Styles v Wollondilly Shire Council [2016] NSWCATAD 182

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Styles v Wollondilly Shire Council [2016] NSWCATAD 182 Hearing dates: 19 May 2016 Date of orders: 19 May 2016 Decision date: 19 May 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: (1) The decision of the Respondent to refuse to deal with the access application is set aside. (2) The decision of the Respondent to request payment of an advance deposit is affirmed. The date for payment is extended to 16 June 2016. Catchwords: Government information – Processing charge – Advance deposit – Legislation Cited: Government Information (Public Access) Act 2009 Category: Principal judgment Parties: Lynette Styles (Applicant) Wollondilly Shire Council (Respondent) Representation: Solicitors: L Styles (Applicant in person) Lindsay Taylor Lawyers (Respondent) File Number(s): 1510813

REASONS FOR DECISION 1. This matter concerns a determination by the Respondent in regard to a formal access application ("the access application") that the Applicant lodged with Wollondilly Shire Council ("the Respondent" or "the Council") under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by the Respondent. The Applicant had made an application for informal access prior to making the access application.

Background 1. The access application was in the following terms. I refer to my correspondence pursuant to GIPA legislation for informal access to the file/s on Tahmoor Playground Cnr Larkin & York Streets Tahmoor, dating from February 2015 and the email correspondence from Michael Malone demanding fees, and the General Manager's letter dated 30 October 2015 in which the General Manager states: "If you do not wish to pursue the Information by means of an informal application under the GIPA Act, it is open to you to make a formal application.'" As I understand it, Tahmoor Playground was purchased by public subscription by Tahmoor citizens and is not owned by Wollondilly Shire Council. However, as Council has seen fit to refuse access without payment of fees outlined in Mr Malone's email, I will act on the General Manager's directive and make formal application for access to the file/s, noting that Council has no legal jurisdiction to change any person requesting information for supervision by Council employees. In relation to the above, and as the General Manager and/or Wollondilly Shire Council has no legal jurisdiction to change any person for supervision on informal access to information held by Council I request unsupervised access only to Council file/s on Tahmoor Playground owned by the community, noting that the information is required for literary purposes and was requested informally commencing in February 2015. No photocopying of any description is required pursuant to this request. The request for this information is in the public interest. 1. The Respondent's Senior Administration Officer Governance, Ms Susan Ogden, acknowledged receipt of the access application and sought clarification of the scope of the request. Ms Ogden asked the Applicant to "confirm that the scope can be amended to information dated between 1920 and 1970 as noted in your previous informal request to Council". Ms Ogden also referred to the possibility of charges for processing the application. This suggested narrowed scope reflects a statement that the Applicant made in an email to Mr Michael Malone, the Council's Director Infrastructure & Environment. In her email dated 11 September 2015 she wrote: This is a research project and by the very essence of the concept, it's about finding historical information of interest to the centenary of Tahmoor. By its very nature, the letters you make reference to in your email may or may not be of interest and I can't discount them until after ascertaining content. I would be particularly interested in letters regarding the playground from members of the long dead Tahmoor Progress Association which originated in the 1920s. As to the contingency of staff being mentioned, that also may be of interest depending on the historical input. I simply won't know until I see what the files consist of. Having said that, I could safely guess that I would not be interested in the content of files after 1970/1980 up to the current point in time. 1. In response to Ms Ogden's request by letter dated 25 November 2015 the Applicant wrote: To my knowledge, no Council files exist on Tahmoor Childrens Playground for the years 1920 to 1930 to 1940 to 1950 and up to about 1955, 1956 or 1957. Council would be in a better position to confirm that files do not exist for those years than I am and a competent search of Council's records would take approximately 1 minute. My search of the Tahmoor Childrens Playground file/s is also intended to establish why Council changed the name of the playground to EMMETT PARK in 2013 without community consultation, noting that the land was purchased by public subscription. 1. The Applicant did not provide her consent to Ms Ogden's request that she "confirm that the scope can be amended to information dated between 1920 and 1970". Ms Ogden requested that Robert Szoszkiewicz and Margaret Ackerly undertake searches for the information requested. Those searches were completed by about 4 December 2015. 2. By letter dated 8 December 2015 Ms Ogden wrote to the Applicant stating: The broad nature of your request, as it currently stands, requires an unreasonable and substantial diversion of Council's resources in searching for any relevant information. To explain further, the historic information held on Microfiche is broadly categorised and the films are not indexed. This means each roll of film requires examination in its entirety to locate any information relevant to your request. I appreciate your preferred form of access is to view all documents and files yourself. However, the information sought requires assessment for any relevant public interest considerations prior to disclosure and some information is held in a format that can't easily be inspected by a member of the public and will require copying to print. The time spent on processing the application to date is 16 hours. This time consists largely of the time spent viewing and retrieving relevant information held on microfiche and searching for information in Council's electronic document management system. At this point the searches are incomplete and given that searching for the historic information is extremely time consuming, on your current request parameters, I am unable to provide an accurate estimate of the amount of time required to finish processing your application. I am writing to give you the opportunity to amend your application to refine and reduce the scope [GIPA Act, Section 60(4)]. I can be contacted on 4677 9728 should you wish to discuss your application. 