Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rowell v Department of Family and Community Services [2017] NSWCATAD 221 Hearing dates: 3 August 2016; 23 January 2017 Date of orders: 13 July 2017 Decision date: 13 July 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decisions under review are affirmed Catchwords: GIPA ACT- Government Information – disclose personal information - prejudice the effective exercise of an agency's functions - Unreasonable diversion of resources Legislation Cited: Government Information (Public Access) Act 2008 Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 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 Cianfrano v Premier's Department [2006] NSWADT 137 Colefax v Department of Education and Communities No 2 [2013] NSWADT 130. Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206 McKinnon v Secretary, Department of Treasury [2006] HCA 45 MJ v Department of Education & Commerce [2013] NSWADT 213 Nasr v State of New South Wales [2007] NSWCA 101 Office of Finance and Services v APV and APW [2014] NSWCATAP 88 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 Category: Principal judgment Parties: Sandra Rowell (Applicant) Department of Family and Community Services - NSW Land and Housing Corporation (Respondent) Representation: S Rowell (Applicant in person) Solicitors: Crown Solicitor's Office; Sparke Helmore Lawyers (Respondent) File Number(s): 2016/00377892 (1610107); 2016/00377894 (1610109) reasons for decision 1. The Department of Family and Community Services ("FACS") owned 293 former social housing properties in the Dawes Point - Millers Point area of Sydney. The NSW Land and Housing Corporation ("the LAHC") is an agency of FACS, and owns and is responsible for the State's social housing portfolio, including the former social housing properties in Millers Point. 2. In 2008, the NSW Government announced its plan to sell the social housing properties in Millers Point. Initially, sales were made by way of offering 99-year leases. In March 2014, the government announced that the remaining properties were to be offered as freehold. 3. The Applicant is a 99 year leasehold owner of a property at Millers Point ("the property"). She acquired the lease at public auction in 2012. She lodged two access applications under the Government Information (Public Access) Act 2008 ("the GIPA Act") with the Respondent. The access applications are specifically addressed to the properties sold under the 99 year leasehold program. 4. The Applicant identified her motives for the access applications as: 1. ensure I have been treated fairly and determine if all lease contracts were administered in a consistent and transparent manner, 2. to identify the process for dealing with my lease during the term of the contract including how is to be administered and who has responsibility or authority for management of the contract. 3. to identify any matters which may affect the proposed lease to freehold conversion which the department has been addressing since 2014 if this does eventuate. 4. to ensure the manner of lease sales was consistent, fair and aboveboard. 1. The Applicant was not satisfied with the outcome of her access applications and sought external review in the Tribunal in regard to each of those requests. 2. The first of the access applications ("GIPA 1") requested 19 items of information: 1. Copies of all correspondence, file notes, summaries of telephone discussions and summary of meetings and any other discussions between Family & Community Services (FACS), Land & Housing Corporation (LAHC) and the Office of Environment & Heritage NSW (Heritage NSW) in relation to mandatory Endorsed Conservation Management Plans (ECMP) for all Millers & Dawes Point properties from 2014 to date. 2. Copies of all correspondence, file notes, summaries of telephone discussions and summary of meetings and any other discussions held with the City of Sydney (CoS) in relation to the draft Millers Point LEP & DCP in particular relating to the necessity for ECMP for ALL properties within the conservation area to access the planning process. 3. Copies of all correspondence, internal file notes and discussions concerning the protection of 99 year leaseholders and non-heritage property owners who do not have ECMP's to retain the right to lodge planning & development applications with CoS in light of the proposed changes mentioned under point 2. 4. Minutes of any joint meetings between LAHC, CoS and Heritage NSW concerning the abovementioned draft LEP & DCP. 5. Any information from FACS files relating to the above changes particularly as it relates to non-government owned properties and those on 99 year lease. 6. List of all properties being offered for sale including those which have been sold freehold since 2014 to date for which ECMP's have been obtained as at December 2015. 7. List of all the 99 year leasehold properties in Millers & Dawes Point which are under the control of LAHC. 8. List of the 99 year leasehold properties which have ECMP's, whether the endorsed CMP was modified in any way from the CMP in each of the 99 year lease, if this was agreed with the respective leaseholders and date of endorsement for each. 9. The dollar amount charged by LAHC or FACS, if any, to each 99 year leaseholder who now has an ECMP, listed by property. 10. List of the 99 year leasehold properties which do not have ECMP's. 11. Of the 99 year leasehold properties without ECMP's provide a summary for each property detailing the position and stage reached in the endorsement process and whether each leaseholder was consulted and agreed to any amendments if these differ to the 99 year lease. 12. Identify any 99 year leasehold properties requiring an ECMP in order to lodge a development application. This should include those properties yet to receive planning permission from CoS for renovation or those specifically requested by the Land & Environment Court for an ECMP before resubmission to the consent authority. 13. List of each 99 year leasehold property where (as at December 2015) LAHC retains either the entire Bond or has partial Bond deposited cash in a trust account, either LAHC or FACS. 14. List of 99 year leasehold properties where LAHC have refused to sign S57 Exempt Work Applications for work listed in the Lease Schedule of Work and explanation why. 15. List of all 99 year leasehold properties managed by LAHC including auction sale date for each property and the actual completion date when the lease was assigned and final payment made. 16. List of any 99 year leases which remain to be finalised, including the original date of sale. 17. List of all 99 year leasehold properties where leaseholders were permitted access to the property and allowed to undertake repair work before the final payment was made. 18. List of all 99 year leasehold properties where no bond was paid by the Leaseholder to LAHC or FACS at the time of final settlement. 19. List of properties where the 99 year leaseholder was able to occupy the premises before settlement, including the date of access, amount of monthly rent paid to LAHC, how the amount was determined, and if not paid weekly or monthly when these amounts were received by LAHC. Also provide the settlement date for each property. 1. This request was also clarified and narrowed following discussions between the parties. GIPA 1 is the subject of Tribunal matter number 2016/00377894 (formerly matter number 1610107). 2. The second access applications ("GIPA 2") requested: Copy of my file (SA & SJ Rowell) & any other documents within LAHC concerning 1. refusal to sign s57 Exempt Work requests under Heritage Act & 2. why endorsed conservation management plan has not been initiated by LAHC. 1. GIPA 2 is the subject of Tribunal matter number 2016/00377892 (formerly matter number 1610109). 2. The Applicant subsequently clarified the scope of the GIPA 2 request and provided the LAHC with a list of specific items of information that she sought. This request was also clarified and narrowed following discussions between the parties. This request comprised: 1. Copy of the file for [the property]. 