Wollondilly Residents & Ratepayers Association Inc v Wollondilly Shire Council [2015] NSWCATAD 170

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wollondilly Residents & Ratepayers Association Inc v Wollondilly Shire Council [2015] NSWCATAD 170 Hearing dates: 24 July 2015 Decision date: 18 August 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision is affirmed Catchwords: access to government information - access application - decision to refuse to deal with application - the agency had already decided a previous application for the information concerned Legislation Cited: Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Category: Principal judgment Parties: Wollondilly Residents & Ratepayers Association Inc (Applicant) Wollondilly Shire Council (Council) Representation: Solicitors: L Styles (Agent for Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 1410623

REASONS FOR DECISION 1. The Applicant, Wollondilly Residents and Ratepayers Association Inc ("the WRRA") has applied to the Tribunal for review of a determination by a delegate of the Wollondilly Shire Council ("the Council") under the Government Information (Public Access) Act 2009 ("the GIPA Act"). 2. In its Access Application to the Council , the WRRA sought access to the following documents: "1) An itemised list of correspondence from WRRA totalling 78 items and how costs of $1013.55 was assessed by Council as referenced in the G07 Report 2) An itemised list of the 44 Community Forum questions and how the costs of $581.90 was assessed by Council as referenced in the G07 Report 3) An itemised list of responses to the 44 questions raised by WRRA at Community Forums in the public interest 4) An itemised list of the nine informal GIPA requests for information and how the costs of $571.54 was assessed by Council as outlined in the G07 Report 5) An itemised list of formal GIPA requests made by WRRA for information and how the costs of $851.00 was assessed by Council as referenced in the G07 Report 6) An itemised list of five Code of Conduct complaints made by WRRA to Council and a copy of the invoices totalling $9,223.00 as reported 7) An itemised list of the 176 issues as reported by Council in the Report 8) An itemised list of Council's response to the 176 issues, if any 9) An itemised list of correspondence from WRRA from January 2014 to the date of the Report being published on 7 March, received by Council "at the rate of one (1) item per day. ..." as referenced in the Report 10) An itemised breakdown of Council's claim that 98.5 hours of staff time was spent "researching and processing requests" from WRRA as referenced in the G07 Report 11) An itemised list of the "total costs to the Organisation based upon previous litigation is in the vicinity of $100,000" as stated in the G07 Report 12)Access to all files, reports and correspondence in relation to "WSC v Styles" identified in the Schedule of Documents attached to Council's Notice of Decision dated 15 April 2014 13) Access to any Council report, record or Council resolution where it was resolved by Council to obtain legal advice in relation to any actions against WRRA or in relation to "WSC v Styles" as identified in 12 above." 1. The Council determined the Access Application by refusing to deal with it under section 60(1)(a) of the GIPA Act. Section 60 of the GIPA Act provides: 60 Decision to refuse to deal with application (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 , ... (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. 1. At a Planning Meeting on 13 January 2015 the WRRA recast category 12 of the Access Application in the following terms: All documents showing legal fees spent by Council opposing WRRA in the 12 months prior to the decision of Council on 17 March 2014. 1. Also at that planning meeting I directed the Council to respond to the WRRA by 30 January 2015 as to whether it held any information falling within the scope of category 12 of the Access Application as recast. I also made a self-executing order that if the Council found that it did not hold any information within the scope of category 12, the matter was remitted to Council for re-determination by 20 February 2015. 2. On 30 January 2015, the Council informed the Applicant that it did not hold any information falling within the scope of category 12. 3. The Council determined the balance of the Application on 13 February 2015. In her determination, the Council's Access to Information Officer, Ms Toni Spence, stated: I have decided to refuse to deal with your access application under s. 60(1)(b) of the GIPA Act. 1. In accordance with section 60(1)(b) of the GIPA Act, the Council refused to deal with the Application on the basis that it had already decided a previous application for the information concerned (or substantially the same information) and there were no reasonable grounds for believing that the agency would make a different decision on the application. 2. Ms Spence also noted: * Your application makes reference to "itemised lists" - see items 1-9 and 11 of the access application. Item 10 refers to an "itemised breakdown". * The GIPA Act defines government information as "information contained in a record held by an agency". Council does not hold records containing an itemised list of the information. * To provide the information you have requested new records would need to be created. Section 75(2) of the GIPA Act does not require Council to, amongst other things, make new records or create new information. * Council does not intend to create the itemised lists of information that you have requested. * The information that would be contained in the itemised list has previously been requested by the applicant in categories 3 - 5 of the application dated 10 March 2014 (TRIM 7977). * This application was determined by Council on 15 April 2014 where it was decided to release the information (with some redactions) on the condition WRRA pay processing charges. * Council has already decided a previous application for the information concerned (or information that is substantially the same) made by the applicant and there are no reasonable grounds for believing that Council would make a different decision on the application [s60(1)(b)]. 