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. The Agency's evidence 6The Agency statements from the following persons; * Marianne Moore, Principal information Access Officer in the Information Access Unit of the Agency. * Jane Simmons, the Acting Executive Director, Learning and Leadership, Public Schools NSW. * Abdalla Essa, Leader, Information Management and Records at the Agency. 7In her statement Ms Moore outlined the time taken by the Agency to process GIPA 12-31. This totalled 28.25 hours comprised of 14.25 hours search for records, 10 reviewing records, 1.75 hours making and documenting the decision, and 2.25 hours undertaking associated administrative tasks. 8Among the inquiries she had made with respect to GIPA 12-30 was a request to the regional director Ms Simmons, then Regional Director, Northern Sydney, to locate the documents requested in GIPA 12-30. Ms Simmons had advised her in a memo dated 17 July 2012 that to find, print, collate and cross reference the information, both electronic and hard copy, relating to documents received for the months January to April 2011 had taken one person 5 working day (7 hours each) to complete. This had yielded 435 pages of information. Ms Simmons estimated it would take 30 plus days to fully locate documents covering to whole of the period in the request. 9Ms Moore said that it had taken her 9 hours to consider the 435 pages produced by Ms Simmons office for release under the GIPA Act, and that she estimated it would take her a further two hours to write a decision in relation to them. She made the point that she was familiar with Ms Colefax's previous requests and the nature of the correspondence relating to her. She considered this enabled her to make a speedy determination. 10In her statement Ms Simmons verified the content of her memorandum to Ms Moore dated 17 July 2012. 11Mr Essa gave oral evidence in addition to his statement concerning the Department's record keeping systems. His evidence was that the Agency's records are maintained in both the digital world and the paper world. The keeping of records in digital form is being introduced, but is not yet implemented throughout the Agency. 12In the northern region, where the records Ms Colefax is seeking are kept, there has been an electronic document and record management system (EDRMS) being implemented since 2009. Presently, not everything is stored electronically and there are still paper-based records. The chances of success in finding digitally stored records are dependant on documents being saved in accordance with a titling protocol, and with how a search is framed. If records were not saved in accordance with naming and descriptive protocols in the Agency's information policy, they cannot be easily mapped. In that case a lengthy content search is necessary. In the case of the search for Ms Colefax's records he considered the search criteria appropriate. Mr Essa said that an electronic search of the EDRMS alone was not sufficient. While some electronic records might be sufficient, others would require the searcher to physically locate the document in the paper-based system. 13Additionally, Mr Essa made the point that the emails of individual officers are not stored on the EDRMS as a matter of course. As a consequence it would be necessary to conduct separate searches of the email systems of likely officers. 14Mr Essa also said that comparisons with information searches using the same EDRMS as the Agency (TRIM) in a smaller agency (Marrickville City Council), such as that relied on by Ms Colefax, was not valid given the difference in size activity and performance of that agency with the Department of Education and Communities. Ms Colefax's evidence 15Mr Blunt, Ms Colefax's agent, filed an affidavit in which 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 at Marrickville City Council, 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.... 16He said it took him 9 hours to review those documents following the steps he set out at point 272 to 277 of attachment A to his statement. An examination of those tasks shows that in doing so he undertook tasks concerned with identifying whether the documents related to legal issues or contained the "private information' of individuals. 17Mr Blunt also filed an affidavit sworn 26 March 2013 in which he deposed to an examination he had undertaken of the 252 pages released in response to GIPA 12- 31. On his figures processing those documents took 8.5 hours. It needs to be pointed out that this analysis was of the 252 pages disclosed, and assumed a total of two hours for considering the access application and retrieving responsive records. 18Mr Blunt had also prepared an analysis of what he submitted would be the time reasonably required to process GIPA 12-30. This totalled 13.5 hours consisting of: * Initial review and notifications - 1 hour * Retrieving records -estimated at 1200 pages - 2 hours * Review records - 6.5 hours. * Make decision - 2 hours * Other administrative tasks - 2 hours. 19Attached to Ms Colefax's submission was a table setting out correspondence sent on her behalf in 2011, which shows 44 items of correspondence that Ms Colefax accepts would have been referred to the Regional Director, including some originally directed to the Regional Director. Consideration 20As was the situation under the relevant provision in the Freedom of Information Act 1989, s 60(1)(a) of the GIPA Act provides that a decision maker must be satisfied that an access application would require both an unreasonable and a substantial diversion of an agency resources, before refusing to deal with an application. In making that decision 60(2) says that the Agency is not required to take into account any extension of time for processing the request beyond that stipulated in s 57. 21A decision with respect to whether an access application would require both an unreasonable and a substantial diversion of an agency's resources requires a decision maker to exercise discretion in reaching a conclusion. In this regard that the GIPA Act contains a general presumption in favour of disclosure of government information (s 5) and gives members of the public "an enforceable right to access government information." Importantly s 4(2) instructs - (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. That instruction is relevant to the exercise of the discretion in determining whether or not an application will constitute an unreasonable and substantial diversion of resources. The Freedom of Information Act 1989 did not contain a similar instruction. 