2. Policy documents relating to the 99 year lease offering of Millers Point & Dawes Point properties by the government, FACS &/or LAHC including but not limited to the properties offered for lease at auction, date of the auction, amount achieved, deposit paid and the actual date settlement of the lease and the bond deposit paid by property. 3. Policy documents covering the administration of these 99 leasehold properties throughout the lease term, including the role & responsibility of persons responsible for the overview and monitoring of leaseholders. 4. Policy documents outlining the FACS &/or LAHC rules and procedures for authorising (providing signature as land owner) 99 year leaseholder work applications. Documents covering the process for S57 Exempt Work applications and S60 applications under the Heritage Act, and similarly as regards City of Sydney development applications, integrated development applications and S96 modifications to such. 5. Policy documents detailing the role and scope of the department and measures used to determine whether any 99 leaseholder applications for repair or other work should be rejected and refused signature by either LAHC or FACS. 6. Deleted. 7. Copy of the FACS Code of Ethical Conduct. 8. Copy of LAHC Statement of Business Ethics. 9. Deleted. 10. Policy documents containing the process for endorsed conservation management plans. 11. Documents containing particulars of the contractors or consultants engaged to prepare endorsed conservation management plans for each Millers Point and Dawes Point property with the scheduled timetable and cost. 1. The two matters were heard together but evidence was given in relation to each of the matters. 2. The Respondent subsequently made a number of supplementary determinations in these matters following further searches that were undertaken as directed by the Tribunal. 3. At the conclusion of the hearing on 3 August 2016 I directed the Respondent to undertake further searches for specific items of information that was within the scope of the Applicant's access applications. This included: (a) a ministerial briefing search, and (b) a review of the e-tender register to identify Millers Point 99 year leasehold transactions where the identity of the leaseholder had been made public. 1. I set a timetable for the further conduct of the matters and the matters were set down for a further case conference to be held after the Respondent had completed a further determination. 2. Progress of the matters was delayed due to a number of factors. As a consequence of an administrative error, the matters were incorrectly listed for a case conference before Senior Member Perrignon and the Crown Solicitor ceased to act for the Respondent and was replaced by Sparke Helmore Lawyers. Senior Member Perrignon rescheduled the matter for hearing on 23 January 2017 and he extended the time by which the Respondent was to complete the redetermination to 2 December 2016. It appears that the Senior Member also gave the Respondent leave to adduce further affidavits to address the issue of the adequacy of the searches that were undertaken. 3. The Respondent made a further supplementary determination on 2 December 2016. At that stage the proceedings remained on foot. I do not agree with the Applicant's submission that this material was introduced after the matter has been concluded. Clearly, it was filed and served well before the hearing date set by Senior Member Perrignon and the Applicant has had the opportunity to respond to it. In the circumstances I do not agree that it would be procedurally unfair to take that material into account. I am satisfied that the 2 December 2016 supplementary determination and the Respondent's further evidence was both relevant and warranted and should be taken into consideration. 4. The following further decisions have been made: 1. On 15 July 2016, a supplementary decision was made in relation to both applications ("the July Decision"). 2. On 21 November 2016, a decision was made following further searches for information requested in GIPA 2 item 2, pursuant to the Orders of the Tribunal made on 3 August 2016 ("the November Decision") 3. On 2 December 2016, a further supplementary decision was made ("the December Decision"). 1. As the December Decision noted, a number of documents that had previously been identified as relevant to the Applicant's request but had been omitted from an earlier decision were not discovered until the files were provided to Sparke Helmore Lawyers. 2. The December Decision also addressed information considered to be relevant to the access applications that had been identified during additional searches undertaken following the hearing on 3 August 2016. 3. A significant amount of material has been released to the Applicant. However, she remains of the view that the Respondent should hold further information that falls within the scope of her requests. She contends that the Respondent's attempts to locate the requested information were not adequate or reasonable. She also seeks access to information that has been identified as falling within the scope of her access applications but which has not been released. Applicable legislation 1. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. Most recently this was discussed by Senior Member Leal in Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206. 2. The objects of the Act are set out in section 3(1): In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 1. "Government information" is given a wide meaning under s4 of the GIPA Act being "information contained in a record held by an agency." 2. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). In accordance with s9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information. 3. The general public interest considerations in favour of access to government information set out in section 12 of the GIPA Act mean that the balance is always weighted in favour if disclosure. 4. Section 13 of the GIPA Act provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 1. Section 13 of the GIPA Act requires decision makers to: * identify relevant public interest considerations in favour of disclosure, * identify relevant public interest considerations against disclosure, * attribute weight to each consideration for and against disclosure, and * determine whether the balance of the public interest lies in favour of or against disclosure of the government information. 1. Section 15 of the GIPA Act sets out the principles that apply to public interest determination as follows: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. Section 14 of the GIPA Act 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. The table to section 14 sets out the relevant public interest considerations against disclosure. In this matter, the Respondent has identified two public interest considerations against disclosure as relevant: (a) Clause 1(f) - prejudice the effective exercise by an agency of its functions (b) Clause 3(a) - personal information 1. Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. 2. Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information. 3. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. In relation to each of the asserted section 14 table factors the agency must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table. 4. The words "could reasonably be expected to" are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In Cockcroft, Bowen CJ and Beaumont J explained, at 190, that the words ...require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 1. In McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] Hayne J pointed out that it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect. 1. 'Personal information' is defined in clause 4 of Schedule 4 to the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 1. Clause 1 in Schedule 4 to the GIPA Act provides that to 'reveal' information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). Where an applicant is already aware of information, the release of the information could not 'disclose' or 'reveal' that information. The "essence of disclosure" is "making known to a person information that the person to whom the disclosure is made did not previously know": Nasr v State of New South Wales [2007] NSWCA 101 at [127]. 