1. In response to Ms Ogden's request the Applicant amended the scope of the access application to exclude microfiche documents. By letter dated 9 December 2015 she wrote: I acknowledge receipt of Council's letter dated 8 December in reply to my letter dated 26 November 2015. Council claims that my request "requires an unreasonable and substantial diversion of Council's resources in searching for any relevant information ... held on microfiche." I have not asked to view microfiche files and do not wish Council to waste unnecessary time searching microfiche files, noting that my original request for the information commenced in February 2015. That is now ten (10) months ago. I am seeking access to the Tahmoor Children's Playground file/s in hard copy in order to complete an historical project on the first 100 years of Tahmoor from 1917-2017. That hard copy information will give me access to resolutions made by Council regarding land purchased by the Tahmoor community through the Tahmoor Progress Association and other decisions made. Information from the period 1957/1958/1959 is 55 years old and any copyright material would have expired long ago. I repeat my request for the information pursuant to the GIPA Act requested in writing on 19 November 2015: "I request unsupervised access only to Council file/s on Tahmoor Childrens Playground purchased by the community, noting that the Information is required for literary purposes and was requested informally commencing in February 2015. No photocopying of any description is required pursuant to this request. I do not request access to microfiche. I seek access to hard files only." 1. Ms Ogden subsequently wrote to the Applicant and requested payment of an advanced deposit. On 17 December 2015 she wrote: On 20 November 2015, you applied for access to certain government information under the Government Information (Public Access) Act 2009 (GIPA Act) held by Council. I have estimated that the cost of processing your application is likely to be $690 based on 23 hours of processing time. To date, 15 hours has been spent and I estimate that a further 8 hours will be necessary to consider and compile the information you have requested. My calculations are based on the following: Application fee and 1st hour of processing $ 30.00 Next 22 hours @$30/hr $660.00 Total $690.00 Before proceeding any further with your request, I require a deposit of $330.00 being 50% of the estimated cost remaining, to be paid on or before 19 January 2016. Failure to pay by the due date means I may refuse to deal further with your application. You will also forfeit your application fee of $30. 1. Ms Ogden also provided a schedule of processing actions and times. 2. On 23 December 2015 the Applicant applied to this Tribunal for review of Ms Ogden's decision to request payment of an advanced deposit. 3. On 20 January 2016 Ms Ogden purported to determine to refuse to deal with the access application. In her Notice of Decision she stated: 1. Summary of access application On 20 November 2015, Council received your access application under the Government Information (Public Access) Act 2009 (GIPA Act), in which you sought access to the following documents: "The file/s on Tahmoor Playground Cnr Larkin & York Streets Tahmoor." On the 9 December 2015, after consultation with you, the scope was amended to exclude any information held on Microfiche. 2. Decision to refuse to deal with application I am authorised by the principal officer, for the purposes of s, 9(3) of the GIPA Act, to decide your access application. I have decided to refuse to deal with your access application under s. 60(1)(c) of the GIPA Act. The reason for my decision is because you failed to pay an advance deposit of $330 by 19 January 2016 as requested in my letter dated 17 December 2015. This decision is reviewable under s. 80(j) of the GIPA Act, as discussed in part 3 of this Notice. 1. It appears that at the time that she made that determination Ms Ogden was not aware of the application to the Tribunal seeking review of the decision to require an advanced deposit. 2. The Council concedes that there was no power to make the decision to refuse to deal with the access application because an application had been lodged with the Tribunal. It accepts that it should be set aside. In the circumstances, if it is necessary to do so, I determine that that decision is set aside. 3. The matter came before me for hearing on 19 May 2016 at which time I agreed with the Council that the access application, clarified by the Applicant's letter of 26 November 2015 did not narrow the scope of the request to exclude information dated before 1920 or after 1970. The Applicant had indicated that she did not think that the Council would hold information that is within the scope of her request "for the years 1920 to 1930 to 1940 to 1950 and up to about 1955, 1956 or 1957" but she left it to the Council to search. 4. I also formed the view that by indicating that her request was also intended to establish why the Council changed the name of the playground to Emmett Park in 2013 she had extended the scope of the request to include information dated at least to the time that the name of the park was changed. 5. In my view, this is a very broad request. There is correspondence in evidence to suggest that the Applicant was aware, or should have been aware, that many Council files are kept on microfiche. Prior to 9 December 2015 there was no correspondence in relation to the access application to suggest that the Council should not search microfiche. Prior to that date, there was no basis on which the Council should have excluded microfiche from its searches for information falling within the scope of the request. 6. I determined that the Respondent's decision to request an advanced deposit was reasonable and I affirmed the decision. The Applicant has requested written reasons for my decision. These reasons are provided in response to that request.