Administrative Decisions Tribunal New South Wales Medium Neutral Citation: McCabe v Workers Compensation Commission [2012] NSWADT 30 Hearing dates: 14 December 2011 Decision date: 01 March 2012 Jurisdiction: General Division Before: Judicial Member N Isenberg Decision: 1. The decision under review is set aside. 2. The orders sought by the applicant were not discussed at the hearing. I direct the parties file draft Short Minutes of Order within 14 days of the date of this decision. Category: Principal judgment Parties: Applicant: David McCabe Respondent: Workers Compensation Commission Representation: Applicant: In person Respondent: Crown Solicitor File Number(s): 113218 DECISION Background 1By letter dated 26 May 2011, pursuant to s. 41 of the Government Information (Public Access) Act 2009 (GIPA Act), the applicant sought access to documents held by the Workers C ompensation Commission (WCC) in the following terms : (a) all documents including memoranda, file notes, emails and correspondence, which led to the production of the Table referred above; (b)any reports, correspondence or memoranda in respect of the provision by you of the Table to Mr Thompson, either before, at the time or after its provision; (c)any documents produced within the Workers Compensation Commission in respect of the provision of the Table to Mr Thompson from September 2009 to date; (d)any further communications between the Workers Compensation Commission and/or your office and any other body or person regarding the manner in which I have conducted legal practice re workers compensation commission matters; (e)any file regarding myself. 2In response, on 21 June 2011, the respondent's Manager, Executive Services, Geoffrey Cramp, provided the applicant with a number of documents falling within the scope of paragraph (d) of the application. With respect to the information falling within paragraphs (a), (b), (c) and (e) of the application, Mr Cramp responded that the information was not held by the respondent: s. 58(1)(b) of the GIPA Act. 3On 8 August 2011, the applicant filed an application seeking review of the respondent's decision. The applicant disputed the respondent's decision that it held no documents falling within paragraphs (a), (b) and (c). He asserted that a spreadsheet ('the Table'), to which access had been provided by the respondent in response to the application, could only have been compiled following some administrative direction within the respondent's organisation and that that compilation of the Table required research, access to files and to the information set out in the Table. On that basis, the applicant submitted that the respondent must have documents falling within categories (a), (b) or (c) of his application. The applicant attached to his application documents to which he had been given access by the WorkCover Authority (WCA) pursuant to an application he had made to the WCA under the GIPA Act. He asserted that the documents indicated that the Table had been provided to the WCA by the WCC and that "it could not have been compiled in a vacuum". 4At the first planning meeting, on 22 September 2011, at the applicant's request, the respondent agreed to conduct further searches for documents relating to how the Table came into existence. On 11 October 2011 Mr Cramp swore an affidavit (the first affidavit) deposing to the steps taken within the WCC in response to the applicant's application of 26 May 2011 and to the further search conducted for the documents on 10 October 2011, as a result of which, further documents were provided to the applicant. 5On 18 October 2011, Mr Cramp swore a further affidavit (the 2 nd affidavit) in which he deposed to how a further document was found on 14 October 2011 and that it, also, had been provided to the applicant. Mr Cramp also deposed to finding three documents relating to the complaint-handling function of the Legal Services Commissioner in respect of which the respondent claimed a conclusive overriding presumption against disclosure of "excluded information" pursuant to Sch. 2 cl. 2 of the GIPA Act. 6At the second planning meeting, on 18 October 2011, again, at the applicant's request, the respondent agreed to produce any documents generated in conducting the searches made by the respondent with respect to the application and the searches conducted after the first planning meeting. 7On 27 October 2011, Mr Cramp swore a third affidavit (the 3 rd affidavit) explaining in detail the searches he and others had undertaken. Issue 8In essence, the applicant 's complaint is that the search for the documents was and continues to be inadequate, because subsequent searches, only conducted when provoked by the applicant , had found further documents. Given the piecemeal provision of material, and that it was only on further searching that additional documents were provided, the applicant was not confident that all relevant material had been provided. 9The respondent asserts that it has given the applicant all the documents which it has within the scope of the application - and more. 10The only issue before the Tribunal was whether I can be reasonably satisfied that the respondent has undertaken such reasonable searches as may be necessary to find any of the documents applied for that it held when the application was received. Legislative framework 11Section 53 of the GIPA Act sets out the obligations of agencies in locating government information in response to a request: (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. 