Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Webb v Port Stephens Council [2020] NSWCATAD 91 Hearing dates: 4 & 5 October 2018 Date of orders: 24 March 2020 Decision date: 24 March 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: (1) The Tribunal affirms the Respondent's reviewable decisions. Catchwords: ADMINISTRATIVE LAW – Freedom of information — Access to information – GIPA – LPP – open access information - sufficiency of searches – reasonable basis for belief - reasonableness of searches Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Government Information (Public Access) Regulation 2009 Cases Cited: Amos v Central Coast Council [2018] NSWCATAD 101 Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52 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 Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Public Service Assn v Premier's Department [2002] NSWADT 277 Saggers v Environment Protection Authority [2014] NSWCATAD 37 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 Robinson v Commissioner of Police [2014] NSWCATAP 73 Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 Webb v Port Stephens Council [2017] NSWCATAD 348 Webb v Port Stephens Council [2018] NSWCATAP 224 Texts Cited: None cited Category: Principal judgment Parties: Telina Webb (Applicant) Port Stephens Council (Respondent) Representation: Solicitors: Applicant (Self represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/00119922 & 2018/00119930 Publication restriction: Paragraph 42 reasons for decision Background 1. This decision encompasses the Tribunal's review of two separate applications made by Telina Webb (the Applicant) regarding determinations made by Port Stephens Council (the Respondent). 2. By application filed 16 April 2018 the Applicant sought review of the Respondent's determination dated 6 April 2018 under the Government Information (Public Access) Act 2009 (GIPA Act) for the production of documents relating to Development Application 483/2011 and Land and Environment Court proceedings 2012/10678 (Application 119922). The Respondent's determination identified 9 documents falling within the scope of the application. Of those 9 documents: 1. 2 documents were released to the Applicant in full; 2. 1 document was released to the Applicant in part; and 3. access was refused to the remaining 6 documents on the basis that there was an overriding public interest against disclosure. 1. The Applicant also filed an additional application on 16 April 2018 seeking review of the Respondent's determination dated 23 February 2018 under the GIPA Act for the production of documents relating to Code of Conduct Reports on four separate current and former employees of the Respondent (Application 119930). The Respondent's determination identified 79 documents falling within the scope of the application. Of those 79 documents: 1. 55 documents were released in full to the Applicant; 2. 1 document was released in part to the Applicant; and 3. Access was refused to the remaining 23 documents. 1. The Applicant was not satisfied with the response that she received from the Respondent in response to her access applications and she sought external review in this Tribunal. While each of the matters is the subject of a separate application, the matters were listed for hearing together and there was significant overlap in the material placed before the Tribunal, so it is convenient to deal with both matters in a single decision. 2. The Applicant stated as grounds for each of Applications 119922 and 119930 that "Council has not provided the information as requested", attaching the relevant determination by the Respondent to the application. In each application, the Applicant identified that the Respondent's determination had not been subject to an internal review, because "the decision is exempted by law from internal review or objection". 3. On 3 July 2018, the Respondent, through its representative, provided to the Applicant full unredacted copies of all of the documents that had not previously been released to the Applicant as a result of its determination of 23 February 2018. According to the Respondent, this resolves the basis of Application 119930. 4. However, the Applicant presses Application 119930 because she believes that: 1. The Respondent conducted an "unlawful and unauthorised internal review", because: 1. She did not request or pay for an internal review; 2. There was a conflict of interest in having Tony Wickham, the Respondent's Governance Manager, conduct the internal review because the Applicant's request for information included documents relating to complaints and Code of Conduct investigations and reports about him; 3. The Respondent's conduct of the internal review was an attempt "to influence the Tribunal and obstruct my rightful access to established and legislated NCAT Administrative Review procedures" and "thwart a pending NCAT Hearing"; 1. The Respondent has not conducted sufficient searches to identify all the relevant information sought by her application. 1. In response to Application 119922 the Respondent also provided the Applicant with the unredacted version of the document referred to at 2(2) above, and Document 5 of the 6 documents referred to at 2(3) above. The Respondent claimed client legal privilege (LPP) as a basis for there being an overriding presumption against disclosure pursuant to Schedule 1 cl 5(1) of the GIPA Act over Documents 1, 2, 3, 4 and 6 referred to at 2(3) above. 