Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Colefax v Department of Education and Communities (No1) [2013] NSWADT 42 Hearing dates: On the papers Decision date: 19 February 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: 1 The Tribunal finds that Ms Colefax's applications numbered GIPA -12-030 and GIPA -12-031 by the Agency are related for the purposes of s 60(3) of the Government Information (Public Access) Act 1999. 2. This matter be listed for hearing on Wednesday 27 March 2013 at 10:00AM. 3. The hearing shall, subject to any order made to the contrary, be restricted to hearing evidence concerning the respondent's contention that the time involved in dealing with the application would require an unreasonable and substantial diversion of the agency's resources. 4. Any evidence the Agency wishes to rely on concerning the time involved in dealing with the application shall be filed and served by 15 March 2013. Catchwords: Government Information Public Access - unreasonable and substantial diversion of the agency's resources - aggregation of related access applications for the purpose of determining - meaning of "related" - past applications Legislation Cited: Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989 Government Information (Public Access) Act 1999 Cases Cited: Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Re Shewcroft and Australian Broadcasting Corporation [1985] 2 AAR 496 Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 Category: Interlocutory applications Parties: Margaritte Colefax (Applicant) Department of Education and Communities (Respondent) Representation: Applicant - W Blunt (agent) Respondent - M Moore File Number(s): 123070 reasons for decision Background 1Ms Colefax is an employee of the Department of Education and Training (the Agency). Since 2008 she has been in dispute with the Agency concerning its treatment of her. She had made a number of claims against it under workers compensation legislation. There have been proceedings between her and the Agency in both the Workers Compensation Commission and the Industrial Relations Commission. 2It is not disputed that Ms Colefax has made a series of applications to access information under the Government Information (Public Access) Act 1999 (the GIPA Act) and its predecessor the Freedom of Information Act 1989 (the FOI Act). She alleges that she is has been refused access to that information as an employee and that the Agency has required her to seek access to the information more formally. 3These reasons relate to Ms Colefax's application for access to information under the GIPA Act that was received by the Agency on 9 February 2012 and sought access to: All information (in the broadest sense) received by, generated by and or dispatched by the Regional Director - Ms Simmons and /or her staff with regard to me. The information is to cover the period1 January 2011 and 5 February 2012. 4On the same day as it received that access application the Agency wrote to Ms Colefax and advised that it was likely to refuse to deal with the application under s 60(1)(a) of the GIPA Act, on the basis that dealing with it would require an unreasonable and substantial diversion of the Agency's resources. Ms Colefax was asked to amend her application but declined to do so. 5On 6 March 2012 the Agency refused to deal with Ms Colefax's access application under s 60(1)(a). When explaining that decision the Agency's principal information access officer wrote: The NSW Office of the Information Commissioner (OIC) has published frequently asked questions, one of which is 'what can determine an "unreasonable and substantial diversion of agency resources" when considering and processing an information request?' The response provided on the OIC website states: In relation to formal access applications, the GIPA Act provides discretion for agencies to refuse to search for information or deal with an application where this would require an unreasonable and substantial diversion of the agency's resources (see s 53(5) and s 60(1)(a)). Whether a diversion of resources would be unreasonable and substantial depends on the nature of the request and the capacity of the receiving agency. It will therefore vary between agencies and should be evaluated on a case by case basis. Questions to consider include: The size of the agency. Whether the agency has a dedicated GIPA unit whose core function it is to process information request. Staffing and agency resources for processing GIPA application. The number of active GIPA applications and perceived future demand based on recent trends. The scope and complexity of the request and the volume of information captured by the application. The apparent public interest considerations in favour of releasing the requested information. The age of the information and where it is located, eg, archived off-site or in a back-up system that is not easily searchable. The number and intricacy of necessary third party consultations. The expected time for processing the request from start to finish. In terms of reasonableness, smaller agencies with no dedicated GIPA unit that receive several large requests for information at the same time may not have the resources or staff to process the applications without significantly impacting on their ability to carry out the core work of the agency. This will