12S80(e) of the GIPA Act provides that a decision that government information is not held by the agency, is reviewable by the Tribunal. This differs from the predecessor the GIPA Act , the Freedom of Information Act 1989 (FOl Act). The hearing 13Mr Cramp was called to give evidence at the hearing and was cross-examined at length. He adopted his affidavits, noting that the final affidavit (Exhibit R3) detailed the complete searches conducted by the respondent. 14In his evidence Mr Cramp said that the WCC's files consist of 'application' files and 'admin' files. Where admin files are stored depended on the circumstances in which they were created and they may be stored on individual desktops or on the central (TRIM) system. The 'S drive' is the main central drive and that is where the files relevant to the applicant 's request were likely to be located. 15In cross-examination he was asked about the various searches that had been undertaken prior to the matter coming before the Tribunal. In essence, he had relied on the reports of others as to the searches conducted. 16After the first planning meeting he conducted searches with Mr Parsons, the Deputy Registrar. On about 7 October 2011 they sat together at Mr Parsons' computer and searched his emails for the word "McCabe" in "All mail items" which searched for the phrase in the text and title of all emails, in all folders in the Inbox, Deleted Items, Drafts and Sent Items. No further documents were found. 17On the same day, they also went through the folders on Mr Parson's hard drive that were most likely to hold relevant documents. These were administrative type folders: for example, the Cost Assessor Group (CAG) folder which contains the agendas and minutes of the CAG meetings. They reviewed any documents which from their date or title may have been relevant, but nothing was found. 18On 10 October 2011 Mr Cramp personally conducted a search of the WCC's computer system for relevant documents: he searched for "McCabe" as "a word or phrase in the file" in the folders entitled "Executive", "Executive Admin", "Presidential Unit", and "Common". He considered these folders to be where it was most likely that relevant documents would have been saved. It was during this search that he located minutes which were annexed to his first affidavit, an email dated 18 September 2008, and the Table referring to assessed costs. 19He also searched the paper archive file of the President/Registrar Meetings and located an email dated 18 September 2008, which was also annexed to his first affidavit. As the email was addressed to the Registrar, he asked the Registrar to search her emails for relevant documents about Mr McCabe. She located the original email and the previously provided emails relating to the WorkCover Fraud Investigation Branch's request to access the WCC's files, which were annexed to the letter of determination. 20He also searched the WCC's TRIM file management system for all admin files and documents, using the word "McCabe". He located a reference to correspondence with the Legal Services Commissioner, but understood from the applicant that it was no longer required . 21On 17 October 2011, with the President and Mr Parsons, he conducted a search of his Honour's email on his personal computer, but did not find any additional relevant documents. 22On the same day Mr Parsons told him that on 14 October 2011, while looking through old emails for a different purpose he had found a relevant email and documents. The email, from Mr Parsons to the President , dated 1 May 2009 had as an attachment a Word document named "Cost A ssessment s 2008", a document that appeared to be a draft of the Table. He believed that the reason the email from Mr Parsons to the President , dated 1 May 2009 and headed 'Cost Assessments 2008', which was attached to his 2 nd affidavit, was not found earlier was because it did not contain the word "McCabe" within the title or the text. 23Mr Cramp said in cross-examination that no search was made for that document nor did they search for 'Cost Assessments 2008', either at that time or subsequently. He agreed that Mr Parsons' hard drive and the WCC's S drive were obvious places to look for documents associated with that document, which, he agreed, was relevant to the application. Also Mr Parson's email had not been searched for further emails bearing this subject. He agreed that searching by that term might have revealed further documents associated with that document. 24It was on the 'S' drive that the Table was located. He agreed that it was an unusual document and that the WCC did not normally consider cost assessment s of individual solicitors. Mr Cramp also agreed in cross-examination that no search had occurred as to how the final version of Table came into being. He said it looked like the files had been gone into in order to get the level of detail in the Table. He agreed that he did not look for any written instruction to prepare the Table. Neither did he search anything about cost assessment s in 2008 between date of the 2 versions (May-September 2009). Different versions of the document about assessed costs could have been described differently but his expectation was that if it was saved on computer it would have turned up. Archives might have had to be searched and he did not look for any archive request forms. 25As to whether he found any complaint by parties about the applicant not forwarding disbursements, he made no enquires in case management system if there was a complaint, or allegation of fraud. He expected to have found a complaint about the applicant to have turned up. He did search the TRIM complaint file but that file was in respect of complaints about WCC staff. 