Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Watson v NSW Trustee and Guardian (No.2) [2016] NSWCATAD 19 Hearing dates: 21 September 2015 Date of orders: 29 January 2016 Decision date: 29 January 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery - Senior Member Decision: The decision under review is affirmed Catchwords: Administrative review - government information - public access - adequacy of search - 'excluded information' Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 Category: Principal judgment Parties: Matthew Watson (Applicant) NSW Trustee and Guardian (Respondent) Representation: Solicitors: M Watson (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410636 REASONS FOR DECISION 1. Mr Watson has applied to the Tribunal for review of a determination by the Respondent, the NSW Trustee and Guardian ("TAG") in regard to his application for access to government information under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The information sought concerns complaints made by Mr Watson to the TAG, the Office of the Legal Services Commissioner ("OLSC") and the office of the Ombudsman regarding the TAG's conduct in administering a deceased estate. 2. The background is discussed in my decision in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 ("the earlier decision"). I also discussed the applicable legislation and relevant case law and I will not repeat that discussion here. 3. . In the earlier decision I remitted the matter for redetermination by the TAG. I made some recommendations in regard to the approach to be taken in the redetermination with the expectation that additional material that fell within the scope of Mr Watson's access application would be released. 4. The TAG conducted additional searches for information, which identified further emails as falling within the scope of the access application. This was additional information to that already identified and provided to the Tribunal. 5. Ms Jill Day, the TAG's Principal Legal Officer, completed the redetermination on 28 July 2014. She summarised her decision as follows: 1. The access application is invalid to the extent that it relates to information captured by Schedule 2(4) of the GIPA Act. 2. However, NSWTG consents to the informal release of some information captured by Schedule 2(4) ... 3. NSWTG does not consent to the release of the balance of information captured by Schedule 2(4). This information has been redacted in the copies provided. 4. The decision not to informally provide the redacted Schedule 2(4) information is discretionary and unreviewable. 5. Insofar as the application is valid, it is necessary to apply the public interest test in order to determine whether information that is captured by the application should be released to you. 6. In applying the public interest test to the documents that are the subject of a valid application (i.e. the documents that fall outside Schedule 2(4)): a. There is an overriding public interest against disclosure in respect of material which is (a) material of OLSC and in respect of which (b) it has not consented to release, by virtue of Schedule 1(6); and b. In respect of the balance of material, NSWTG is satisfied that there is a public interest in favour of disclosure. 1. Mr Watson is not satisfied with the outcome of the redetermination and at a directions hearing in the matter on 4 August 2015 he advised the Tribunal that he wishes to proceed with his application for review. Pursuant to section 65(3)(b)(i) of the Administrative Decisions Review Act 1997 ("the ADR Act") this matter now proceeds as a review of the redetermination decision. 2. Each of the parties has provided written submissions setting out the arguments it seeks to raise in the resumed matter. 3. Mr Watson has raised the issue of whether or not the TAG performed reasonable searches in response to his access application. He contends that the TAG has not conducted adequate searches for information requested. He is of the view that relevant information from the TAG that should have been captured under his GIPA access application was not and has not been captured. 4. Mr Watson referred to the fact that further searches by the TAG located additional information and raised the question as to what other information is missing, or has been withheld. He submitted that the additional information should have been captured under his initial access application. Mr Watson referred to the TAG's acknowledgment that some copies of email chains included in the confidential bundle provided to the Tribunal omitted earlier emails in the particular chain. It is my understanding that this omission has now been rectified. 5. Mr Watson also seeks access to the information that has been redacted in the material provided to him. He submits that the following foundations of the GIPA Act are relevant in this instance: * There is a general public interest in favour of the disclosure of government information. * Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. * Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. * Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. * The information is personal information of the person to whom it is to be disclosed. * Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. * There is a public interest consideration in favour of disclosure going to the accountability of TAG to ensure a robust and transparent complaint handling process. 1. c highly critical of the TAG's internal complaint handling processes and the staff involved in those processes. He also took issue with the content of some of the material that was provided to him. I note his comments in regard to his expectation of a written apology from the TAG in relation to comments that were made in the material provided to him. It is readily apparent from both the content of that material and correspondence between the parties and the Tribunal and correspondence between the Mr Watson and various officers of the TAG that there is considerable animosity between them. 2. While this situation is to be regretted, many of the issues raised by Mr Watson in regard to manner in which the TAG performs its functions and handles external complaints fall outside the Tribunal's jurisdiction under the GIPA Act. Were The Searches Reasonable? 