Colefax v Department of Education and Communities No 2 [2013] NSWADT 130

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Colefax v Department of Education and Communities No 2 [2013] NSWADT 130 Hearing dates: On the papers Decision date: 07 June 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The decision of the Agency is affirmed Catchwords: Government information public access - refusal to deal with access application - unreasonable and substantial diversion of agency resources. Legislation Cited: Freedom of Information Act 1989 Government Information (Public Access) Act 1999 Privacy and Personal Information Protection Act 1998 Cases Cited: Chapman v NSW Police [2004] NSWADT 3 Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 Chad v Railcorp (2009) NSWADT 44 Cianfrano v Director General, Premier's Department [2006] NSWADT 137 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Oliveri v NSW Police [2010] NSWADT 299 Category: Principal judgment Parties: Margaritte Colefax (Applicant) Department of Education and Communities (Respondent) Representation: W Blunt (Applicant,agent) M Moore, Department of Education and Communities (Respondent) File Number(s): 123070

reasons for decision

Background 1This is the second decision in this matter concerning an application for access to government information made by Ms Colefax to the Department of Education and Training (the Agency) under the Government Information (Public Access) Act 1999 (the GIPA Act). That application is referred to by the Agency as "GIPA 12-30". 2In the first decision Colefax v Department of Education and Communities (No1) [2013] NSWADT 42 I determined that the agency was entitled to treat two applications Ms Colefax had made under GIPA (GIPA 12-30 and another related application GIPA 12-31) as one for the purpose of determining whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources. GIPA 12-30 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. GIPA 12-31 sought access to the documents received by the Director General. 3Section 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. 4When the Agency initially refused to deal with the access request, it invited Ms Colefax to modify the request by confining it to a three to six month time frame. In the course of proceeding before the Tribunal Ms Colefax did confine her request to the period 1 January 2011 to 5 February 2012. The Tribunal remitted that amended request for reconsideration, but, having made some searches, the Agency confirmed its original determination. The Agency noted 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. 5I considered that I could not 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 on the papers without (a) hearing evidence from the Agency in support of those assertions; and (b) giving the Applicant an opportunity to test that evidence. As result I made direction for the parties to put on evidence going to those issues, and heard that evidence in a hearing on 27 March 2013.