2. The oral hearing of these proceedings took two days, which is relatively unusual for an application under the GIPA Act, and continued in written submissions after the oral hearing. The oral and written evidence and submissions were lengthy and voluminous, encompassing a history of mutual animosity and distrust between the parties arising out numerous complaints, allegations and accusations. This history originated from the Respondent's management of a development application which she and her partner had made in 2011, concerning a back yard privacy screen on the property they owned at that time, but had developed over the years to encompass a pursuit of the identity of those individuals who had objected to the privacy screen, those in Council who she believed had impeded her quest for this information, and complaints about the management of her access applications by the Respondent. The Issues for determination 1. The Applicant does not accept that the Respondent has located all the material that it holds that falls within the scope of her access applications. She also does not accept that the documents withheld by the Respondent as LPP are properly withheld. The Applicant's complaints of conduct by the Respondent and its officers in the management of her access applications, including allegations of conflict of interest and attempts to undermine or "thwart" the appropriate operation of the GIPA Act and the Tribunal's review, are not relevant to these proceedings. The Tribunal has the power to review the Respondent's reviewable decisions, being the decisions of 16 April 2018, to determine whether those reviewable decisions were the correct and preferable decisions. 2. The questions for determination with respect to both Application 119922 and 119930 are therefore whether the searches that the Respondent has undertaken were sufficient. In relation to Application 119922, there is an additional issue for determination as to whether the Respondent's withholding of 6 documents on the basis of LPP was correct pursuant to the GIPA Act. Applicable legislation 1. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). 2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59]. 3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3). 4. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. The objects of the GIPA 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 section 4 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 (section 5). In accordance with section 9(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 of 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: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. 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: 1. Agencies must exercise their functions so as to promote the object of this Act. 2. Agencies must have regard to any relevant guidelines issued by the Information Commissioner. 3. 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. 4. The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. 5. 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 105 of the GIPA Act provides that the onus is on the Respondent agency to justify its decision. LPP 1. Section 14(1) of the GIPA Act provides that: 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. 1. Clause 5 of Schedule 1 to the GIPA Act provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 1. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation. In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. Determining whether information is subject to LPP relies on the dominant purpose and sole purpose tests, as discussed in Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 and approved in Webb v Port Stephens Council [2017] NSWCATAD 348. The essential elements of client legal privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the communication or document; and 3. the communication or document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation. 1. Client legal privilege is capable of attaching to communications between an in-house legal advisor and his or her employer provided that the legal advisor is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Saggers v Environment Protection Authority [2014] NSWCATAD 37; Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 96. Sufficiency of search 1. In Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 at paragraph [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 decision of Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. In Hemeon at paragraph [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 paragraph [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. It is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Camilleri at paragraph [13] citing Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 where O'Connor DCJ stated at paragraph [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. In determining whether reasonable searches have been conducted, relevant considerations include "the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. 2. Describing its role in Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52, the tribunal said, "All that the tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches....". Application 119922 1. The original Access Application lodged by the Applicant on 1 March 2018 sought access to: 1. a full and unedited copy of the notification from either Harris Wheeler's Lisa Gowing (AKA Felicity Connors) and/or Lisa Marshall to the Land and Environment Court for Matter: 2012/10678, advising Council's receipt of the 82a request for Review of Determination and payment of 26th June 2012; 2. a full and unedited copy of all communications within Council on the subject of Paul Minett calling the DA No: 483 of 2011 to a Council meeting; 3. a full and unedited copy of all communications with Council on the subject of Ken Jordan calling the DA No: 483 of 2011 to a Council meeting; and 4. a full and unedited copy of all communications with Council on the subject of John Prescott the DA No: 483 of 2011 to a Council meeting. 