Chant v Gwydir Shire Council [2012] NSWADT 20

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Chant v Gwydir Shire Council [2012] NSWADT 20 Hearing dates: On the papers Decision date: 10 February 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed Catchwords: Government Information (Public Access) - sufficiency of search Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Category: Principal judgment Parties: Robert Walter Chant (Applicant) Gwydir Shire Council (Respondent) Representation: T Farrell (Applicant, agent) C Southwell (Respondent, agent) N Case, (the Information Commissioner) File Number(s): 113222

REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): the Applicant has applied to the Tribunal for external review of a determination by the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act").

Background 2By an application dated 4 February 2010 the Applicant applied to the Respondent pursuant to the GIPA Act for information concerning a trophy ("the trophy") that he had donated to the Respondent. The Applicant's access request was in the following terms: "I request access to document(s) concerning: All information as to the sale - by auction - of a trophy I donated to be awarded a Pumpkin Festival. Date of sale, name of licensed auctioneer, name of purchaser, purchase price and any other relevant details." 3By letter dated 23 February 2010 from Ms Carmen Southwell, the Respondent's Publicity Officer, the Applicant was advised: "Council records show that the last Pumpkin Festival was held in 2006 and that you donated a soup tureen. Council Staff recalls that this item was placed on a table and sold for approximately forty ($40) dollars. The writer stated in a previous letter to you dated 26th July, 2010 that this item was auctioned, however this was incorrect. The item was simply displayed on a table and sold. No receipt was issued by Council for this sale, and there is no record as to who purchased the item. A copy of the writer's file note is attached." 4The Applicant was dissatisfied with Ms Southwell's response and wrote seeking further information from the Respondent. 5It is apparent from the correspondence provided to the Tribunal that discussion between the parties has focused on the Applicant's demand that the Respondent return the trophy and not merely on the information sought by his application under the GIPA Act. 6By letter dated 7 March 2011 the Respondent's General Manager, Max Eastcott, wrote to the Applicant and advised: "Council refers to your letter of 28th February 2011 and your application for formal access under the Government Information (Public Access) Act , 2009 dated 4th February 2011. Council has endeavoured, in good faith, to find an item described by you as a 'pumpkin trophy'. In your latest letter you write that the trophy is not white. Please note that when Mr Farrell attended the Council office on your behalf to inspect a trophy he said that it was not yours and further, he described the 'pumpkin trophy' to Mrs Southwell, as a white soup tureen. To avoid further confusion would you please describe the item in detail. Once Council has received a full description of the item another search may be undertaken. However, as you donated the item almost five years ago the search may prove fruitless. The search may also involve a fee." 7The Applicant was again dissatisfied with the response he received and on 15 March 2011 wrote a terse reply to the Respondent. In return, Mr Eastcott wrote to the Applicant as follows: "Council notes receipt of your letter dated 15th March 2011. You are now advised that the Council will no longer even acknowledge or respond to any letter submitted under your signature or Mr Farrell's signature or any other stooge signature that Mr Farrell may involve in his on-going paranoia with Council that relates to any issue that is considered closed and dealt with by the Council." 8It is apparent from the tone of the correspondence that the relationship between the parties is a difficult one. 9On 31 March 2011 the following resolution was passed by the Council: "THAT Gwydir Shire Council no longer wastes any further time or resources on correspondence received from Mr Tom Farrell or written by Mr Farrell on behalf of a third party. FURTHER that any Gophers bearing offensive signs be banned from entering the Bingara CBD." 10It appears that the Applicant also sought assistance from the office of the Information Commissioner ("the OIC"). By letter dated 10 June 2011 the Applicant was advised: "The OIC considers that the Council's decision dated 23 February 2011 did not fully comply with the GIPA Act. In particular, the Council should have advised you of your reviews rights (section 126(c) of the GIPA Act). The Council's decision could also be improved by setting out the searches that were conducted in processing your access application. The Council is required to carry out "reasonable searches" for the information requested (section 53(2) of the GIPA Act). The OIC has provided the Council with a template and further information to assist the Council in writing decisions that comply with the GIPA Act. The DIC has recommended that the Council reissue you with a new decision that better complies with the GIPA Act and, in particular, sets out the searches that the Council has undertaken. The Council has agreed to this recommendation. This review is now closed." 11The OIC also provided its opinion to the Respondent. 12The Applicant lodged an application with the Tribunal on 10 August 2011. He gave as the grounds for his application: "This ongoing saga started about May 2010. After recalcitrance and prevarication by G.S.C I made a FOI application on 4/2/11. I have tried all ways known to force G.S.C to return the trophy and make reparation"