1. The TAG's obligation to search for information in response to an access application is set out in section 53 of the GIPA Act. "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. " 1. The issue of what constitutes an adequate search has been considered in numerous decisions under both the GIPA Act and the repealed Freedom of Information Act 1989. 2. In Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, the Information Commissioner of Queensland identified a two limb approach to the question of what constitutes an adequate search (at [19]): 1. whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so, 2. whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. 1. The decision in Shepherd has been affirmed in subsequent decisions of the Tribunal on a number of occasions. In Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5, Judicial Member Isenberg discussed the approach to be taken in determining whether the search undertaken by an agency is sufficient. In doing so she referred to a number of authorities that considered that issue for the purposes of the now repealed Freedom Of Information Act 1989 ("the FOI Act"). She stated: 10 In deciding whether a sufficient search has been carried out, the ultimate issue for the Tribunal is whether the agency's conclusion, that it does not hold the documents sought by the applicant, is sound. 11 What constitutes a sufficient search has been considered by the Tribunal in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the President said that the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, should be adopted in addressing sufficiency of search issues. In Shepherd the Information Commissioner said at [19] that there were two questions for consideration were: '(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.' 12 This approach has been followed by the Tribunal in a number of cases such as DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 (Patsalis); Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35; O'Hara v North Sydney Council [2005] NSWADT 100 (O'Hara); and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56. 13 It is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69]. 14 With regard to the second part of the test set out in Shepherd, President O'Connor considered the key factors in assessing whether a sufficient search had been carried out in Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. These factors included, relevantly, the ability to retrieve any documents that are the subject of the request. What constitutes a sufficient search will vary with the circumstances. 15 In Patsalis at [63], President O'Connor said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate: see also O'Hara. In Patsalis, the documents to which the applicant sought access had existed but were subsequently lost. Numerous searches were conducted but failed to find them and, ultimately, his Honour concluded at [59] that 'it would be a waste of time to ask the agency to do any more searches'. 1. The 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 TAG has made reasonable search efforts to locate it. 2. The TAG submits that it performed reasonable searches in response to the access application, as it was required to by the GIPA Act. It acknowledges that some copies of email chains included in the Confidential Bundle omit earlier emails in the particular chain. However, it submits that this does not give rise to a reasonable ground for believing that there are additional emails that fall within the scope of the access application that were not identified by the TAG. 3. The TAG asserts, and I accept, that the information that was omitted from the particular copy that is subject to the TAG acknowledgement is in fact included elsewhere in the bundle. The GIPA Act concerned with information, not documents. I am satisfied that the information that falls within the scope of Mr Watson's access application but which was cut off from the identified email has in fact been provided to Mr Watson. I agree with the TAG submission that there is no apparent break in the continuity of any of these chains that supports the inference that certain emails have not been identified in the TAG's searches. 4. Mr Watson also submitted that wording on an email from the TAG's Ms Linda McGirr appears to have been deleted. It is not apparent to me that this is the case. In the circumstances, with the exception of those redactions made pursuant to section 74 of the GIPA Act, I am not satisfied that any document in the material that has been provided by the TAG has been altered. 5. In her statement of 6 March 2015, Ms Day indicated that she: 1. contacted all officers of TAG referred to in the access application, in order to ascertain whether they held any information that fell within the descriptors specified in the access application; 2. made further enquiries with other individuals who, by virtue of their positions within the organisation, might have held information captured by the descriptors provided; 3. identified files likely to contain relevant information, and arranged for relevant material from these to be forwarded to her; and 4. obtained hard-copy and electronic records from those people who indicated that they held material falling within the scope of the access application. 1. Ms Day subsequently caused additional searches to be conducted. These searches identified that information was also held by Ms Ann-Marie Thomsett, who was employed in the TAG's Client Services Division and, in this capacity, had been responsible for the oversight of the TAG's Miranda Service Centre. 2. Mr Watson contends that this suggests that the initial searches that were undertaken were inadequate. 3. In his access application Mr Watson sought: All correspondence (including but not limited to) emails, file notes of telephone conversations, letters and facsimiles) relating to complaints made by Matthew Robert Watson about TAG conduct during the handling of the estate and affairs of Donald Evans Watson. This includes communications to and from TAG figures including Mr Paul Marshall, Ms Ruth Pollard, Ms Linda McGirr, Mr Patrick Kennedy, Mr Steven Hughes, Ms Tanya Giffen and Mr Peter Tsarouhis; and TAG communication with the NSW Office of the Legal Services Commissioner (including communications with Mr Jim Milne and Ms Elisabeth Knight) and TAG communications with Ombudsman NSW, including communications with Mr Max Britten, Ms Sarah Unwin and Mr Bruce Barbour. Information is captured between January 2014 and August 2014. 