obviously depend on the circumstances. The important thing to remember is that decisions not to search for information, or to refuse to deal with an access application, because of an unreasonable and substantial diversion of resources are reviewable decisions under the GIPA Act. Therefore, agencies should consider all information requests carefully, be specific with any reasons for refusal based on this ground, and document those reasons clearly. Addressing each of the points the OIC believe the Department should consider, it is worth noting that although the Department is one of the largest agencies with over 100,000 employees, the information Access (1A) Unit consists of only 6 people to process all applications (approximately 400 per annum) received by the Department. Each application is processed in turn, as received; hence an application received on 1 March is processed before an application received on 3 March and so on. If one applicant submits several applications on the same day, the resources are no longer equitably divided amongst all applicants. Page 3 of 4 Over the past 5 years you have had the following number of applications processed by the Department: 20 applications under the Freedom of Information Act 1989 (FOl Act) : 08-261, 09-022, 09-033, 09-034, 09-054, 09-100, 09-400, 09-401, 10-115, 10-141 to 10-149, 10240 and 10-241). 7 applications under the GIPA Act (GIPA-10-044, 10-045, 10-124, 11-095, 11-153, 11-154, 12-023. In addition to the above, a decision about access has not yet been made in respect of your current applications: GIPA-12-023, GIPA-12-030 and G1PA-12-031. GIPA-12-024 took a total of 25 hours to process and included granting you access in part to information that would also be covered by this (GIPA-12-030) application, in that similar emails and records would be captured by this application that have previously been considered. GIPA-12-023 is currently being processed and a decision about access is due to be made on or before 13 March 2012. This application includes consultation with 2 third parties and has so far taken a total of 21 hours to process. Additional time will be required to review the records and make a decision about access. It is likely this application will also take in the vicinity of 25 hours or more. Section 60(3) of the GIPA Act provides that the Department is entitled to take into account other applications made by the same applicant. Considering just your applications submitted this year with the Department, a total of 46 hours have already been spent processing your applications and will likely exceed 50 hours in total. In the decision of the appeal panel of the Administrative Decisions Tribunal in Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70, it was determined that 40 hours of processing was a substantial and unreasonable diversion of the Department's resources. Having regard to the above and the fact that you have not amended your application, after being invited to do so, I have today made a decision, in accordance with section 60 of the GIPA Act to refuse to deal further with your application, on the grounds that to do so would be a substantial and unreasonable diversion of the Department's resources. Should you still wish to obtain the information, I would recommend you submit a fresh access application, limiting the request to information not previously provided under either the FOl Act or the GIPA Act and submitting only one application at a time. 6 On 27 March 2012 Ms Colefax filed an application seeking external review of that decision in this Tribunal. 7At a planning meeting held on 26 June 2012 Ms Colefax amended the application by narrowing the request to documents. Despite this, the Agency subsequently maintained that the request still required an unreasonable and substantial diversion of its resources. The Government Information (Public Access) Act 2009 8The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(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 public release of government information by agencies, and (b) 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. 9"Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 10The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). 11The Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. 12There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. The public interest considerations against disclosure are limited to those set out in the Table to s 14. 13Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5). 14An access application is to be determined in accordance with s 58 - (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 (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (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. 15In exercising functions under the Act s 3(2) instructs that - 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 reasonable cost, access to government information. 16Section 80 sets out a series of decision that are reviewable decisions under the Act. It provides - The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (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, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object). 17Persons aggrieved by reviewable decisions have a number of options available to press their access applications, including seeking an external review by the Tribunal (s 100). When read with s 38 of the Administrative Decisions Tribunal Act 1997 this provision confers jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application." 