Templeton v Office of Environment & Heritage [2016] NSWCATAD 312

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 Hearing dates: 11 October 2016 Date of orders: 11 October 2016 Decision date: 11 October 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision that the information sought by the Applicant is not held by the Office of Environment and Heritage is affirmed. Catchwords: Government Information Public Access – scope of request - information not held by agency - sufficiency of search Legislation Cited: Government Information (Public Access) Act 2009 Cases Cited: Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 Category: Principal judgment Parties: David Templeton (Applicant) Office of Environment & Heritage (Respondent) Representation: J Coghlan, (Agent for Applicant) M Moore (Agent for Respondent) File Number(s): 1610140

REASONS FOR DECISION 1. This is an application for review of a determination by the Office of Environment and Heritage ("the OEH") in relation to an access application by Mr Templeton ("the Applicant") under the Government Information (Public Access) Act 2009 ("the GIPA Act"). 2. Initially the OEH considered that the access application was invalid because the Applicant had not provided enough detail about the information he was seeking and because the determining officer believed that the information requested may have been covered by an earlier application. 3. The Applicant amended and clarified the scope of his request but the OEH determined that it remained invalid, as it was not possible to identify the requested information. 4. The Applicant sought external review through the Tribunal. At a case conference with Senior Member Lucy held on 26 April 2016 the Applicant agreed that the scope of the access application was to be amended and narrowed to a request for: "All water quality reports 2004-2006 and correspondence related thereto, held by OEH. Records held by the Jenolan Caves Reserve Trust are excluded." 1. The application was remitted back to OEH for a decision to be made on or before 24 May 2016. 2. The decision in respect of the amended scope was made on 20 May 2016 by Dr Racho Donef, Senior Governance Officer, Privacy and Information Access. In his determination Dr Donef outlined the searches that he had undertaken and he explained: As a result of this extensive search, I identified only one record, which, arguably, may be of marginal relevance to the modified request. Nevertheless, I downloaded this file and contacted the Department of Premier's and Cabinet. I understand that this record has already been provided to the JMA Parties. Yet, I decided to release the record again, in case a copy of the record cannot readily be located by the JMA Parties. In summary, although a reasonable search has been undertaken, no government information falling within the scope of your application has been identified. 1. Dr Donef concluded: Having regard to the above, I have today decided under section 58(1)(b) of the GIPA Act that the information sought is not held by OEH with the possible exception of the attached record, which I release under Section 75 of the GIPA Act. 1. A further case conference was held on 21 June 2016. The Applicant did not appear on that occasion and the matter was listed for dismissal on 5 July 2016. There was no appearance by the OEH on 5 July 2016. Mr Field appeared as agent for the Applicant and Deputy President Hennessy granted his request that the matter be reinstated. The Deputy President set a timetable for the further prosecution of the matter and listed the matter for hearing on 8 September 2016. 2. The matter was relisted at the request of the OEH and a further Directions Hearing was held on 16 August 2016. On that occasion I vacated the hearing date of 8 September, made directions for the filing of further material and listed the matter for hearing on 11 October 2016. 3. The Applicant subsequently filed a considerable amount of further material in accordance with the timetable. The OEH contends that the Applicant's material does not reflect or refer to the amended scope of the access application. 4. At the hearing of the matter on 11 October 2016 Ms Coghlan appeared as agent for the Applicant and Ms Moore appeared for the OEH. 5. Ms Coghlan accepted that the scope of the access application had been narrowed as set out above. The matter therefore proceeded on the basis of the narrowed scope of the request. As noted, the narrowed scope excluded records held by the Jenolan Caves Reserve Trust ("the Trust"). 6. Ms Moore indicated that the OEH has no access to the Trust's records. The Trust is a separate agency for the purposes of the GIPA Act. Whenever the OEH receives an application under GIPA for information that is held by the Trust, the OEH asks the Trust to search its records. In this particular matter, the OEH did not ask the Trust to search its records because the records held by the Trust are excluded. 7. As noted above, the narrowed scope of the request seeks all water quality reports 2004-2006 and correspondence related thereto, held by OEH. The OEH determination found that the agency does not hold any water quality reports. However Ms Coghlan submitted that there must have been some communications relating to those reports. She said that there were several independent reports prepared in relation to the water quality at Jenolan Caves. The Applicant seeks the correspondence in relation to those reports. 8. Following the hearing on 11 October 2016 I determined that the decision that the information that was requested is not held by the OEH was the correct one and therefore it should be affirmed. The Applicant has requested written reasons for that decision. These reasons are provided in response to that request.