26After the second planning meeting on 18 October 2011, on 21 October 2011, he asked Mr Parsons what searches he had performed in response to Mr McCabe's application of 30 May 2011. Mr Parsons told him that he had conducted electronic searches of his emails and an electronic search for documents on the WCC's computer system. Mr Parsons told him that he had conducted the email search, as described above. Mr Parsons told him the search identified several relevant emails that were provided to Mr McCabe in June 2011. 27Mr Parsons told him that he also searched for documents on the computer system using the word "McCabe" as "a word or phrase in the file". This search looked at the text of all documents saved in all folders to which Mr Parsons had access. The Table was found by this search. On 21 October 2011 Mr Cramp and Mr Parsons repeated this search. Although the search did find documents with the word "McCabe" in the text, it did not find the minutes of the President/Registrar weekly meeting. 28At Mr Cramp's request, Mr Parsons then tried to open the Presidential Unit folder and ascertained that access to the Presidential Unit folder on the computer system was denied. Mr Parsons' search did not find the documents contained within the Presidential Unit folder and these were therefore not provided to the applicant in response to the original application. (Mr Cramp had found the President/Registrar minutes in his search on 10 October 2011 because he had access to the Presidential Unit Folder on the computer system.) 29On 27 October 2011, Mr Cramp asked the President what searches he had conducted in relation to the application on 30 May 2011. The President told him that he looked through the filing cabinets in his office for a physical file in relation to Mr McCabe and that the only documents he found were the correspondence with the Legal Services Commissioner. At the time they did not consider this correspondence was relevant to Mr McCabe's application. 30In relation to electronic documents, the President told him that all his correspondence is dictated by him, prepared by his Administrative Associate and saved in the Presidential Unit folder on the computer system. Some documentation, such as the minutes of the President/Registrar weekly meeting, are prepared by his Senior Research Associate and these also are saved in the Presidential Unit folder on the computer system. 31On 27 October 2011, Mr Cramp and the President reviewed the hard drive on the President 's personal computer and found there to be no sub-folders and only a small number of documents saved to this drive. No documents relevant to the application were found. 32In relation to the above searches no documents were generated by Mr Cramp to direct the individuals as to how to conduct the searches. As the WCC is a relatively small organisation located in one office he went to the offices of the individuals and discussed the matters with them in person. 33On 27 October 2011, he asked Mr Parsons whether any documents were generated between himself and the President in relation to the searches that have been conducted. Mr Parsons told him that no documents had been generated and that all communications had been by way of discussions in person. Consideration 34The approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, as to what constitutes a sufficient search has been adopted by the Tribunal in a number of cases, in particular, in Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201, DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213; Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]; O'Hara v North Sydney Council [2005] NSWADT 100 at [11]; and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56. 35In Shepherd it was said at [19] that there were two questions for consideration : (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. 36In Beesley v Commissioner of Police [2002] NSWADT 52 the Tribunal described its role : 19 To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate the custodians of agency documents. All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s39 of the Administrative Decisions Tribunal Act 1997 (NSW).' 37In Curtin the President described the Tribunal's role: The task for me is to reach a conclusion, on the basis of the material now before me, as to the sufficiency of the search. Can it be said, fairly, that there are documents in existence relevant to this request which have not been located by the respondent? What I have before me is a deep-seated distrust of the respondent on the part of the applicant; instances of further documents being located after additional searches; and.... 38The task before the Tribunal is not an easy one, but simply put, the Tribunal must come to a view whether there may be some further documents relevant to the application and, if so, whether the respondent has tried hard enough to find them. Are there reasonable grounds to believe that there are additional documents? 39The applicant submitted that the respondent 'must have' documents falling within the scope of his application. The respondent submitted that there is no basis for the applicant's submission that further documents exist which have not been provided and was critical of the applicant 's contentions in circumstances where the only evidence before the Tribunal was that on behalf of the respondent. It is hardly surprising though, in my view, that unless an applicant has some precise knowledge of what is held by an agency - such as having authored a document sent to the agency - that he or she would be in a position to lead evidence as to documents he or she suspects are held by the agency and are missing. 