2. The mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure." 3. Section 53 of the GIPA Act sets out the obligations of agencies in locating government information requested in an access application It provides as follows 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 approach to be taken in regard to the question of the reasonableness of the searches that have been undertaken by an agency has also been considered in a number of decisions in this Tribunal. 2. In Camilleri at [11] Isenberg JM applied the approach to sufficiency of search as had been applied under the Freedom of Information Act 1987 ("the FOI Act"). In doing so, she applied the decision of Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. In Hemeon at [18], O'Connor DCJ adopted the Information Commissioner of Queensland's approach to sufficiency of search issues as discussed in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. In Shepherd the Information Commissioner said at [19]: [T]here are two questions which I must answer: (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. 1. I agree with that approach. In relation to the first limb of the test, it is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Camilleri at [13] citing Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 where O'Connor DCJ stated at [69]: 69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence. 1. Section 54 of the GIPA Act sets out the obligations to consult with third parties in certain circumstances before providing access to information relating to the person. It provides as follows 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). … The Issues for determination 1. The Applicant has expressed concern about the accuracy of the Respondent's determinations and contends that the agency must hold other information that is responsive to her requests. This raises the issue of whether reasonable searches have been conducted to locate the information. 2. To the extent that the Respondent has located information that falls within the scope of the access applications and has decided to refuse access to that information, the issue arises as to whether it is justified in doing so. The material before the Tribunal 1. The LAHC relies on the Affidavit evidence of its GIPA officer, Ms Anke Gibbons; LAHC's Development Director, Renewal, Mr Nigel Sharpe; and its Project Officer Renewal (Millers Point) Ms Carmen Debsieh. 2. Written submissions have also been provided on behalf of the LAHC. 3. Ms Gibbons, and the LAHC's heritage architect Mr Anthony Mitchell attended the hearing, gave oral evidence and were cross-examined. 4. The Applicant relies on her own evidence and that of Ms Mary Sutton. Ms Sutton is also a joint leaseholder of a property in Dawes Point. 5. The Applicant also provided written submissions in support of her case. The Respondent's case 1. The Respondent initially determined to release all information that it identified as relevant to the GIPA 2 request, and released 918 pages of material. That determination was made on the basis of the Respondent's construction of the request. This construction was subsequently changed following the commencement of proceedings in the Tribunal. 2. The Respondent determined not to release a number of policy documents that it identified as falling within the scope of the GIPA 2 request, pursuant to section 58(1)(c) of the GIP Act, on the basis that the information was already available online. 3. Ms Tipene, the solicitor for the Respondent, submitted that there is some overlap between the two access applications and that a number of documents have been released which relate to various aspects of the overlapping items. She further submitted that the information sought may be considered thematically as follows: 1. Information relating to sales and settlement (including bond information) of other properties by 99-year leasehold in Millers Point/Dawes Point (GIPA 2 item 2, GIPA 1 items 6, 17 and 18): 2. Information or policy relating to the administration of the 99-year lease properties in Millers Point/Dawes Point (GIPA 2 items 3-5); 3. Information relating to ECMPs (GIPA 2 items 10 and 11, and GIPA 1 items 2, 3, 4 and 8-12); and 4. File notes and minutes of meetings between the Respondent, City of Sydney and Heritage NSW in relation to the Local Environment Plans (LEP) and Development Control Plan (DCP) (GIPA 1 items 2, 4 and 5). 1. Ms Tipene submitted that reasonable searches have been conducted to identify the information sought, and that, subject to public interest considerations against the disclosure of some material, all of the information identified as relevant to the Applicant's two GIPA applications has been released. The Respondent's position is that it does not hold any other information that falls within the scope of the access applications. The searches undertaken 1. The Respondent relies on the evidence of Ms Gibbons in regard to the searches undertaken. It submits that the searches conducted by the Respondent have been reasonable in the circumstances and that the Shepherd test and section 53 of the GIPA Act have been satisfied, and that no further information exists which satisfies the request for information. 2. Ms Gibbons provided an affidavit and she also gave oral evidence. She gave evidence of the searches that she undertook to locate information that falls within the scope of the access applications. Ms Gibbons estimated that over 100 hours of the agency's time was spent in responding to the Applicant's GIPA applications. She said that no additional material is available. She could not identify any other searches that could be done to locate further information. 3. Other officers of the Respondent also undertook searches. Enquiries were made with various business units and individuals within the agency, and others were instructed to conduct their own searches for the information. 4. Ms Gibbons gave evidence that she consulted with Mr Sharpe. Mr Sharpe provided an affidavit in which he set out details of the searches that he caused to be undertaken in response to the access applications. This included an electronic search of TRIM, an electronic search of the Renewal team's hard drive, and a review of his own paper-based diary. 5. Ms Carmen Debsieh provided an affidavit in which she explained that in June 2016 she undertook searches in relation to the access applications and she outlined the searches that she undertook. She stated that she searched the Respondent's document management system ("TRIM") for information related to "Sandra Rowell", "Millers Point", "99-year leases", and "City of Sydney". She also searched the electronic folder used by the Renewals team for the creation of documents, using these same search terms. As a result of her searches, she identified several documents relevant to the Applicant's access applications. The Respondent's submissions on the searches undertaken 1. The Respondent submits that the Tribunal can be satisfied that reasonable searches have been undertaken to locate records that are within the scope of the access applications, and that no further information exists which satisfies the request for information. 2. The Respondent submits that searches were conducted using the resources reasonably available to the agency, in the most efficient manner. These searches involved electronic searches of TRIM, which is the primary database of information held by the respondent, as well as a review of archived material. 3. In addition, the Respondent's officers made extensive and reasonable enquiries with relevant business units and individuals within the agency, and instructed additional people to conduct their own searches for the information requested. 4. The Respondent submits that all avenues of enquiry have been reasonably exhausted in responding to the application over an extensive period of time, and that no further searches are likely to yield a different result. 