Morgan v Department of Family & Community Services [2016] NSWCATAD 125

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Morgan v Department of Family & Community Services [2016] NSWCATAD 125 Hearing dates: 23 February 2016 Date of orders: 21 June 2016 Decision date: 21 June 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision is affirmed Catchwords: Government Information – personal information – refusal to deal with application - unreasonable and substantial diversion of the Agency's resources Legislation Cited: Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: Cianfrano v Premier's Department [2006] NSWADT 137 Colefax v Department of Education and Communities No 2 [2013] NSWADT 130 Category: Principal judgment Parties: Morgan (Applicant) Department of Family & Community Services (Respondent) Representation: Solicitors: Morgan (Applicant in Person) Sparke Helmore Lawyers (Respondent) File Number(s): 1510568

Reasons for decision

Background 1. The Applicant applied to the Department of Family and Community Services ("FACS" or "the Respondent") under the Government Information (Public Access) Act 2009 ("the GIPA Act") for access to information held by that agency. Her access application request was in the following terms: ALL documents (be the document hard copy - paper, or document held on computer data base - in which case print a hard copy) generated by employees of the State of NSW Housing Office - be it under the name Department of Housing or Housing NSW or other (noting that government departments apparently enjoy wasting taxpayer funds changing names - thus all forms and correspondence header paper) - from 1 January 1986 to current (other than information subject of emails sent to and from the Applicant during 2015 - obviously, thanks to technology, I have copies of that information) of which the Applicant (and/or the child - minor - of whom the Applicant was the Parental Legal Guardian - by birthing and Court Order) is SUBJECT. 1. She clarified her request as follows: The information will include - but not be restricted to: 1. Second application for public housing (that Housing NSW declared to be the first application - then on 16 July 2015 declared to be a non-existent application) dated 16 January 1987 and/or with Applicant's address noted as Bates Avenue, Paddington. 2. All other applications for public housing and/or Priority public housing. 3. The names and job titles of every Housing public servant involved in the Applicant's housing application "history". 4. Copies of medical certificates and reports lodged with Housing (Respondent) by the Applicant. 5. Records of all interaction between Housing employees and the Applicant in 2002 - including applications for reinstatement of tenancy and/or Priority Housing; allocation of "emergency" and/or "temporary" housing. 6. Records of all interaction between Housing employees and the Applicant 2004. 7. Records of all monies spent on provision of "emergency" or "temporary" accommodation - address of the accommodation; dates; name and job title of public servants who made the allocation; cost of the accommodation (billed to the taxpayer). 8. Documents citing the Reasons that the Respondent (Housing) "declined" to reinstate tenancy and/or list the Applicant on the Priority Housing list. 9. Records of "meetings" (taxpayer funded chats) of which the Applicant is subject - including involving employees of the Department of Children's Services and "Mental Health" in the private life of the Applicant (as those to agencies are now part of FACS - this information request is within the scope of Housing/FACS). 9. Basically - the entire file; plus information hidden away off the file of which the Applicant is the Subject. PLEASE NOTE: This is a basic information request lodged by the SUBJECT of the information against the HOUSING department - i.e. an agency that is not even entitled to have secret (exempt) "internal working documents". 1. Section 57 of the GIPA Act provides that an agency must decide an access application and give the applicant notice of the agency's decision within 20 working days after the agency receives the application. The Respondent failed to determine the application within the prescribed time. Pursuant to section 63 of the GIPA Act, the Respondent is deemed to have decided to refuse to deal with the application. 2. Section 80(c) of the GIPA Act provides that a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), is a reviewable decision. The Applicant applied to the Tribunal for external review in relation to the deemed refusal. 3. The matter was listed for a planning meeting conducted by the Tribunal. Following that Planning Meeting the Respondent conducted a search of the housing tenancy file held in relation to the Applicant and identified approximately 2500 pages/folios as falling within the scope of the request. Mr Bazzo, the Respondent's Right to information Officer, estimated that it would take approximately 139 hours to decide the application. 4. In accordance with section 60(4) of the GIPA Act, Mr Bazzo wrote to the Applicant and provided her with an opportunity to reduce the scope of her request. In response to Mr Bazzo's letter the Applicant advised that she refused to amend the application. Mr Bazzo then determined the access application. 5. In his determination Mr Bazzo stated: [A]s you have refused to reduce the scope of your request, my decision is that the time and work involved in processing your request would unreasonably and substantially divert this agency's resources away from delivering its core business to its clients and stakeholders most in need. I further advise that in accordance with Sections 58(1)(e) and 60(1)(a) of the GIPA Act 2009, I have decided to refuse to continue processing your application. 1. The Applicant maintained her application for external review of the Respondent's determination.