Loussikian v University of Sydney [2018] NSWCATAD 140

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Loussikian v University of Sydney [2018] NSWCATAD 140 Hearing dates: On the papers Date of orders: 02 July 2018 Decision date: 02 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. The University of Sydney's decision to refuse to deal with the Applicant's revised access application on the grounds that dealing with it would require an unreasonable and substantial diversion of the University's resources under review is affirmed. Catchwords: Government information public access - refusal to deal with access application - unreasonable and substantial diversion of agency resources. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Freedom of Information Act 1989 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Cianfrano v Premier's Department [2006] NSWADT 137 Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130 Taylor v Destination NSW [2017] NSWCATAD 272 Category: Principal judgment Parties: Kylar Loussikian (Applicant) University of Sydney (Respondent) Representation: H Black (Agent for the Applicant)

Solicitors: Heesom Legal (Respondent)

C Mclnnes (Information Commissioner) File Number(s): 2017/00330246

REASONS FOR DECISION

Introduction 1. In an access application to the University of Sydney ("the University") under the Government Information (Public Access) Act 2009 (NSW) ("the GIPA Act") made on 13 July 2017 by Mr Kylar Loussikian sought the following information: Emails sent and received this last year through Tim Anderson's university email account relating to Bashar al-Assad, Syria and Palestine. 1. Following discussions with the University, the Applicant revised his application and ultimately limited the scope of the request to include emails sent and received by Dr Anderson in April 2017 that included the word 'Syria' ("the revised access application"). 2. On 14 September 2017 the University decided to refuse to deal with the revised application on the grounds that dealing with it would require an unreasonable and substantial diversion of the University's resources. 3. The parties have agreed that the matter should be determined on the basis of the material that has been filed, without the need for a hearing. Each has provided material in support of its case. Each party has filed written submissions. The University also relies on the affidavit of Mr Paul Macpherson, dated 6 February 2018. 4. The Information Commissioner has a right to appear and be heard in the review proceedings before the Tribunal pursuant to section 104(1) of the GIPA Act. The Information Commissioner has exercised her right to appear and Ms McInnes has provided written submissions on her behalf. As Ms McInnes noted, the Information Commissioner issued a fact sheet: "Substantial and unreasonable diversion of agency resources" in December 2016. That fact sheet offers some assistance to agencies by clarifying what may be considered an unreasonable and substantial diversion of resources. 5. The Applicant submits that the Tribunal should set aside the University's decision and direct the University to deal with the revised access application, pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"). Section 63(3)(d) provides: 3 DETERMINATION OF ADMINISTRATIVE REVIEW BY TRIBUNAL ... (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) …, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.