5. The Respondent submits that there are no reasonable grounds to believe that it holds other information that falls within the scope of the access applications. It further submits that other than her personal view of the matter, the Applicant has not produced any reliable evidence to suggest that the Respondent holds any other information that falls within the scope of the access applications. The Respondent's response to the Applicant's assertions about the existence of additional information 1. Ms Tipene submitted that the Applicant's assertion that an officer of the Respondent could not perform their duties without recourse to policy documents on procedure relating to the administration of the 99-year lease properties, is nothing higher than her opinion. It also is contrary to the evidence of Ms Gibbons and Mr Mitchell that there was no written policy in the terms sought in the applications, but rather, the Respondent operated on practice as opposed to written policy. 2. Both Ms Gibbons and Mr Mitchell gave evidence that freehold properties may have ECMPs, whereas leasehold properties do not. The Respondent submits that the information that the Applicant requested concerns the leasehold sales program and it contends that it does not hold the information that she has sought. 3. Ms Tipene submitted that the Applicant's view that file notes should have been made of meetings or discussions, and that not doing so is, in her opinion irregular because other government departments do so do not assist. She referred to Mr Sharpe's evidence that the information that he provided was the extent of the information available in response to the Applicant's request. She submits that in circumstances where another agency or body has been identified in evidence as the responsible entity for administering a matter upon which information is sought, it is reasonable to expect that the other entity, as opposed to the Respondent, would hold the information sought. 4. The Respondent submits that there are no reasonable grounds to believe that it holds additional information or documentation that is within the scope of the requests. The public interest considerations 1. The Respondent submits that the public interests considerations against disclosure in clauses 1(f) and 3(a) of the Table to section 14 of the GIPA Act, are relevant to these matters. Clause 1(f) of the Table to section 14 1. Clause 1(f) of the Table in section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to "prejudice the effective exercise by an agency of an agency's functions." 2. The Respondent submits that full disclosure of the redacted material of items 1 and 2 of the November Decision and items 5, 10, 11, 24, 26 and 27 of the December Decision could reasonably be expected to prejudice the effective exercise by LAHC of its statutory functions. 3. Ms Tipene submitted that public interest considerations against disclosure need to be examined at a broad operational level and that many of those considerations are concerned with systemic features of the operation of government: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5. 4. Ms Tipene further submitted that in terms of 'prejudice' to the effective exercise of an agency's functions, the meaning of 'prejudice' has its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 5. It is not in dispute that the Respondent is a Public Trading Enterprise and is responsible for owning and managing NSW Government social housing assets with the goal of providing more houses for people in need. In order to achieve these objectives and fulfil its functions, the Respondent manages and develops land and housing assets through acquiring, disposing of, and utilising land and housing assets, and must do to in a way to best utilise these assets and achieve maximum outcomes at the least cost. Whilst delivering a public service, the Respondent is required to operate in a commercially sound manner, in order to fulfil the delivery of those services, and provide social housing for people who need it. 6. The Respondent submits that there is an overriding public interest against disclosing in full to the Applicant, the material that has been released in part to the Applicant in the November and December Decisions. 7. It relies on Ms Gibbons' evidence that the redacted information relates to budgetary and financial figures for funds used in acquiring, disposing of and utilising LAHC's land and housing assets. Ms Gibbons further states that should this information be released, LAHC would be prejudiced in negotiating fees for the provision of goods and services integral in acquiring, disposing of and utilising its land and housing assets. 8. The Respondent submits that because of the significant public interest in ensuring that no prejudice is suffered by LAHC in exercising their crucial functions including the provision of social housing to individuals in need in New South Wales, this public interest consideration against disclosure to the Applicant should be accorded great weight by the Tribunal. 9. The Respondent further submits that the Tribunal should give considerable weight to this public interest consideration against disclosure, as the Tribunal did in MJ v Department of Education & Commerce [2013] NSWADT 213, because of the significant prejudice which the Respondent will suffer in its ability to effectively exercise its functions. Clause 3(a) of the Table to section 14 1. The Respondent submits that the personal information redacted from the released material relates to individuals other than the Applicant. It contends that disclosure of the redacted information would have the effect of revealing the personal information of those individuals. The July decision 1. The Respondent submits that by item 2 of GIPA 2, and items 17 and 18 of GIPA 1, the Applicant sought information relating to other leasehold owners including final payments, settlement figures, and deposits and bonds paid. 2. In the July decision, two documents were withheld on the basis that release of the material would reveal the personal information of 32 leaseholders listed in the information. Those individuals are identifiable by their addresses, which are set out in the material. The material contains information including the individuals' bonds and works information, including required restoration work and timetable requirements. This information would not otherwise be readily available to the public but for its disclosure to the Applicant. 3. The Respondent relies on the decision in Office of Finance and Services v APV and APW [2014] NSWCATAP 88 which found that disclosure of information relating to the individuals' home and restoration works of a 99-year lease property in Millers Point disclosed personal information. The Respondent submits that the information that is being withheld on the basis of personal information in the present matter is that type of information. 4. The Respondent submits that the personal information is not the names of the leaseholders; it is the bonds and works information of those individuals, who are identifiable by their address. It says that the information relating to bonds and work, as contained in the withheld material, is not information that is publicly available. It is information generated in the process of a conveyancing transaction, and is the private affairs of persons other than the Applicant. 5. The Respondent submits that insofar as the Applicant seeks information relating to pre-settlement contracts, those contracts were, at the times of auctions, publicly available. However, the Respondent further submits that it is apparent from the wording of her request and her submissions that the access application also relates to post-settlement information. 6. The Respondent contends that as the information relating to the 32 leaseholders in no way contains personal information relating to the Applicant, the public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. 