations and has released to him all information it had identified as falling within the scope of his access request without redaction. It submits, in effect, that while the Tribunal has jurisdiction under s 80(d) of the Act to review a decision to provide access to information, such a review would be a futility in this case because all information held by the agency falling within the scope of the applicant's access request has been released to him. 3. The agency submits that the only exception to the above are the redactions to Document 16 in relation to which there is plainly an overriding public interest against disclosure because of considerations 3(a) and 3(b) of the Table to s 14 of the Act. Additionally, the agency submits that it was also authorised under s 74 of the Act to delete this information from Document 16 because it did not concern the applicant or matters raised by his access application and was therefore "irrelevant" to his access request. 4. It submits that it is established law that a decision to delete irrelevant information from a document is not a reviewable decision under s 80 of the GIPA Act, citing as authority for that proposition Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 and Shaw v Secretary, Department of Education [2021] NSWCATAD 224. 5. For the foregoing reasons the agency submits that the applicant's Application for administrative review is misconceived and lacking in substance and ought to be summarily dismissed as an abuse of the Tribunal's process. Applicable law 1. The agency applies for an order summarily dismissing the applicant's Application for administrative review pursuant to s 55(1)(b) of the NCAT Act, which provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances – … (b) if the Tribunal considers that the proceedings are frivolous, or vexatious or otherwise misconceived or lacking in substance, … 1. In Alchin v Rail Corporatation NSW [2012] NSWADT 142 at [26] it was held in a different legislative context that the word "misconceived" is to be construed as including a misunderstanding of legal principle and the words "lacking in substance" as encompassing an untenable proposition of fact or law. This approach was cited with approval by an Appeal Panel of the Tribunal with respect to s 55(1)(b) of the NCAT Act in Long v Metromix Pty Ltd [2019} NSWCATAP 198 at [77]. 2. It is well established law that an application ought not to be decided in a summary way other than in the clearest of cases and with exceptional caution. In considering an application for summary dismissal, the substantive applicant's case must be taken at its highest. It falls to the summary dismissal applicant to establish that the substantive applicant's case is so obviously untenable that it cannot succeed, is manifestly groundless, or discloses a case which the court is satisfied cannot proceed: General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256. The GIPA Act 1. The object of the GIPA Act is found 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, sets out the process for dealing with access applications. Section 53 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, 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 – (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, … (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. Part 4, Division 6, deals with how access to government information is provided. Section 74 permits the deletion of information from the copy of a record to be accessed in certain circumstances: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information. 1. Part 5, Division 1, deals with reviewable decisions. Section 80 provides, relevantly, that the following decisions are reviewable: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are "reviewable decisions" for the purposes of this Part – … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, … 1. A person aggrieved by a reviewable decision of an agency is entitled to have that decision reviewed by the Information Commissioner under Division 3 of Part 5: s 89. On such a review the Information Commissioner may make such recommendations to the agency about the decision as the Information Commissioner thinks appropriate (s 92), including a recommendation that the agency reconsider the decision and make a new decision as if the decision reviewed had not been made: s 93. 2. A person aggrieved by a reviewable decision of an agency is also entitled to have that decision reviewed by the Tribunal under Division 4 of Part 5: s 100. 3. 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. 1. In the present case there was no express decision that the agency does not hold further information that is responsive to the applicant's access request other than that which has been provided to him. However, such a decision is implicit in the reviewable decision and is capable of being reviewed pursuant to s 80(e). In this respect an Appeal Panel of the Tribunal stated in Robinson v Commissioner of Police [2014] NSWCATAP 73 at [8]: 8. The question of whether all documents have been located becomes a reviewable decision in the following way. If the agency's answer is that it has no further documents in relation to the information sought, that is a decision 'that the information is not held by the agency' (s 58(b). A decision that government information is not held by an agency is a reviewable decision (s 80(e)). Such a decision may be said to be an implied decision in any decision responding to an access application. Consideration 1. The applicant now accepts that he has been provided with access to all the government information the agency identified as falling within the scope of his access request. In any event, subject to the redaction of Document 16, I also make that finding independently of the applicant's position on the issue. Consequently, although a decision to provide access to information is reviewable pursuant to s 80(d) of the GIPA Act, there would be no utility in such a review. It could not lead to any decision that would provide a greater benefit to the applicant than the decision the agency has already made. The application for administrative review is manifestly groundless in this respect. 