18In any review of a reviewable decision s 105 places the onus of justifying the decision on the agency concerned. It provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. 19The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 20The Information Commissioner and any person who could be aggrieved by a decision on review has a right to appear and be heard in review proceedings (s 104). The Information Commissioner had not participated in this matter. 21Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It provides - (1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. Issues requiring determination 22In order to decide this matter the following issues have to be determined: * If, in determining whether dealing with Ms Colefax's application would require an unreasonable and substantial diversion of the agency's resources, this application and three others she made at about the same time can be aggregated? * In the light of the decision concerning aggregation, whether dealing Ms Colefax's application would require an unreasonable and substantial diversion of the agency's resources? Can Ms Colefax's applications be aggregated under s 60(3)? 23Section 60) of the GIPA Act provides that - (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note. See section 70. (d) ... (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. (3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application. 24The Agency relies on three factors to support its decision under s 53(5) to refuse to Ms Colefax's application for documents concerning her generated or dispatched by the Regional Director and staff within her regional office in the period 01/01/2001 and 05/02/2012. They are: * The number of applications submitted in total by Ms Colefax. * The time involved in processing the application. * The resources allotted to the Applicant overall. 25I do not accept that the number of previous applications submitted by Ms Colefax alone, or the resources previously allocated to dealing with them, are relevant factors that the Agency can take into account when refusing to deal with an application on the basis that request will require an unreasonable and substantial diversion of the agency's resources. While previous applications relating to substantially the same information having been determined is such a ground, previous applications that do not relate to the same information is not. In this case there is no material before me that suggest that Ms Colefax has previously requested or been granted access to the same information as that which is the subject of the current request. 26What is relevant is the time that would likely to be taken in dealing with the request, and that properly spent thus far in determining it. 27When the Agency first wrote to Ms Colefax on 9 February 2012 raising the issues of a unreasonable and substantial diversion of resources on 9 February 2012 the Information Access Officer wrote - You currently have 2 other access applications being processed by the Department, GIPA-12-023 and GIPA-12-024. These 2 applications are likely to take a substantial amount of work; however, they will likely incur no processing charges. Taking this new application into the equation, would however, tilt the processing time in excess of 40 hours, which is currently the threshold where the Department will refuse to deal with an application as it is an unreasonable diversion of its resources. The scope of this application is also rather ambiguous. In order to reduce the total amount of work needed and enable quicker decision making by the Department, it would be prudent to amend the scope of this application to a specific time frame of 3 or 6 months. The Department can refuse to deal with an access application under section 60(1)(a) of the GIPA Act, if dealing with the application would require an unreasonable and substantial diversion of resources. However, section 60(4) of the GIPA Act requires the Department to provide a reasonable opportunity for an applicant to amend the application. Accordingly, I hereby invite you to amend your application as follows: 1. All information (in the broadest sense) received by, generated by and/or dispatched by the Regional Director - Ms Simmons and/or her staff with regard to me during the period of [specify a 3-6 month time-frame]; and 2. Agree that processing of this application (GIPA-12-030) will not commence until the completion of GIPA-12-023 and GIPA-12-024. Accordingly I invite you to consider amending the current application, in accordance with the above. Please provide your response and amended application to the IA Unit on or before 2 March 2012. 28Ms Colefax refused to amend her application. In a letter dated 13 February 2012, she said that her requests each sought different information, with GIPA -12-030 (the present application) requiring "all information generated or dispatched by the Regional Director and/or her staff", whereas" GIPA -12-031 sought all documents received by the Director General (both in the same given period). 