1. The Applicant amended the application on 20 March 2018 to clarify the scope but the substance of the requests remained the same. The scope was clarified in relation to items 2 and 3 to refer to communications between June 2011 and December 2012, and in relation to item 4 to refer to communications between July 2012 and December 2012. 2. Tony Wickham gave a short statement in Application 119922 to explain the background to the legal proceedings that were on foot between the Applicant and the Respondent. Holly Jamadar provided a statement in Application 119922 which provided details of the searches undertaken and the decision making process with respect to the Respondent's determination to claim LPP. 3. As referred to above at [2], the Respondent located 9 documents which fell within the access request, and as referred to at [8], the Respondent claimed LPP over Documents 1, 2, 3, 4, and 6. LPP 1. The Respondent submitted that disclosure of the remaining 5 documents would reveal confidential communication between an external lawyer, the Respondent's internal lawyer and the Respondent's officers regarding the giving of legal advice. In its determination, the Respondent considered whether it should waive the privilege and determined not to waive their claim. As Schedule 1 Clause 5(3) of the GIPA Act provides, the determination not to waive privilege is not reviewable. 2. The Applicant submitted that: It is clear from the case law that legal professional privilege should not be used to fill any gaps in evidence in order to prevent legitimate access to documents, moreso in this instance where the information requested is Open Access and mandated for release. Legal professional privilege is not the "go to" clause of the GIPA Act when the claims of a risk of harm or disclosing of personal information should the information be released, are conceded not likely to succeed. Council has claimed legal professional privilege on some of the information requested, yet these documents relate specifically to the Development Application and 82a Request for Review processes, and not to the Order for Full Demolition before the Land and Environment Court. The DA No: 483 of 2011 was still within the development application consideration process at each of the dates the withheld information was created, and I reiterate not all avenues of review with Port Stephens Council had been fully availed. By the time of the issuing of the Order for Full Demolition of 06th June 2012, my husband and I were continuing to petition Council to access its established and legislated review processes. We were not petitioning the Court for any review of Council Internal Processes. The DA No: 483 of 2011 / 82a Request for Review and the Appeal against the Order for Full Demolition were two completely separate issues and processes. In this regard, the claim for legal professional privilege is not made out. 1. The Applicant's submissions seem to indicate that she believes the information sought should be "open access", and therefore not subject to a claim for LPP. 2. Section 18 of the GIPA Act details what constitutes open access information. The section goes on to specify several kinds of information which are not relevant to this appeal and 'such other government information as may be prescribed by the regulations as open access information'. Clause 3 of schedule 1 of the Government Information (Public Access) Regulation 2009 (GIPA Regulation) specifies in relation to development applications in part that: '(1) Information contained in the following records (whenever created) is prescribed as open access information: (a) development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and any associated documents received in relation to a proposed development including the following: (i) home warranty insurance documents, (ii) construction certificates, (iii) occupation certificates, (iv) structural certification documents, (v) town planner reports, (vi) submissions received on development applications, (vii) heritage consultant reports, (viii) tree inspection consultant reports, (ix) acoustics consultant reports, (x) land contamination consultant reports, (b) records of decisions on development applications (including decisions made on appeal), (c) a record that describes the general nature of the documents that the local authority decides are excluded from the operation of this clause by subclause (2).' 1. I agree with the Respondent's submission that none of the information the subject of the access application fall within any of the categories identified in the GIPA Regulation as "open access" information. The communications within Council about a DA sought as items 2 to 4 of the access application do not fall within the parameter of "associated documents" or "submissions", merely because they refer to a DA. Item 1 of the access application is irrelevant. 2. I also agree with the Respondent's submission that even if the information sought was "open access", it would be subject to the overriding nature of claims for LPP subject to Schedule 1 Clause 5 of the GIPA Act. The public interest against disclosure of documents subject to claims for LPP overrides the open access provisions of the GIPA Act and Regulation. 