22This is an important distinction between the former and the current access to information regimes. It is a distinction which means that decision makers should be cautious when considering the applicability of decisions relating to the Freedom of Information regime, in the context of the GIPA Act. 23For example In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 the President reviewed the authorities relating to a decision as to whether or not a request under the Freedom of Information Act 1989 was likely to constitute an unreasonable and substantial diversion of resources. He did so in the context of an application for access to all documents held by the Premier's Department and the Premier in relation to the preparation and finalization of the lease for the assets and business interests of the Sydney Market Authority, and to the sale of the assets of Sydney Markets. 24The President nominated nine, non-exclusive, factors which needed to be balanced in making such a determination in that case. They were, at [63]: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; ... (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort; ... (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOl applications ... (d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost ... (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application ... (f) the time lines binding on the agency ... (g) whether beyond 40 hours' processing time, and to what degree [the Tribunal had before it evidence from the Agency's annual report that a processing time that goes well beyond 40 hours may properly raise concerns] ... (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made ... (h) degree of certainty that can be attached to estimate 25In my opinion most of those considerations are equally applicable to a consideration of whether a request under the GIPA Act constitutes an unreasonable and substantial diversion of an agency's resources. A factor that concerns me is that in (g), being the 40 hours processing time. I discuss this in more detail below. 26In addition to these factors, however, an access applicant under the GIPA Act has statutory right to access government information, and the Act instructs that discretions under it be exercised so as to enhance its objects. These legislative provisions apply with respect to applications under the GIPA Act and may result in the differing weight and importance being accorded to the Cianfrano factors. 27Further, the circumstances of this case highlight another factor of relevance to the question of whether the request requires an unreasonable and substantial diversion of resources. This is that the information sought by Ms Colefax relates to herself, and is substantially likely to be her own personal information within the meaning of definition of that term in Clause 5 of Schedule 4 of the GIPA Act. The fact that an access applicant is seeking his or her own personal information, is a factor relevant to the determination. 28With respect to the 40 hour consideration referred to by the President In Cianfrano, the Tribunal in that case accepted evidence that a request taking more than 40 hours to process would be a cause for concern to those responsible for processing it. Considerable caution needs to exercised with respect to that finding. It was made in the context of the facts and evidence in that case, and should not be taken as establishing something in the nature of a 40-hour rule. 29Indeed a review of other cases decided under the Freedom of Information Act 1989 or similar regimes reveals a broad diversity of cases, most of which required a much greater burden on agency resources, that the 40 hours in Cianfrano. Examples of this were highlighted by Hennessy DP in Chapman v NSW Police at [43-45] - 43 ... in Secretary, Department of Treasury and Finance v Kelly (2001) 18 VAR 427, Ormiston JA noted at [6] that the equivalent provision in Victoria 'should only be applied to a clear case of substantial and unreasonable diversion of a department or other agency'. 44 Circumstances in which the VCAT has held that a refusal under s 25A(1) is justified include: a request for 22,000 documents which would require the services of the equivalent of 1.75 experienced FOI officers a period of 15-16 months to complete (Re A and Department of Human Services (unreported, VCAT, Davis PM, 4 November 1998)); a request for an estimated 6,700 pages of documents that would take the only officer available between 15 and 30 weeks to process (Re Chapman and Victoria Parks (unreported, VCAT, Ball SM, 6 December 1999)); and a request that would require a manual search of at least 16,000 boxes that would take years for a team of people to carry out (Re Coulston and Office of Public Prosecutions [2001] VCAT 10). 45 Section 24(1) of the Freedom of Information Act 1982 (Cth) is in identical terms to s 25(1) of the Victorian Act. Considering this provision in Re SRB and SRC (1994) 33 ALD 171, the Administrative Appeals Tribunal affirmed a decision by an agency to refuse access on the basis that it would substantially and unreasonably divert the resources of the agency away from its other operations. The Agency estimated that the application would require scheduling of 600 documents containing 22,500 pages. In addition to consulting with third parties 30A more recent NSW case was one in which identifying and printing the information would take the only officer with access to all the documents at least a month, before any consideration was made as which documents access should be given to: Oliveri v NSW Police [2010] NSWADT 299. 31In the present case Ms Colefax' access requests are not global, but seek access to correspondence relating to her held by particular offices within the Agency. As modified, it is confined to a thirteen-month period. Because the individual concerned is Ms Colefax, the request seeks access to her personal information. Beyond the fact that the information is Ms Colefax's personal information, there is no evidence as to the obvious importance of the documents sought generally, or to her. Importantly, she has narrowed the scope of her request, but not to an extent that the Agency considers it manageable. 