Stanley v Roads and Maritime Services [2014] NSWCATAD 123

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stanley v Roads and Maritime Services [2014] NSWCATAD 123 Hearing dates: On the papers Decision date: 29 August 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Prof G D Walker, Senior Member Decision: Decision under review affirmed in part and set aside in part as ordered in paragraph 79 below. Catchwords: GOVERNMENT INFORMATION - PUBLIC ACCESS -reasonable search Legislation Cited: Administrative Decisions Review act 1997; Civil and Administrative Tribunal Act 1997--Government Information (Public Access) Act 2009 Cases Cited: Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52; Camilleri v Premier's Department [2006] NSWADT 137; Curtin v University of New South Wales (No 2) [2006] NSWADT 56; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179, (1979) 46 FLR 409; Miriani v Commissioner of Police, New South Wales Police Service [2005] NSWADT 187; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213; Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80; Shepherd v Department of Housing, Local Government and Planning [1994] QAR 464. Category: Principal judgment Parties: Philip Stanley (Applicant) Roads and Maritime Services (Respondent) Representation: P Stanley (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410068

reasons for decision 1The applicant Mr Philip Stanley applied to this tribunal on 12 February 2014 for review of a decision by Roads and Maritime Services (RMS) dated 30 January 2014 on the ground that "RMS has not fully complied with my GIPA requests of 26 Nov 2014 [sic] GIPA14G1172 and 27 Nov GIPA G 141185 - notice of 30/1/14 and emails attached." 2The respondent's decision in question was the decision to release to the applicant a CD containing 94 pages of documents, which the respondent considered to be a release of the documents requested by the applicant in full. The review application appears to be based on s 80(e) of the GIPA Act, which declares that a decision "that government information is not held by the agency" is a decision to which the Act applies and is a proper subject for a review application. The respondent accepts that, as the applicant contends that RMS holds further information covered by his application, in addition to that which was released to him, a determination under s 80(e) was by implication made. 3An attachment to the application explains that Mr Stanley's reason for applying for the information is the RMS proposal to narrow the westbound lanes of Fullers Road, Chatswood, rather than instal a fixed speed camera. He believes that the narrowing proposal greatly threatens the safety of his daughter and her children when she reverses out of her Fullers Road driveway into a busy traffic flow. He also claims to represent the interests of 13 other affected residents. 4RMS officers have made decisions in relation to four previous applications by Mr Stanley between March and July 2013. The applicant claims that RMS has been tardy with its responses, has not supplied all of the information requested and has on several occasions refused to supply specific items. The attachment to his application further states that the purpose of the application is to obtain information that has been "deliberately withheld from" him by RMS in relation to his two GIPA requests 14G1172 and 14G1185 of 26 and 27 November 2014 (scil. 2013). He is particularly interested in obtaining information concerning a meeting held on 1 November 2014 (scil. 2013). 5The 26 November 2013 application seeks the following information: All correspondence, emails, minutes of meetings and any other written and/or verbal communications made between the Traffic Branch and the Road Safety Centre concerning the following: 1. Fullers Road Chatswood RMS proposal for narrowing the westwards travelling side to one lane. 2. The assessment of the possibility of speed camera(s) as a means of reducing speeding and accidents, together with the analysis of the priority and any other relevant matters considered. 3. Any other matters raised and/ or considered in not approving of a high priority for speed camera(s) on Fullers Road with or in lieu of RMS Road narrowing proposal. 6The 27 November 2013 application sought the following information: All correspondence, emails, minutes of meetings and any other communications written and/ or verbal, and quantitative data relevant to the decision to not further consider a Speed camera for Fullers Road that has been made between the Traffic Branch and the Road Safety Centre concerning the following matters, over the period 1/1/2012 and 22/11/2013: 1. In connection with the Fullers Road Chatswood RMS proposal for narrowing the westwards travelling side to one lane and the quantitative data used in this decision, including all traffic data used in the Traffic Modelling, the software used, the side streets entries and exits considered, as well as the major flow through Fullers Road, the working papers and the final report, together with the name of the person carrying out the Traffic Modelling and his/ her qualifications - as mentioned by J Begley RMS at a meeting of 21/11/13 with P Stanley, and believed to be carried out in the period March - November 2013, 2. The qualitative and quantitative data used in the assessment of the exclusion of speed camera(s) as a means of reducing speed and accidents, together with the written analysis of the decision, and any other relevant matters considered; 3. The specific accident data are used in the decision that road narrowing would be necessary to control speeding on the westwards travelling side of Fullers Road, including date, time, nearest side street, severity of accident, number of cars involved and car(s) at fault and on which side of Fullers Road that the accident originated. In particular, details, as above, of the six head-on accidents which RMS M/S Johnson stated had occurred and, reference [sic] at the meeting of 21/11/13 with her; 4. Any other matters relevant and/or raised and/or considered in NOT approving of a speed camera(s) on Fullers Road, with or in lieu of the RMS road narrowing proposal. 7The issue. The only issue in this application is whether the respondent has discharged its obligation to "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" within the meaning of s 53 of the GIPA Act. 8The purposes and objectives of the GIPA Act are set out in s 3: 3 Object of Act (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. 9"Government information" is defined broadly in s 4 as "information contained in a record held by an agency". "Agency" is also defined in that section as including "a public authority", a phrase which in turn is defined in cl 2 of schedule 4. RMS is a corporation constituted under s 46 of the Transport Administration Act 1998 and the respondent does not dispute that it is therefore a public authority within cl 2 and an "agency" for the purposes of s 4. 10The GIPA 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, subject to limited exceptions, a principle that there is a public interest in favour of disclosure: s 12(1). Section 12(2) stipulates that the public interest considerations in favour of disclosure are not limited. 12An agency's obligation to search for information that is the subject of a request is set out in s 53: 53 Searches for information held by agency (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. 13Persons aggrieved by a reviewable decision (including a decision under s 80(e) as in this case) may under s 100 seek a review by this tribunal. Section 100, when read with s 9 of the Administrative Decisions Review Act 1997 (ADR Act), confers jurisdiction on the tribunal to review such decisions under the Act as are reviewable. 14The tribunal's function on review under s 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law (meaning legislation or common law). It has long been established that in considering an application for review the tribunal is not limited to having 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. The tribunal is therefore able to take account of material that is now available but was not available at the time the decision under review was made. 15When any reviewable decision under the GIPA Act is being reviewed, the burden of justifying the decision is placed by s 105 on the agency in question. In this case the applicant has raised the issue of the sufficiency of the search undertaken by the respondent. It is for the respondent to show what steps were taken in the search for information falling within the scope of the access application and to satisfy the tribunal that those steps were reasonable and sufficient. 16The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning (1994) QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (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. 17That decision has been affirmed in a number of later decisions of the tribunal. See, for example, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, which reviews a number of the authorities on the point. 18The tribunal must form a view as to whether there are reasonable grounds for believing that further information of the kind requested exists that has not so far been supplied and, if so, whether in all the circumstances the respondent has made reasonable search efforts to locate it. 19Under s 112 of the GIPA Act, the tribunal may, if it is of the opinion that an agency officer has failed to exercise in good faith a function under the Act, bring the matter to the attention of the appropriate minister. The applicant seeks to invoke that provision.