3. The Tribunal was provided with the subject withheld documents and heard evidence and submissions relating to the Respondent's claims of LPP in a confidential session pursuant to s 107 of the GIPA Act. 4. [NOT FOR PUBLICATION] 5. Documents 1, 2, 3, 4 and 6 are clearly communications caught by the definition of LPP: 1. Document 1 is an email string of correspondence between the Respondent, its internal lawyer and its external legal provider for the purpose of obtaining legal advice. 2. Document 2 is email string of correspondence between the Respondent and Harris Wheeler Lawyers, and between the Respondent's in-house lawyer and staff relating to the provision of legal advice, and attaches the legal advice. 3. Document 3 is an email chain of correspondence between the Respondent's in-house lawyer and Harris Wheeler Lawyers requesting further legal advice. 4. Document 4 is an email chain of correspondence between the Respondent's in-house lawyers discussing the legal advice for the purpose of requesting further legal advice. 5. Document 6 is an email chain of correspondence between the Respondent's in-house lawyers discussing the legal advice provided by the external lawyers. 1. On the basis that I have found that the five remaining documents fall within the definition of LPP I agree with the Respondent's determination to withhold them from the Applicant as a result of the conclusive presumption against disclosure provided in Schedule 1, Clause 5 of the GIPA Act. Sufficient searches 1. The Applicant submits that the Respondent has not carried out adequate searches for the material the subject of Application 119922. 2. As submitted by the Respondent, the question of whether it has carried out all reasonable searches is not a reviewable decision under s 80 of the GIPA Act. However the Tribunal does have power to review a decision that information is not held by an agency. This may extend to an implicit decision of a government agency that it does not hold information beyond that which has been provided: Robinson v Commissioner of Police [2014] NSWCATAP 73, at [8]; Amos v Central Coast Council [2018] NSWCATAD 101 at [33]. 3. In relation to an implied decision that information is not held by the Respondent, there are two questions for the Tribunal to consider: 1. whether there are reasonable grounds to believe that the documents exist and are documents of the Respondent; and 2. if so, whether the search efforts to locate the documents had been reasonable in all circumstances; Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. 1. Where there is relevant and credible material presented in support of the Respondent's implied decision, the burden, in practical terms, falls on the Applicant to challenge the Respondent's case: Webb v Port Stephens Council [2018] NSWCATAP 224, at [36]. 2. In this regard, and in relation to the first question, the Applicant must put some credible material or submissions before the Tribunal to establish that there is an arguable case concerning the existence of the documents. It is insufficient for the Applicant to make assertions that further documents exist on the basis of her distrust of the Respondent: Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195, at [69]. 3. The Applicant submitted the following as a basis for her assertions that there were additional documents in existence which were not produced by the Respondent: 1. The Respondent's statement in its Notice of Decision at Page 6 that "Council could not locate any records that provided any communication with John Prescott relating to your DA being called to Council" was false, on the basis that: A copy of (2) two letters and attachments from John Prescott to Lisa Gowing (AKA Felicity Connors) addressing the subject of Calling the DA to Council are provided herein. Refer to Attachment 20 1. The Respondent did not indicate what searches were conducted to locate "a notification letter addressed to the Land and Environment Court" which could not be located. 1. In relation to the Applicant's submission expressed above at 50(1) the Respondent submitted that the Applicant's reliance upon two documents from John Prescott as supposed proof of the existence of further documents was ill founded because those documents were not sent to Respondent. Having reviewed those documents referred to by the Applicant and the Respondent, I agree with the Respondent. They are evidence that John Prescott communicated with Lisa Gowing of Harris Wheeler Lawyers about the Applicant and her partner's desire to have an "amended s. 82A application be determined at a Council Meeting". There is no reference to any communication between John Prescott and the Respondent directly. Accordingly the Applicant has failed to provide reasonable grounds for a belief that such documents exist and are held by the Respondent. 2. I reject the Applicant's submission that the Respondent did not indicate in its reviewable decision what searches were conducted by it to locate the information sought by item 1 of the access application, being: a full and unedited copy of the notification from either Harris Wheeler's Lisa Gowing (AKA Felicity Connors) and/or Lisa Marshall to the Land and Environment Court for Matter: 2012/10678, advising Council's receipt of the 82a request for Review of Determination and payment of 26th June 2012 1. The reviewable decision contains the following detail of the searches conducted by Holly Jamadar, Governance Officer- Right to Information Officer: 3.1. Searches within Council's Electronic Management System EDRMS whereby relevant keyword searches were performed which include but are not limited to: *Sapphire* *Call to Council*, *Cr Jordan*, *Paul Minett*, *John Prescott* , *2012 / 10678* , 3.2. Internal consultation with key stakeholder staff members to ascertain if all relevant information was considered. Please note that this consultation with Council staff was not third party consultation as defined under the GIPA Act. 3.3. Searches within the Electronic property file for DA 16-2011-483-1". All information was considered for this request. 