1. The basis for this determination was an earlier access application, dated 10 March 2014, brought by the WRRA. The Council contends that information that would be contained in the itemised list sought in the present access application was requested in categories 3 - 5 of the 10 March 2014 access application. 2. Categories 3 - 5 of the 10 March 2014 access application requested: By formal GIPA application, we request access to all files, file notes, memos, records and statistics identified in the report to Council (G07 17/3/14 p202- p2205), in response to correspondence from WRRA, responses to community forum questions, details of the handling all informal requests for information, and details of all formal requests, together with details of Council's response to the 176 issues allegedly raised by our Association. We further request access to the estimated costs by staff allegedly purporting to be $12,258.99 to process requests from WRRA together with details of Council's responses to those requests and how the responses were dealt with. We also request access to invoices in payment for Code of Conduct determinations of complaints alleging to cost $9,223.00 (c/f G07 p203). We also request access to all information referring to Council's statement that "the total costs to the Organisation based upon previous litigation is in the vicinity of $100,000". We seek details of the specific costs disclosed and details of the litigation referred to allegedly to be in the vicinity of $100,000. 1. The Council determined the 10 March 2014 access application on 15 April 2014 and it decided to release the information (with some redactions) on the condition the WRRA pay processing charges. 2. The WRRA applied to the Tribunal for external review of the 15 April 2014 determination. The matter (Application 1410225) came before me for hearing on 15 September 2014. However, on the day of the hearing, the Applicant withdrew its application. The Tribunal's records shows that Application 1410225 was withdrawn and dismissed. 3. Ms Styles, agent for the WRRA, wrote to the Tribunal by letter dated 16 September 2014 and requested that the matter be relisted. She wrote: At the hearing on 15 September 2014 before Senior Member Mr Montgomery, two matters were determined and the Applicant withdrew File 1410225 to revise the scope without realising that the costs imposed by the Respondent was for information not requested by the Applicant. The parties are to meet again on 7 October 2014. I request that File 1410225 be relisted for the meeting on 7 October. 1. The Council did not consent to Application 1410225 being relisted. 2. By letter dated 22 September 2014 the Tribunal's Divisional Registrar wrote to the WRRA stating: I refer to a letter from the Applicant of 16 September 2014 in relation to the above matter. In the course of the hearing on the 15 September 2014, the Applicant withdrew her application. There is no provision to re-open a matter once it has been withdrawn by the Applicant. 1. The Council submits that the effect of the Tribunal's decision was that the Council's 15 April 2014 decision remained a valid decision and the WRRA was entitled to access the information upon payment of the processing charges. The WRRA has not done so, and now seeks access to substantially the same information. 2. The Council also contends that it cannot be compelled to create a new record i.e. to create the 'itemised lists' requested by the WRRA. It submits that the clear scheme of the GIPA Act is that whilst it is open to an agency to provide access to government information by making and providing access to a new record, an agency is under no obligation to do so. Further, it says that because an agency is under no obligation to make a new record of information in response to an access application, the Tribunal has no power to order Council to do so. 3. The Council also submits that insofar as the Access Application is interpreted as requesting the records containing the information from which such lists would be compiled, it is readily apparent from a comparison of the Access Application and the 10 March 2014 access application that the WRRA has requested substantially the same information in each case. 4. The Council relies on the statement of Mr John Sproule, its Manager, Governance. Mr Sproule's evidence is that the Council does not have an itemised list (or breakdown) of the matters referred to in categories 1-11 of the Access Application. It only has records containing the information from which the figures in the G07 report were compiled. 5. For these reasons, the Council submits that the Tribunal should affirm the decision to refuse to deal with the present Application under section 60(1)(b) of the GIPA Act. 6. The WRRA does not dispute that the items sought in the present application is an expansion of the request made in categories 3 - 5 of the 10 March 2014 access application. However, Ms Styles submitted that the Tribunal has not dealt with the issue because Application 1410225 was withdrawn and dismissed. 7. Ms Styles also submitted that the Council had already prepared the itemised lists in order to prepare the content for inclusion in the G07 Report for the Council meeting on 17 March 2014. She submitted that the Respondent had to attest to the accuracy of the G07 Report and that this could not have been done without itemised particulars to support its statistics.