7. Further, it contends that the nature of the personal information is relevant to the weight placed on it in the balancing test. In the present matter, the nature of the information is information relating to the private affairs of third parties' homes and the management of the homes and financial affairs. Accordingly, the Tribunal should place significant weight on this fact, which weighs against the disclosure of the information. This is not information that has any relevance to the Applicant's own personal information, and there is no public interest in disseminating the personal information of third parties to the Applicant. The November and December decisions 1. The names of individuals have been redacted in item 1 of the November Decision, and items 4 and 24 of the December decision. The Respondent caused redactions to be made to those names in order to remove the personal information from the material. The balance of the information has been disclosed. 2. For the reasons set out above, the Respondent submits that there is no public interest in these names being disclosed to the Applicant. Refuse to deal with application (section 60(1)(a)) 1. As noted above, by item 2 of GIPA 2, and items 17 and 18 of GIPA 1, the Applicant sought information relating to other leasehold owners including final payments, settlement figures, and deposits and bonds paid. In the July Decision, the Respondent refused to deal with these aspects of the applications on the basis that it would require an unreasonable and substantial diversion of the agency's resources, pursuant to section 60(1)(a) of the GIPA Act. 2. At the hearing of 3 August 2016 the Applicant indicated that she wishes to obtain the bonds information of all 32 leaseholders. The Respondent submits that dealing with this aspect of the application would require an unreasonable and substantial diversion of the agency's resources on the basis that the information is 'personal information' of a kind that requires consultation under section 54 of the GIPA Act. There are 32 third parties who would need to be consulted before the information sought could be released. 3. The Respondent submits that consideration must be given to whether the request is a reasonably manageable one in light of the agency's resources, the prospective number of documents to be reviewed, and the time and costs associated with allocating personnel and other resources that would be required to address the application. In that regard it relies on the decision of the President of the Administrative Decisions Tribunal in Cianfrano v Premier's Department [2006] NSWADT 137 ("Cianfrano"). 4. In Cianfrano the President outlined nine factors to be taken into account in assessing large requests under the Freedom of Information Act 1989, and deciding whether a request constituted an unreasonable and substantial diversion of an agency's resources. These factors have been found to be equally applicable to a consideration of whether dealing with a request under the GIPA Act would require a similar unreasonable and substantial diversion of an agency's resources: see Colefax v Department of Education and Communities No 2 [2013] NSWADT 130. 5. In Cianfrano at [62] the President stated: 62 As I see it, the factors that are relevant to an assessment of the kind required by this case, include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in Re Borthwick at 35) (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick) (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria) (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications. 1. The Respondent submits that a significant investment of personnel and resources would be needed in order to respond to the Applicant's request and therefore it is not a request which is reasonably manageable. 2. The Respondent relies on Ms Gibbons' evidence in regard to the work that the Respondent would need to undertake to deal with these aspects of the access applications and in regard to the resources available to respond to access applications. Ms Gibbons noted that GIPA Act applications related to assets only are managed by LAHC. The LAHC had received 38 applications under GIPA Act between January and December 2016 and those applications are managed by a single part-time GIPA officer. 3. The Respondent seeks a decision that its decisions are affirmed. The Applicant's case 1. The Applicant provided detailed submissions in regard to each of the applications and in response to each of the Respondent's determinations. In each of her submissions she has criticised the Respondent's approach and expressed doubt in regard to the conclusions reached. 2. The Applicant filed submissions prior to the hearing ("the August submissions") and provided a response to the July Decision, the Respondent's submissions in relation to that determination and the progress of the matter in the Tribunal. 3. Much of the content of the August submissions is background information regarding the Applicant's dealings with the Respondent and related entities and her motivation in seeking the information that is the subject of the access applications. She stated that the information that she is seeking "relates to Government property prior to settlement that is public contract government information, part of the publically available lease contract and has no impact on any individual's privacy." 4. The August submissions also provide a commentary on the Respondent's management of the leasehold sales program and ongoing management in relation to the leases. 5. In regard to GIPA 1 she submitted that disclosure of the information can reasonably be expected to enhance government accountability in the management of public assets and to provide transparency and accountability with respect to fairness and uniformity of decision making. The disclosure of the information would also provide a clear understanding of how public assets are managed and maintained as the term of the lease progresses. 6. In regard to GIPA 2 she submitted that there is reason to suspect that not all leaseholders have been treated equally and that there is a lack of transparency and accountability within the agency. She contends that the requested information on bonds paid at settlement and the amount of the deposit on exchange date would clarify these issues. She submitted that the public has a right to know and other leaseholders have a right to know how public assets are managed. She contends that given the value of these assets and the lease contract terms there must be documented guidelines and policies to address sales as part of government accountability, transparency and relates to the management of leases. 7. She further contends that without the guidelines the Respondent could not have controlled the lessee obligations for use of heritage architects, consultants and builders etc. 8. In the August submissions the Applicant expressed concern about the searches that the Respondent undertook to identify information that it holds that is captured by the scope of the access applications. She suggested other locations where the requested information could possibly be held. 9. She criticised both the contents and findings of the July Decision She also expressed concern that the Respondent's approach is contrary to the intentions of the GIPA Act. 10. The Applicant also disputed the decision to withhold some information. She contends that the Respondent misunderstood her request and that she is only seeking information that relates to properties before final settlement during which they remained 100% within the ownership and control of the Crown. She submitted that at the time this information was created it was public information and therefore the refusal because of personal information is not warranted. 11. She submitted that where assets remain in public ownership, the Respondent would have maintained records to show proper management in accordance with policy guidelines. She argued that the public benefit of accountability is an overriding factor in this being provided. 