3.4. Searches within the Electronic LEC file to establish what information was generated and saved for the LEC matter in 2012. 3.5. Searches within the Internal Legal Advice folder to ascertain that no additional information was held on the file that fell into the scope of this request. 1. Ms Jamadar provided a written statement filed 15 August 2018 which provided further detail of her searches, and gave extensive oral evidence at hearing which supported her determination, involving searches conducted on and from 27 March 2018 by her and in collaboration with the Respondent's legal team. In oral evidence Ms Jamadar explained in the detail her methodology for conducted the electronic searches and the scope and limitations of the Respondent's record keeping systems. She explained that she spoke to the legal services manager to confirm whether LPP would be waived on the relevant documents, and understood the nature of LPP and its application despite not being qualified as a lawyer. She was cross-examined by the Applicant on her methodology but was also questioned on matters with which the Applicant disagreed, such as the process for "call to council" and the definition of "open access" under the GIPA Act. 2. Ms Jamadar gave evidence to the Tribunal that there was no functionality in the EDRMS to search within documents, only within the documents' titles or notes sections. In re-examination she explained that to search manually within documents in EDRMS for keywords would "be a significant task". 3. At hearing the Applicant based her belief that insufficient searches were conducted, on Ms Jamadar's lack of knowledge of the GIPA Act and her failure to "properly consider former GIPA applications", and her consultation with the Respondent's legal services team. In submissions on this issue she complained of bias by the Respondent against her. 4. On the evidence and submissions before me I find no reasonable basis for the Applicant's belief that there existed additional documents or information held by the Respondent which were captured by the access application. The Applicant's evidence and submissions indicate that it is her general distrust of the Respondent that forms the basis for her belief that there are additional documents or information captured by the access application in existence. This is insufficient to satisfy her onus: Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195, at [69]. On my assessment of the evidence the strength of the applicant's suspicions is extremely low and I am satisfied that the Respondent's endeavours to satisfy its obligations were reasonable. There is insufficient basis to direct the Respondent to conduct further searches in the circumstances 5. The evidence and submissions of the Respondent demonstrates that they have complied with their obligations to conduct reasonable searches for the information requested and satisfied their onus to support their decision pursuant to s105 of the GIPA Act. Application 119930 1. The access application dated 31 January 2018 sought the following: All documents relating to Code of Conduct Reports for: 1 Courtney Coburn, ex-Governance Officer; 2 Tony Wickham, Governance Manager/ Right to Information Officer; 3 Lisa Marshall, Head of Legal Services 4 Wayne Wallis, General Manager. The documents are inclusive of internal/external correspondence (including individual statements), audits or reports relating to the dismissal of the complaints, full disclosure of who performed each of the internal audits (including what the indications and conclusions of those audits were), and Council's confirmation of all parties having access to the complaints, in particular how it managed the Code of Conduct report pertaining to Tony Wickham. 1. As referred to above at [3] and [6], all the documents captured by the access application were ultimately released by the Respondent to the Applicant. Nevertheless the Applicant pressed Application 119930 because: 1. The Respondent had conducted an unlawful internal review; and 2. The Respondent had not conducted sufficient searches for the information sought. 1. Whether or not the Respondent conducted itself appropriately in processing the Applicant's Application is not within the Tribunal's powers of review in these proceedings. In any event, it is common for additional information and documents to be released during the case management process for GIPA Act applications in the Tribunal, in keeping with the GIPA Act's objects pursuant to s3 and the Tribunal's objects under s 3(d) of the CAT Act to "resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". The Respondent's reconsideration of its decision on 3 July 2018 and subsequent release of all previously withheld documents in relation to Application 119930 is appropriate in that context. 2. The remaining issue is therefore whether the Respondent conducted sufficient searches in response to the access application, the Tribunal's determination of which is subject to the same considerations outlined in paragraphs 45 to 49 above. 