32The evidence establishes that processing GIPA 12-31 took 28.25 hours to discover and fully process all the information. Mr Essa's evidence established that, unlike the situation in the northern region, the EDRMS Is fully functional in the Director-Generals' office. As a consequence one would expect the process of finding and collating relevant information in the Director-Generals office to be quicker and simpler than that in the northern region. 33I accept Mr Essa's evidence that due to the size and nature of the Agency's network, the patchy implementation of EDRMS throughout the Agency, and the variety of record keeping systems operating in the northern region, that one cannot compare the Agency's records management system with that at a smaller agency like Marrickville Council. As a consequence, Mr Blunt's evidence of the time it took him to process comparative searches in his place of work is not a fair comparison. 34With respect to GIPA 12-30 Ms Simmons advised her in a memo dated 17 July 2012 that to find, print, collate and cross reference the information (435 pages), both electronic and hard copy, relating to documents received for the months January to April 2011 had taken one person 25 hours to complete could be completed. Whether the same time would be taken in finding documents dispatched in the period is unclear, but the Agency has proceeded on the assumption that it would take the same time. In making that assumption the Agency has not done a search of the electronic system to see what relevant documents it contains. 35Assuming similar times would be required to process the information for the balance of the requested period, then a total of approximately 285 hours would be spent locating and collating all the records. This conclusion is disputed by Ms Colefax who puts a figure of 13.5 hours. The Agency's conclusion is dependent on the untested assumption that similar times will be required in the search for the remainder of the information requested, as was spent in locating documents received for the months January to April 2011. Consideration of those materials for the purpose of release under the GIPA Act would take a further significant period time. 36To that one must add 28.25 hours the Agency says was spent processing GIPA 12-31. This too, is disputed by Ms Colefax who puts a figure of 8.5 hours. 37If one accepts the assumptions inherent in the Agency' submissions, this means that the workload in processing Ms Colefax access applications would conservatively be 340 hours. If those unverified assumptions are wrong, then the processing time will be less, arguably by as much as half. 38In submissions Ms Colefax drew attention to the Agency's failure to identify the likely volume of information within the scope of the access request, as had occurred in cases such as Cianfrano and Chad v Railcorp (2009) NSWADT 44. She also noted that the Agency has not specified how it reached the assumptions it relies on. 39With respect to the time taken to process GIPA 12-31, I think that the Agency's evidence as to the time it actually took to process that claim (28.25 hours) is the best evidence relating to that issue, and is to be preferred over that of Mr Blunt. 40With respect to the time likely to be taken to process GIPA 12-30, I agree with Ms Colefax's criticism that some of the assumptions relied on by the Agency are not supported by evidence. On the other hand, the fact that 35 hours was spent retrieving documents received for the months January to April 2011, leads me to reject Mr Blunt's estimate of 13.5 hours as the total time necessary to process GIPA 12-30. 41I am satisfied that substantially more than 35 hours, by a factor of three of more, would be required to fully to process GIPA 12-30. Combined with the time spent processing GIPA 12-30, I am satisfied that the time likely to be taken in processing both applications is a minimum of 140 hours. I also accept that a large amount of that time is required as a consequence of the fact that the Agency's northern region has not fully implemented the EDRMS. 42Given that the information Ms Colefax seeks is her personal information, whether or not the 135 hours plus required to meet her access request requires an unreasonable and substantial diversion of the Agency's resources within the meaning of s 60 is problematical. If Ms Colefax had applied for access to this personal information under s 14 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act), then the Agency would not be able to refuse access on the basis that the request would require an unreasonable and substantial diversion of the agency's resources. On the other hand the Agency would have longer to process the request, and may be able to exclude some of the information to which the GIPA Act applies due to the differences in the definition of personal information between the two Acts. 43While the PPIP Act does not affect the operation of the GIPA Act, the fact agencies are unable to refuse to deal with requests for personal information under the PPIP Act on the basis of an unreasonable and substantial diversion of resources, points to the importance of the distinction between applications seeking access to government information that includes their personal information, and those seeking access to other government information. That distinction in my view, is a relevant factor when deciding whether or not an access request is unreasonable. 44The Agency is a large department, which like the rest of government is suffering constraints of budget and personnel. The call on its resources to process the requests will require the devotion of a significant number of employee hours, and will place a substantial call on its available resources. The minimum time likely to be taken by one officer in processing GIPA 12-30 (20 seven hour days) equals the time the GIPA Act allows for the processing of the application. 45When one adds the time already spent processing GIPA 12-31, I am satisfied that the burden the requests have and will place on the Agency's resources are both unreasonable and substantial. Conclusion 46In the light of the above the decision of the Agency is affirmed. ********** 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: 07 June 2013