12. The Applicant also disputed the Respondent's finding that there are no 99 year leaseholders with an Endorsed Conservation Management Plan. She submitted that there must be a process under which the decision was made to provide some leaseholders with ECMPs. She argued that there must be a documented process by which the Respondent has arranged for those properties to have been inspected, consultants appointed and reports commissioned. 13. The Applicant filed separate submissions for each of the matters on 4 October 2016 ("the October submissions") and provided a response to the Respondent's evidence and the progress of the matter in the Tribunal. 14. In the October submissions the Applicant provided a response to the evidence given by the Respondent's witnesses and highlighted what she sees as defects in both the evidence and the underlying processes. She contends that the searches undertaken were too restrictive and inadequate to locate the information held by the agency that falls within the scope of her access applications and that the agency should hold further information. For example, she submitted that it would not be possible for officers of the Respondent to perform their duties without recourse to relevant policy documents. She expressed concern in regard to the lack of transparency in the manner in the Respondent's administration and management of leases. She contends that the Respondent's practices are irregular and open to abuse and that transparency is important to ensure fairness and consistency in its dealings with leases and individual leaseholders. 15. The Applicant also suggested a number of locations where files relating to her access application should be held. She also referred to comments made in unrelated proceedings and in other documents and submits that these suggest that additional material should exist. 16. The Applicant also expressed concern in regard to the accuracy and completeness of the information that has been released. She contends that information contained in new documents created in response to her access applications is both misleading and incomplete. 17. The Applicant also contends that a significant amount of the withheld information is already publicly available and therefore should be released. 18. The Applicant referred to minutes of NSW Heritage Council meeting of 3 December 2014 which identified her property and mentioned illegal development work had been undertaken without consent. She identified this as a reason why she needs access to her file so that she can see what information about the alleged work is on the file. 19. The Applicant filed separate submissions for each of the matters on 4 January 2017 ("the January submissions") and provided a response to the December Decision, the Respondent's additional evidence and the progress of the matter in the Tribunal. 20. She noted that the Respondent has a significant property portfolio and an obligation to manage assets or dispose of assets efficiently. She submitted that to undertake any asset disposal without a documented process would be outside the stated overreaching policy which requires that sales be done in a systematic manner. She further submitted that it is inconceivable the Respondent's Renewal unit could have delegated authority to dispose of government assets without a policy or documented process for these properties. 21. She submitted that there are ethical standards to be upheld, a need to demonstrate the core essential role of the department has not been compromised and best practice met. 22. She noted that there is a presumption in favour of disclosure and she does not consider that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. 23. In regard to GIPA 2 she noted that the contracted bond value on the signed lease and copies can be obtained for a fee from the Lands Office. However, her access application was not for that information but for the actual bond guarantee paid on each leasehold property in the period leading up to settlement as is required under the lease contract. The purpose for the request was to identify if there were variations between contracted amounts and the actual bond guarantees lodged with the Respondent. Any search of the Lands Office records would not reveal undocumented variations to the original contracts. 24. She submitted that the bond guarantee paid in the period leading up to and before any settlement should not be secret as it should relate to an open transaction involving disposal of public property. The amount was established for each property and was dependant on the extent of dilapidation of the building and the necessary work required to restore it. The Scope of Work was part of the lease contract as was the dollar value required for the bond guarantee. 25. As with the earlier submissions, the January submissions take issue with the Respondent's management of the assets management processes. Again, this appears to be intended to emphasise the need for transparency as a factor in favour of release of information and to reiterate her argument that it is inconceivable the Respondent would not hold policy documents that are within the scope of the access applications and which have not been located. 26. In addition, the Applicant identified a number of documents which she contends should be held by the Respondent but which have not been located. For example, she stated: All correspondence files remain missing. More importantly I refer to documents I have never received such as the February 2015 correspondence addressed to me from FACS-LAHC Deputy Secretary Anne Skewes Ref LMC15/1 provided in this last release. There are also personal documents which I know exist and should be on my file which have not been released. In relation to my personal file it is obvious this has not been provided, despite numerous copies of my own lease being given to me under the GIPA and duplications of this limited information. … It is clear from the released data that some additional documents do exist and further evidence that information relating to me is on file/s held by the department. The information disclosed highlights further discrepancies and omissions which should be on file. … it was only after reviewing Heritage Office minutes of December 2014 that I became aware of a serious allegation of illegal works at my property. No person from the Heritage Office had been on site and this information could only have originated from within LAHC and or FACS. It is reasonable to expect this would be documented in my property file … The few briefing documents provided in December 2016 confirm the existence of policy documents which relate to the lease sales in Millers Points. The released information is only for a few sales but clearly shows a process did exist. … 1. In relation to GIPA 2 she stated that she does not believe the Respondent has made a reasonable attempt to locate the requested information. She submits that it is evident that neither Ms Debsieh nor Ms Gibbons had any involvement in relation to the access application before June 2016. She noted Mr Sharpe's evidence that he had provided information to the GIPA Officer in December 2015 but observed that that GIPA Officer nor had that officer provided any evidence regarding the extent of their search for information. 2. She contends that the search for records to meet the access application should not have been confined so narrowly and that the search was inadequate. She submitted that the search cannot be considered to be reasonable and adequate when the deficiencies are so widespread. 3. In regard to withheld information the Applicant disputes the Respondent's argument that the information relating to early occupation, delayed settlement, and alteration of bond guarantee should not be released because it is private information of the individual. She submitted that any decision to alter contract term for asset sales must be able to withstand public scrutiny. 4. The Applicant also appears to challenge some of Mr Sharpe's evidence in regard to his delegations and responsibilities. It appears that she did not request that Mr Sharpe be available for cross-examination at the hearing on 23 January 2017 and in the circumstances I do not propose to give weight to that aspect of her submissions. 