3. In addition to her own evidence and submissions, the Applicant relied on the evidence of Geoffrey Dingle and the cross examination of Tony Wickham to support her belief that there were additional documents caught by the access application which had not been referred to by the Respondent in their determination. 4. Tony Wickham did not provide a statement in Application 119930 as he was one of the Council officers that the Applicant had lodged a complaint about, which formed part of the request for the information sought in the access application. However he was asked questions by the Applicant in cross examination and gave evidence about the manner in which the code of conduct complaints were generally dealt with at Council. He gave uncontested evidence that: 1. The Council "ProMapp" document (tendered by the Applicant) was a guideline document providing guidance to Council staff as to how code of conduct complaints against staff should be dealt with; 2. the ProMapp guidelines excludes complaints against Councillors and the General Manager; 3. the receipt of the code of conduct complaint involves the creation of an acknowledgement letter being sent to the complainant and the creation of a file; 4. no additional documents, save for an acknowledgement letter, are created as this part of the process; 5. as the complaints coordinator he is involved in the General Manager's Advisory Panel Meetings (unless he is the subject of a complaint) that involves a consideration of the complaint and the creation of minutes of the meeting; 6. the General Manager is spoken to and provides verbal directions about how the matter is to be dealt with; 7. where it is decided that no investigation will take place, a letter is created and sent to the complainant to finalise the matter; 8. Council periodically engages consultants to conduct audits; 9. the audits are not a review of a particular matter but random sampling of files to see if key points from the auditing process have been met; 10. log of actions is created and the audit is not to check to see if all steps have been followed in a particular complaint. 1. Geoff Dingle, a former councillor of the Respondent, provided two statements to the Tribunal which were admitted over objection as to relevance, on the basis that the Tribunal would determine their weight. The Applicant submitted that they were relevant because Mr Dingle had been a subject of the Respondent's Code of Conduct processes, and had also been a complainant, so could provide useful evidence to enlighten the Tribunal as to what those processes were, for the purpose of identifying what information and documents should be in existence in response to the Applicant's access application. On my review of those statements and having heard Mr Dingle's oral evidence at hearing, I consider Mr Dingle's evidence to be of minimal weight. Mr Dingle's written statements were prepared with the assistance of the Applicant as he "did not understand legal procedures". His evidence was that the Code of Conduct was the same process for council staff, councillors and members of the public. However he agreed that whilst the Code of Conduct was the same, "councillors were dealt with differently". 2. The Respondent referred to the Code of Conduct Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW (March 2013) (Procedures) which were put in evidence by the Applicant, which made clear that, in regard to the Code of Conduct matters involving Tony Wickham, Lisa Marshall, and Courtney Coburn, the steps to be taken in relation to a complaint against a Councillor differed from those required to be taken for complaints against Council officers. Mr Dingle's admission and the evidence of the Code of Conduct documents before the Tribunal did not support Mr Dingle's assertion that the Code of Conduct "was the same process" irrespective of its subject. 3. In any event, the Respondent has produced to the Applicant the minutes of meetings in which the relevant complaints were discussed (see pages 178, 271, 378 to 379, 382 of the Bundle of Further Documents released to the Applicant), detailed emails showing the enquiries made (see pages 1 to 5 of the Bundle of Further Documents released to the Applicant), and the letters of determination sent to the Applicant (see Tab 10, 11, 69, 76, 77, and 78 of the Bundle of Documents Initially Released). Those documents make clear that the complaints were considered by the General Manager and closed by way of letter to the Applicant. There is nothing in the documents to suggest that the matters were re-opened by Council at a later date. 4. Mr Dingle's evidence under cross examination was that, despite having lodged Code of Conduct complaints himself, "none of them were acted on. They wrote back and said they're closed. Nothing else. No further correspondence. No further documents. No Notice of Investigation. Only one proceeded to investigation". This evidence is consistent with the Respondent's position, so could not provide a reasonable basis for the Applicant's belief that there were additional documents undiscovered by the Respondent's allegedly insufficient searches. 5. Mr Dingle's evidence is also irrelevant to the Code of Conduct complaint against the General Manager, Mr Wallis. The evidence demonstrates that the Respondent refused to accept that complaint under cl 4.4 of the Procedures, such that there would be no further investigation similar to that put forward by Mr Dingle. 