29Ms Colefax initially sought to review the Agency's decisions to refuse to deal with both those applications. The review of the access application relating to documents received by the Director General has since been withdrawn, following the provision of certain documents to her. 30The Agency however points to the fact that Ms Colefax made four separate request under the GIPA Act, within 7 days, for information relating to her employment with the Agency. It argues that they should "be taken as a whole single request" in accordance with the decision of the Victorian Court of Appeal in Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246. The Agency's then aggregates the time spent in dealing with Ms Colefax's three other applications, said to be 80 hours, and argues that dealing with the present application, when aggregated wit the others, would constitute an unreasonable and substantial diversion of the its resources. 31In order for Ms Colefax's four applications to be aggregated under s 60(3) those applications must be "related". In the context of s 60(3) this means more than that they each were made by Ms Colefax. It requires that their subject matter be related. The Agency says that this requirement is satisfied by all four applications going to the issue of Ms Colefax's employment with the Agency. 32In Secretary, Department of Treasury and Finance v Kelly a total 341 applications made under the Freedom of Information Act 1982 (Vic) made to five Departments, by the same applicant, seeking documents relating to the reticulation of gas in Victoria, were aggregated for the purpose of determining whether dealing with them would substantially and unreasonably divert the resources of the Agency contrary of s 25A of that Act. Importantly, in that case, in related proceedings in the Federal Court the company for which the Applicant acted had been granted limited discovery of documents only. In delivering the leading judgment of the Court of Appeal, Chernov JA found that - ... it is plain enough that s.25A was introduced to overcome the mischief that occurs when an agency's resources are substantially and unreasonably diverted from its core operations by voluminous requests for access to documents. 33He considered that the common aspects of the request justified their aggregation. This ensured that the intention underlying s 25A was not subverted by "breaking down...overall request to a multitude of virtually contemporaneous requests for single documents or parcels of them which would aggregate to the whole:" Re Shewcroft and Australian Broadcasting Corporation[1985] 2 AAR 496. At 498. 34In this case the Agency argues that Ms Colefax's' present application should be aggregated with the three other applications she filed, at approximately the same time, all of which concerned information relating to her employment with the Agency. 35Ms Colefax however argues that the subject matter of each access application she has made is different. In order to determine whether this is correct one must consider what each of those access applications sought: * GIPA -12-030 (the present application) requiring "all information generated or dispatched by the Regional Director and/or her staff in the period 1 January 2011 to 5 January 2012. * GIPA -12-031 sought all documents received by the Director General and/or her staff in the same period. * GIPA -12-023 sought information in relation to the a Notice of Settlement. It relates to a different period of time than GIPA -12-030 and GIPA -12-031. * GIPA -12-024. The Agency has provided no evidence relating to the nature of this application, and has not addressed that question in submission. Ms Colefax has submitted that it was a request for access to information relating to a complaint process initiated by her concerning a Health and Safety process undertaken in 2008 and 2009 by the Regional Director. I accept that was the case. 36Ms Colefax submits that these applications are unrelated and that the Agency had not previously argued that they were related or sought to aggregate them. She argues that because the Agency has now processed three of the applications, it is too late to now raise the issue. 37I am unable to agree with that last argument. In contrast with the provisions of s 25(1a) of the repealed Freedom of Information Act 1989, s 60(3) of the GIPA Act expressly provides that an agency is entitled to consider previous applications, " if the agency determines that the applications are related and are made by the same applicant." 38The real issue, in my opinion, is whether the four applications are related. There is no doubt that they are made by the same applicant. 39The Macquarie Dictionary Online defines related thus - adjective 1. associated; connected. 2. allied by nature, origin, kinship, marriage, etc. 3. .... 40Whether or not access applications made by the same applicant are related is a question of degree, with the assessment to be made in the light of the circumstances of each case, having regard to the purposes of s 60(1)(a) and (3). That purpose is to prevent a drain on departmental resources created by voluminous requests, and to prevent the splitting of access applications into two or more, whether at the same time or not, in an attempt to avoid them being categorised as voluminous. As Secretary, Department of Treasury and Finance v Kelly demonstrates the inquiry is concerned with common subject matter that connects the applications. The fact that they are made to separate Departments or Agencies will not necessarily prevent multiple inquiries relating to a common subject matter from being aggregated. 