5. Similarly, the Applicant criticised the Respondent in electing to not cross examine Ms Sutton. I note that the Respondent had not been served with any evidence from Ms Sutton in advance of the hearing and therefore had no opportunity to prepare for such cross-examination. 6. The Applicant also criticised the Respondent in regard to its conduct of these proceedings and in regard to the resources expended in responding to the applications. She suggests that those resources could have been spent in searching for records under the GIPA applications and meeting its responsibilities. She asserts that considerably more information exists than has been released. For example, she contends that management and administration policies and procedures exist and some leasehold properties do have ECMP's. She submitted that the failure to provide information in response to her access application shows that the Respondent wishes to avoid public scrutiny. She also believes that there has been a deliberate decision to destroy, alter or conceal records to prevent these from being released. 7. She submitted that fairness and transparency in dealing with Crown assets is paramount and that an adverse finding should be made against the Respondent's in regard to its response to this application. Discussion 1. As noted above, the Applicant lodged two access applications with the Respondent. The two applications lodged with the Tribunal correspond to those access applications. While I agree with the Applicant that the matters are to be considered separately, I also accept the Respondent's argument that there is some overlap between the applications. 2. GIPA 1 requested 19 items of information. As revised, GIPA 2 requested 9 items of information. Three decisions are relevant to these requests: the July Decision; the November Decision and the December Decision. 3. The Respondent has undertaken searches to locate information that falls within the scope of the requests. Some information has been identified and released and some of the information that has been identified has been withheld. Some information has been identified that requires the Respondent to consult with third parties before it could be released. In the circumstances that consultation was not undertaken because of the time and resources that would be involved in doing so. That information has not been released. The Respondent's position is that it has not been able to locate any further information that falls within the scope of the requests. Were the searches reasonable? 1. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. It has provided evidence in regard to the searches that were undertaken to locate the information and also relies on evidence of the Respondent's practices in support of its position that it does not hold other types of information that the Applicant is seeking. 2. In contrast, the Applicant contends that the searches that were undertaken were too narrow and were inadequate. 3. Ms Gibbons' evidence is that the vast majority of the LAHC records are stored in TRIM, which is an electronic management system that is designed to store information so as to alleviate the need for paper filing systems. TRIM can be electronically searched by inputting information such as keywords, timeframes, TRIM reference numbers, file types and creator of the document or container. 4. In her affidavit dated 1 December 2016 Ms Gibbons stated: I conducted an electronic search of TRIM by a keyword search. The words used for my keyword search included a combination of words in the two GIPA applications, which I searched separately in respect of each item of information requested. I conducted a search of three files relating to 75-77 Lower Fort Street, Dawes Point. These three files were a pre-sale file (construction and property), sale (Conveyancing) and development file, which related to 75-77 Lower Fort Street. I have reviewed the material provided to the applicant on 15 March 2016 and I believe that all of the information identified in the three files as relevant to the applicant's request was released. In addition to conducting an electronic search of TRIM, I consulted with the following people within LAHC: a. Nigel Sharpe, Development Director, Renewal, LAHC; b. Anne Massey, who at that time was a project officer, Renewal, LAHC. Ms Massey provided me with specific TRIM reference numbers in which to search; c. Anthony Mitchell, Heritage Officer, LAHC; and d. Carmen Debsieh, project officer (Millers Point), Renewal, LAHC. 1. Ms Gibbons also stated that she undertook further searches following the hearing on 3 August 2016. In undertaking these searches she used wider search terms than she had previously used, including the terms 'leasehold', 'Ministerial' and/or 'brief'. Using these additional search terms she located further information. She determined that some of that information was not captured within the scope of the access applications and so it was not released. 2. Ms Debsieh provided an affidavit in which she explained that she undertook searches in relation to the access applications in June 2016 and she outlined the searches that she undertook. She stated that she searched the Respondent's document management system ("TRIM") for information related to "Sandra Rowell", "Millers Point", "99-year leases", and "City of Sydney". 3. I note the Applicant's submissions in relation to the adequacy of the searches. She has submitted that it is inconceivable that the Respondent does not hold other information that is within the scope of her requests. This raises the question of what other searches could be undertaken to locate that information if it is in fact held. 4. I agree with the Applicant that the Respondent's initial searches were inadequate. However, I accept both Ms Gibbons' and Ms Debsieh' evidence of the TRIM searches. In my view, it is reasonable to expect that if other information were held by the Respondent on its TRIM system; it would have been located using those search terms. 5. It is not clear whether these searches were limited to the LAHC or whether the searches would have also located information held elsewhere in FACS. However, given the nature of the information that was requested, I am satisfied that it is probable that the information would be located within the LAHC rather than elsewhere in FACS. In the circumstances, it was reasonable to limit searches to the LAHC. 6. Section 53 of the GIPA Act places an obligation on the Respondent to undertake reasonable searches using the most efficient means reasonably available to the agency. In my view, the TRIM searches were reasonable. 7. I note that in addition to the TRIM searches, Ms Gibbons also consulted a number of other officers of the agency. 8. Ms Gibbons and Mr Mitchell both gave evidence that the Respondent operated on practice as opposed to written policy. Further, Ms Gibbons and Mr Mitchell both gave evidence that the leasehold properties do not have ECMPs. 9. I note the Applicant's submissions in regard to the need for transparency in the Respondent's activities regarding the sale of public assets and the inadequacy of the Respondent's practices. The lack of written policies may in fact support her view in that regard. However, the fact that the Applicant believes that the Respondent's practices are irregular and do not accord with practices of other government departments is not evidence to support the inference that the Respondent holds further information. 10. Ms Gibbons estimated that over 100 hours of the Respondent's time has been allocated in responding to the Applicant's access applications. In my view, the combination of the TRIM searches and the consultations should have located all the information that falls within the scope of the access applications. 11. Notwithstanding the Applicant's submissions, I am not satisfied that further searches would be likely to locate additional relevant information. 