2. The applicant also now does not challenge the redactions made to Document 16. In any event, independently of the applicant's position, it is manifest on the documents before me that those redactions are personal information of persons who are unrelated to the applicant's access application. I am therefore satisfied that this information is "not relevant to the information applied for" within the meaning of s 74 of the GIPA Act, and that the agency was therefore entitled to delete it from the copy of Document 16 it provided to the applicant in accordance with that section. I accept the agency's submission that a decision to delete irrelevant information pursuant to s 74 is not a reviewable decision under s 80 of the GIPA Act or otherwise. An application for administrative review of a decision made pursuant to s 74 is therefore misconceived in the sense that it is a misunderstanding of legal principle. I am satisfied that it cannot proceed for this reason. 3. To the extent that the applicant seeks administrative review of the searches for information the agency conducted for information it held at the time of his application which was responsive to his application it is also misconceived. The Tribunal has no express power to review the sufficiency of searches conducted pursuant to s 53. 4. However, the Tribunal does have jurisdiction under s 80(e) to review a decision of the agency that information that is responsive to an access application is not held. The agency never made an express decision to this effect in this case. Nevertheless, such decisions are implicit in the delegate's decisions of 11 April 2022 and 29 April 2022. The agency must be taken by those decisions to have considered it had complied with the requirements of s 53 in terms of conducting reasonable searches for information responsive to the applicant's access request and that additional information responsive to it was not held by the agency. These decisions were incorporated into the reviewable decision of 6 September 2022 by the agency's reliance upon them and its decision not to conduct any further search for the purposes of its internal review. The Tribunal does have jurisdiction to review that implied decision in accordance with the principles established in Wojceichowska. The applicant's administrative review application is not misconceived in this respect. 5. Rather, in the context of this summary dismissal application, the issue is whether this element of the applicant's case is so lacking in substance as to constitute an abuse of process. 6. 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 objects of the GIPA Act, 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. 7. 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. 8. The records the agency searched for information that is responsive to the applicant's access request are set out in the decisions of 11 and 29 April 2022. They included searches of "telephone-based software" and telephone "text messages". The 29 April 2022 decision included a request to the Authorised Person, Ms Grewal, "for all relevant records", and included "searching telephone-based software" and telephone "text messages". It must reasonably be accepted that a search of all Ms Grewal's relevant records which included "text messages" would identify any text message communications between her and Sergeant McQueen. 9. The applicant is critical of the agency's search descriptions as being in "general terms", which I understand to mean that he is concerned that each specific search is not itemised. It is true that the agency's search descriptions are set out in general terms. However, in this respect the agency receives considerable assistance from the findings of the Review conducted by the Information and Privacy Commission under s 13 of the GIPA Act which interrogated this issue. 10. At paragraph 16 of the Review Report the delegate of the Information and Privacy Commission sets out the keyword searches the agency conducted in its attempt to identify information that was responsive to the applicant's access request. It must reasonably be accepted that those keyword searches were logical and comprehensive. In this respect, I adopt the conclusion reached by the delegate set out at paragraph 18 of the Review Report: 18. … I have reviewed the search terms provided together with the areas the Agency advised were searched, together with the scope of the request. In my view the searches applied by the Agency would have captured the relevant documents that relate to the Applicant's access application having regard to the terms used and locations. 1. In his submissions the applicant states as justification for his belief that further information is held that "the authorities acknowledge that searches are never absolutely complete". It is not clear to me what the applicant means by his use of the word "authorities". If he means cases decided by Courts and Tribunals, none are cited in support of that proposition. I am unaware of any decided case which stands for the principle that an agency must engage in perpetual searches for information because every search is imperfect. That is plainly not the law. Section 53(2) obliges an agency to undertake "reasonable searches". A reasonable search must be taken to be one that is finite and proportionate to an access request. 2. The applicant has not drawn attention to any document or matter before or after the reviewable decision which implies the existence of information held by the agency that has not been identified as responsive to his access request. His assertion that there must be such additional information is entirely speculative. On the material before me, there is no objective basis for this belief and there is no surrounding evidence that lends any support to it. 3. I am thus satisfied that the applicant's attack on the agency's implied decision that it does not hold further information responsive to his access request is so weak that it is doomed to fail. It is manifest that the agency has conducted reasonable searches for information held by it that is responsive to the applicant's access request. That includes a search of Ms Grewal's records, including her text messages. There is nothing in the material filed by the parties that would justify the Tribunal directing the agency to repeat searches for information it has already carried out. 4. For the foregoing reasons this element of the applicant's case is so lacking in substance that it constitutes an abuse of process. It is obviously untenable and manifestly groundless and should be summarily dismissed on this basis. Orders 1. For the foregoing reasons I make the following orders: 1. A hearing of the respondent's Application for Miscellaneous Matters (summary dismissal) filed on 2 December 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The applicant's Application for Administrative Review filed on 20 September 2022 is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). ********** 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: 02 June 2023