41When considering whether or not to aggregate access application made by the same applicant a decision maker should bear firmly in mind the objects of the GIPA Act. Section 4 provides - (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 public release of government information by agencies, and (b) 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. (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 reasonable cost, access to government information. 42Taking a wide and broad-brush approach when determining that applications are related for the purposes of s 60(3) has the potential to frustrate the objects of the Act, especially given that previous applications may now be considered. It is not at all unusual for a person seeking government information to make a series of access applications, using information obtained in earlier requests to focus and inform later requests. One can foresee it being a relatively simple matter to so classify those requests, so that they can be characterised as related to the same subject matter, thereby frustrating the objects of the Act. This is to be contrasted with the situation where a voluminous request is split into more than one request in an effort to avoid s 60(1)(a). 43The potential for differing characterisations of access requests and of the consequences of those differences, is well illustrated in this case. What Ms Colefax asserts are four separate and unrelated requests are all characterised by the Agency as relating to the one subject matter, namely her employment with the Agency. That characterisation, the Agency's argues, allows it to aggregate all four access applications for the purpose of s 60(3). 44In my opinion neither alternative advanced by the parties is correct. The agency's characterisation of how the four applications are related is too wide, given specific nature of the information sought in each application, the objects of the GIPA Act, and the purpose of s 60(1)(a). 45Rather I conclude, that GIPA -12-030 and GIPA -12-031 are related in that they each seek information from the Regional Director and the Director General and their staffs concerning communications relating to Ms Colefax generated in a specified period. While the relate to different offices within the Agency, they relate to the same subject matter (communications Ms Colefax in a given period). Splitting them into two applications is an artifice. 46I do not accept that GIPA -12-023, relating to information concerning the Notice of Settlement, at an entirely different period of time, is related to GIPA -12-030 and GIPA -12-031. While the Agency is correct in submitting that it relates to Ms Colefax's employment (as do the other applications) it has no connection with the subject of communications concerning Ms Colefax at a later period in time. Rather, it sought information about an entirely different matter, albeit relating to the same individuals and arising from the same relationship. 47With respect to GIPA -12-024 on the information provided I can discern no relation with GIPA -12-030 and GIPA -12-031. 48It follows that only GIPA -12-030 and GIPA -12-031 are related. The next issue is whether, considered together, dealing with them would involve an unreasonable and substantial diversion of the agency's resources. An unreasonable and substantial diversion of the agency's resources? 49In this regard the Agency has made submissions with respect to the time taken to process GIPA -12-031, which it will be remembered was processed after Ms Colefax had sought to review the decision to refuse to process it. The Agency asserts that processing "took 29 hours and involved a total of 464 pages, of which 252 were considered relevant and released to the applicant in full." The Agency has not filed any evidence supporting those assertions. 50The Agency submitted - 27. The initial decision on 6 March 2012 involved a total of 4.5 hours to process. That included considering the application, making a decision that it is an unreasonable diversion of resources and inviting the Applicant to amend the application to reduce the scope. 28. After amending the scope of the application at the second Planning Meeting on 26 June 2012, Ms Simmons, the Regional Director, was requested to search for and provide the relevant records. 29. Ms Simmons spent 35 hours gathering, printing, collating and cross referencing electronic and hard copy information received into Ms Simmons's office regarding the Applicant for the months of January to April 2011. 30. It did not include the gathering of information concerning the Applicant generated and/or dispatched by Ms Simmons's office for those months, nor did it include the whole period covered by the scope of the application. Records created during the period from May 2011 to February 2012 have not yet been searched for. 31. One bookshelf and 2 computers have been searched by 2 officers of grades 5/6 and 11/12 in Ms Simmons' regional office. Three email accounts were searched using the keywords 'Colefax' and 'Blunt' and the resultant emails were printed and compiled. A total of 3 very full folders were photocopied and integrated with the emails, when work was stopped due to it having taken 35 hours in total. 