1. I accept Ms Day's evidence in regard to the searches that she undertook. As the Tribunal's President of the Administrative Decisions Tribunal noted in Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 at paragraph [30]: 30 What constitutes a 'sufficient search' will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant. 1. In the circumstances of this matter, I am satisfied that the searches that Ms Day undertook in response to the access application clearly addressed the specific indicators contained in the application. Enquiries were made with the people expressly referred to in the application. In addition, Ms Day also made enquiries with areas of the TAG that she believed were likely to have handled complaints made by Mr Watson about the TAG's conduct, based on her understanding of the functions exercised by those areas and their potential relationship to Mr Watson's complaints. 2. Applying the reasoning in Miriani, I am satisfied that the searches initially conducted in response to the access application were reasonable. I agree with the TAG's submission that while it is unfortunate that the documents identified as being in Ms Thomsett's possession were not identified in the initial searches, this does not indicate that the initial searches themselves were not reasonable. 3. It follows, in these circumstances, that I am not satisfied that there are reasonable grounds to believe that other information that falls within the scope of Mr Watson's access application exist. I am satisfied that the search efforts made by the TAG to locate that information have been reasonable in all the circumstances of this case. Excluded information 1. I note that in the earlier decision at paragraphs [9] - [16] I dealt with the issue of "excluded information" - information that relates to a function identified in clause 4 of Schedule 2 of the GIPA Act. It is not necessary that I repeat the discussion here. 2. In regard to the redacted information, the TAG submits that some of the information is outside the scope of the access application. To the extent that the TAG has identified information as falling within that category, I agree with the submission. 3. Mr Watson is not entitled to obtain information that is outside the scope of his access application and it follows that the decision to refuse to provide that information is the correct one. 4. The information sought includes information relating to complaints Mr Watson made to the Office of the Legal Services Commission ("the OLSC") and the NSW Ombudsman ("the Ombudsman") in respect of the TAG's conduct in administering of an estate. I agree with the TAG's submission that there is an overriding public interest against disclosure of information in the possession of the TAG which "relates to" any of the functions of the office of the Ombudsman or the OLSC as set out in clause 2 of Schedule 2 to the GIPA Act. 5. Section 14 of the GIPA Act relevantly provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. 1. Schedule 1 of the GIPA Act sets out those classes of information for which there is a conclusive presumption of an overriding public interest against the disclosure. Clause 6 of Schedule 1 provides: 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5. 1. Clause 2 of Schedule 2 to the GIPA Act provides: SCHEDULE 2 – Excluded information of particular agencies Note : Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. ... 2 Complaints handling and investigative information ... The office of Ombudsman-complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993 ). ... The office of Legal Services Commissioner-complaint handling, investigative, review and reporting functions. 1. The combined effect of Section 14 and clause 6 of Schedule 1 to the GIPA Act, is that the TAG is unable to disclose this information unless the respective agency consents to their release. I am aware that the necessary consent has been given in relation to much of the information. Nevertheless, the TAG undertook a balancing exercise in order to determine whether to release that material, notwithstanding the consent. The decision was taken to release much of the information on an informal basis. 2. The information that has not been release is information which the TAG asserts is captured by clause 4 of Schedule 2 to the GIPA Act. 3. With respect to the redactions, the TAG submits that in each instance, the information falls within one or more of the following categories: 1. The information contains details of the deceased estate, including its financial and non-financial assets, and their disposition. 2. The information addresses steps taken by the TAG and its officers in the course of the administration the deceased estate. This includes: a discussion of steps that were taken in the course of management of the estate; b. details of communications with other parties in the course of administering the estate; and/or c. discussions of the legal principles applicable to the disposition of the deceased estate by the TAG. 1. I agree with that assessment of the information. I also agree with the TAG's submission that each of these classes of information is information that is "related to" the TAG's estate-handling functions by reference to its subject matter. 2. It follows that the redacted information is "excluded information" for the purposes of the GIPA Act. Conclusion 1. As will be apparent from the discussion above, I am satisfied that the TAG has undertaken reasonable searches for information that falls within the scope of Mr Watson's access application. In my view it is unlikely that further searches would locate further information that is within the scope. 2. I am also satisfied that the redactions that the TAG has made from the information that it provided to Mr Watson are appropriate in the circumstances. The redacted information is "excluded information" for the purposes of the GIPA Act. 3. It follows that the decision is the correct and preferable one and should be affirmed. Order The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 29 January 2016