40The respondent submitted that the Tribunal needed first to be satisfied that the searches had not been adequate. I do not agree that the Tribunal must first establish that the searches are inadequate, and is not consistent with the Shepherd approach. I do accept though that there is some overlap in consideration of the two limbs of Shepherd such that the overall consideration may appear somewhat circuitous. 41Mr Cramp's evidence was that he expected to have found a complaint about the applicant, but did not find one. Such a document may have provided an explanation as to why the Table was prepared in the first place. He agreed that he did not look for any written instruction to prepare the Table. Nothing was located about cost assessment s in 2008 between date of the 2 versions (May-September 2009) of the Table, which he said, could have been described differently. The evidence was that no search had occurred as to how the final version of Table came into being and Mr Cramp said it looked like the files had been gone into in order to get the level of detail in the Table. Archives might have provided an answer but these were apparently not searched. 42Applying the first limb of the Shepherd test I have come to the view that there are reasonable grounds to believe that some further documents exist. In particular, it is reasonable to assume that there was either a complaint from a member of the public or that the respondent itself decided to generate an evaluation of the applicant 's costs. In either event, it is reasonable to expect some documentation to that effect. Similarly, notwithstanding the respondent's office is small, it is reasonable to expect that some note may have been made in the course of modifying the two versions of the Table. Did the respondent undertake reasonable searches to find the documents? 43The respondent agreed that at first it had not conducted an optimal search, but stressed that it was only necessary for the Tribunal to find that a reasonable search had been undertaken. The 3rd affidavit sets out the searches undertaken on behalf of the respondent, and I accept that Mr Cramp, and others, undertook the searches in good faith. 44In Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30] the President considered the key factors in assessing whether a sufficient search had been carried out. There he said that these factors included, relevantly, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be reasonably inferred by the agency from any other information supplied by the applicant. However, what constitutes a sufficient search will vary with the circumstances. 45In Patsalis at [63], the President said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate: see also O'Hara . In Patsalis , the documents to which the applicant sought access existed at some point, having been provided by the respondent to the Director of Public Prosecutions, but subsequently lost. Numerous searches were conducted but failed to find them and, ultimately, his Honour concluded (at [59]) 'that it would be a waste of time to ask the agency to do any more searches'. In my view, this matter differs from Patsalis . It is not a matter where documents have been identified, then lost and cannot now be located. I do not accept that the documents that have been located, exist in isolation. 46The respondent relied on Mr Cramp's 3rd affidavit as providing a full explanation as to what transpired in conducting the searches. The applicant, plainly, has no confidence in the thoroughness of the respondent's searches. I accept the respondent's submission that there is nothing untoward about further searches being conducted and revealing further documents in these types of proceedings, but it does beg the question as to when the respondent could be said to have exhausted the avenues reasonably available to it to the extent required by the legislation. 47I accept that it is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69]. However, I do not consider that to be the position. The applicant's concerns were well-founded. The evidence was that notwithstanding the Table was located, no further search was made for a document similarly described or emails to which such a document might be attached, notwithstanding that he could identify obvious places to look and that searching by the same term might have revealed further documents. 48In Cianfrano at [65], the Tribunal held that it must be satisfied that an agency's determination is a fully responsive one. I was referred, by contrast, to Chu v Telstra Corporation Ltd [2005] FCA 1730 at [35], where Finn J said, with regard to s. 24A of the Commonwealth FOI Act that it was not meant to be a refuge for the disordered and the disorganised. The Commonwealth FOI Act however, requires an agency to take 'all reasonable steps' to locate a document before determining that it cannot be located or does not exist, and that, in my view, is a more rigorous test than that in the GIPA Act. Having said that, I do not consider that the endeavours undertaken on behalf of the respondent to retrieve all the relevant documents, albeit in good faith, amounted, in the circumstances, to a reasonable search. DECISION 49The decision under review is set aside. ORDERS 50The orders sought by the applicant were not discussed at the hearing. I direct the parties file draft Short Minutes of Order within 14 days of the date of this decision. ********** 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: 01 March 2012