32. An estimate of 6 hours to search was initially predicted by the Regional Office staff; however, once the actual search was carried out, it became clear that 6 hours was a gross underestimation. 33. Based on the 35 hours taken to search for and produce records covering a period of 4 months, it is estimated that it would take a further 70 hours to gather, print and collate the remaining records for the entire 13 months period requested. 34. The 423 pages retrieved so far, do not include records generated and/or dispatched by Ms Simmons' office, and hence it is conservatively estimated that it would take an additional 30-50 hours or more of an officer's time to search for and produce those records. 35. Having regard to the above 2 paragraphs, it is therefore estimated that the total time required just to search for the relevant records and produce them to the decision-maker would be in the vicinity of 135-155 hours. 36. In the Applicant's 3 most recent applications, it took the decision maker the following times to review and make a decision about access: G IPA-12-023 163 pages 11.0 hours G IPA-12-024 232 pages 15.5 hours GIPA-12-031 252 pages 11.75 hours This equates to an average of 4 minutes per page in respect of the first 2 applications and 2.79 minutes for GIPA-12-031. 37. Utilising the averages in paragraph 36 above, it is estimated that to review and make a decision about access to the 423 pages which is only covering 1/3 of the time and 1/2 of the information requested, would take somewhere between 19 and 28 hours. 38. It would be reasonable to believe that a similar number of records would be located for the remainder of the requested period, but even a conservative estimate of 200 pages per each 4 month period, would still add 400 pages, bringing the total number of pages to 800+ pages. Again, this does not include records that were generated and/or dispatched by Ms Simmons and the officers within her immediate office. It is likely the volume would double or at least be in excess of 1000 pages in total. 39. This means it would take the decision maker a total of somewhere between 46.5 hours (based on the quickest average) to 66 hours (based on the higher average) to review and decide about access. 40. The total processing time for this application is therefore conservatively estimated at somewhere between 181.5 and 221 hours. This estimate of time is based on the work being carried out by officers of the Department who are familiar with the previous GIPA applications by the Applicant and the Applicant's history with the Department. Should an officer unfamiliar with the matter be expected to process the application, it is likely the time involved would increase dramatically. 51The Agency did not file any evidence supporting these submissions, a point that was taken by Ms Colefax who pointed to the absence of objective evidence as to the work already involved, and of that likely to be involved in completing the application process. 52Ms Colefax relied on an affidavit sworn by her agent and partner Mr Blunt. He deposed to the time he spent in undertaking an activity similar to processing an application under the GIPA Act. He says that using a TRIM record management system across two computers, which he asserts is similar to that maintained by the Agency, it - ... took a total of 2 hours 45 Minutes and 3 second to retrieve and print and or copy a collection of 302 emails with 103 attachments, 22 documents from the TRIM system and 3 "very full" lever arch files yielding a total of 2,057 pages. 53This is contrasted with the Agency's assertion of the time taken in paragraph 33 of its submission. As a result Ms Colefax questions the reliability of the Agency's assertions. In Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 the Appeal Panel cautioned that, "The Tribunal must have persuasive evidence as to what work would be involved in dealing with the application for access." 54The absence of evidentiary material from the agency and its reliance on assertions in submissions, which assertions are disputed by the Ms Colefax, has caused me to conclude that this is not an appropriate issue to determine on the papers under s 76 of the ADT Act. When, with the agreement of the parties, I initially determined to decide this review on the papers I warned them that if I came across factual conflicts that I thought required a hearing, I would fix one. 55I cannot fairly resolve the issue of whether or not the time involved in dealing with Ms Colefax's application would require an unreasonable and substantial diversion of the agency's resources without (a) hearing evidence from the Agency in support of those assertions; and (b) giving the Applicant an opportunity to test that evidence. 56As a consequence I have directed that this matter be listed for hearing on Wednesday 27 March 2013 at 10:00AM to hear evidence with respect to that issue. 57Any evidence the Agency wishes to rely on concerning the time involved in dealing with the application shall be filed and served by 15 March 2013. 58The hearing shall, subject to any order made to the contrary, be restricted to hearing evidence concerning the respondent's contention that the time involved in dealing with the application would require an unreasonable and substantial diversion of the agency's resources. ********** 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: 19 February 2013