12. I am satisfied that that the searches and inquiries made to locate the information requested were reasonable and adequate in the circumstances. I am satisfied that the Respondent has satisfied its obligations under section 53 of the GIPA Act. 13. For completeness, I note that there is no evidence to support the Applicant's belief that there has been a deliberate decision to destroy, alter or conceal records to prevent these from being released. Clause 3(a) of the table to section 14 - Personal Information 1. Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information. 2. The Respondent interpreted the access applications as requesting information relating to other leasehold owners including final payments, settlement figures, and deposits and bonds paid. Based on that interpretation, the Respondent withheld two documents because release of the documents would reveal the personal information of an individual. 3. I do not agree with the Applicant's submission that she has only requested information relating to pre-settlement contracts. The Respondent is entitled to rely on the access application as it was clarified. I agree with the Respondent that when correctly construed, it is clear that the Applicant has requested post-settlement information. 4. However, if the Applicant is correct and the access applications did not request post-settlement information, then that information would be outside the scope of the access applications. 5. Ms Gibbons stated that In the GIPA application dated 28 November 2016 (items 17 and 18) and the application dated 29 November 2016 (item 2), the applicant sought access to information relating to bonds and works information of all 99-year leasehold properties (bonds and works requests). In searching for information relevant to items the bonds and works requests, I identified two documents, being a 'sales summary' and a 'summary of works completion'. I believe that the information contained in the two documents contains personal information for the purposes of section 14 Table 3(a) of the GIPA Act and clause 1 of Schedule 4 to the GIPA Act. In order to release this information, I understand that under section 54 of the GIPA Act, if LAHC were to release information containing the personal information of a third party, that third party would need to be consulted. There are 32 third parties identifiable in the two documents. I believe that it would require a minimum of one hour to consult with each leaseholder under section 54 regarding the release of their personal information. I believe that this is a conservative estimate of the time necessary to conduct the required consultation. … Given the time already spent on the applications and the resources required as against those available, I believe that processing the bonds and works requests would require an unreasonable and substantial diversion of the resources of LAHC. 1. The Respondent's position is that clause 3(a) of the table to section 14 of the GIPA Act applies to this information. The information includes details of the individuals' bonds and works information, including required restoration work and timetable requirements. The Respondent submits that the personal information is not the names of the leaseholders; it is the bonds and works information of those individuals, who are identifiable by their address. Therefore, it is not relevant that the names of some individuals are already publicly available. 2. I agree with the Respondent that in these circumstances the information relating to bonds and work, as contained in the withheld material, is 'personal information'. I am satisfied that it is the private affairs of persons other than the Applicant and that the information would not otherwise be readily available to the public but for its disclosure to the Applicant. 3. I also agree with the Respondent that the information that was withheld pursuant to clause 3(a) in the November and December decisions does not contains personal information relating to the Applicant. 4. I am satisfied that disclosure of the information could reasonably be expected to reveal an individual's personal information. 5. The public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. I also agree that the nature of the personal information is relevant to the weight placed on it in the balancing test. In the present matter, the nature of the information is information relating to the private affairs of third parties' homes and the management of the homes and financial affairs. In the circumstances of these matters I agree that significant weight should be placed on this consideration against disclosure of the information. 6. I note the Applicant's arguments in favour of release of the information. It is necessary that I undertake a balancing process to determine whether the information should be released. I agree that release of the withheld information may encourage fairness and transparency in dealing with Crown assets and that this is a relevant consideration in favour of release. 7. However, in my view, greater weight should be given to the considerations against release that the Respondent has raised than to those raised by the Applicant. I agree that the information is not relevant to the Applicant's own personal information, and there is no public interest in disseminating the personal information of third parties to the Applicant. In the circumstances I agree with the Respondent that the withheld personal information should not be released. Unreasonable diversion of resources 1. I am satisfied that section 54 of the GIPA Act required consultation with third parties prior to release of the information relating to other leasehold owners' final payments, settlement figures, deposits and bonds paid. Ms Gibbons' estimate of the time involved for that consultation and the resources that are available to the Respondent to undertake that consultation has not been challenged and I accept that evidence. 2. In the circumstances I am satisfied that the necessary consultation would be an unreasonable diversion of the Respondent's resources. Clause 1(f) of the table to section 14 - prejudice the effective exercise of an agency's functions 1. Item 1(f) of the Table in section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to "prejudice the effective exercise by an agency of an agency's functions." 2. The Respondent submits that full disclosure of the redacted material of items 1 and 2 of the November Decision and items 5, 10, 11, 24, 26 and 27 of the December Decision could reasonably be expected to prejudice the effective exercise by the LAHC of its statutory functions. 3. I accept Ms Gibbons' evidence that the redacted information relates to budgetary and financial figures for funds used in acquiring, disposing of and utilising LAHC's land and housing assets. 4. I am satisfied that disclosure of the information would reveal this commercially valuable information and therefore it could reasonably be expected to prejudice the effective exercise by an agency of an agency's functions as it could prejudice the Respondent's negotiations. I accept that these are integral to its functions of acquiring, disposing of and utilising its land and housing assets. In my view, this public interest consideration against disclosure should be give significant weight. 5. In my view there are other avenues that are available that the Applicant can pursue should she have evidence of maladministration or corruption within the agency. In the circumstances it is my view that the considerations in favour of release should be given less weight than that given to the prejudice which the Respondent could suffer in its ability to effectively exercise its functions. 6. In the circumstances I agree with the respondent that the information should not be released. 7. As I have indicated above, I do not consider that the Respondent's initial response to the Applicant's access applications was adequate. However, it is my view that the ultimate outcome of combined decisions was the correct and preferable one. It follows that the decisions should be affirmed. Orders 1. The decisions under review are 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 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: 13 July 2017