6. I accept the Respondent's submission in the absence of submissions or evidence to the contrary that the audit documents relied upon by the Applicant also do not suggest that there are further documents within the possession of Council, because the statistics contained within the audit reflect the fact that not every complaint will proceed to the investigation phase, and therefore in most cases there will be no reason to bring the documents one would expect to be generated in such phases into existence. This is supported by the evidence of Mr Dingle and Mr Wickham. 7. Accordingly, none of the material relied upon by the Applicant presents even an arguable case that further documents exist. There is no other evidence provided by the Applicant which would support her belief going beyond suspicion in relation to an agency with which she holds a pervasive distrust. In my view the Applicant's evidence and submissions do not support a reasonable basis for her believing there were additional documents to those located and released by the Respondent. 8. The Respondent's evidence of the searches and investigations conducted by its officers in response to this access application was similarly comprehensive to those conducted in Application 119922 and demonstrated that even if the Applicant held a reasonable belief that additional documents existed, all reasonable searches had been conducted in compliance with the Respondent's obligations under s 53(1) of the GIPA Act. 9. On review of the documents released in response to Application 119930, I accept the Respondent's submission that there is nothing within those documents that suggests that there may be other documents in the Respondent's possession which fall within the scope of the GIPA Application. 10. The Respondent relied on the evidence of Ms Jamadar and Mr Wickham. Ms Jamadar's oral evidence was consistent with her written statements. She was required to gain special access approval to review the files for the purposes of this application because of the confidential nature and storage of Code of Conduct documents. The Respondent's Code of Conduct files were not labelled so as to identify the names of the person the subject of complaints, so Ms Jamadar and the Information Services Coordinator manually searched each and every container that contained code of conduct complaints to ensure that she had examined all of the relevant containers and then examined each documents captured within each container. Whilst she did not undertake her own audit of the files to ensure that each investigation and file contained everything that could possibly be contained within a code of conduct investigation, her evidence that she referred to the relevant policy for Code of Conduct complaints to ensure that the containers' contents were correct supports my finding that she used the resources that were reasonably available to her to carry out a detailed examination for any document that contained the information sought by the Applicant. 11. Ms Jamadar was cross examined at length about other documents that the Applicant suspected might possibly exist, however such cross examination demonstrated the fact that the Applicant could not point to a document or category of document that she believed was missing. I agree with the Respondent's submission that Ms Jamadar "gave evidence in a clear decisive and consistent manner, demonstrated a sound understanding of the relevant rules and was in no way shaken by the long cross examination by the Applicant". She made appropriate admissions and concessions in her evidence and demonstrated calmness and clarity under intense questioning by the Applicant. 12. Ms Jamadar's evidence was that there "shouldn't be" documents outside of the TRIM system, for instance kept only in staff personal drives, because the Respondent's systems and processes require the documents to be saved into TRIM. When questioned specifically about whether she had searched the "F:drive", she stated that she didn't search the "F: drive" for potential documents falling within the access application because it contained staff personal drives. She explained that the F:Drive was openly available to all Council staff and the Respondent's usual procedures required confidential documents of the type sought by the access application to be restricted, accessed and stored in TRIM. 13. I accept Ms Jamadar's evidence and the Respondent's submission that it would be highly unlikely that the F:Drive would contain documents falling within the parameters of the access application. I consider it even more unlikely that the F:Drive would contain any documents falling within the access application's scope which were in addition to those already provided to the Applicant. I find therefore that although the Applicant was able to identify a location in the Respondent's electronic files which was not searched by Ms Jamadar for documents to answer the access application, this did not equate to a failure by the Respondent to conduct reasonable searches in accordance with s 53(1) of the GIPA Act. On the evidence before me, I accept that all reasonable searches for the information were conducted by Ms Jamadar. Conclusion 1. I have found in both Applications 119922 and 119930 that the Applicant did not have a reasonable basis for her beliefs that the Respondent held additional documents to those identified and released to her, and that the Respondent conducted reasonable searches for the information sought by her access applications pursuant to their obligations under the GIPA Act. I have also agreed with the Respondent's determination that the 5 documents withheld from the Applicant in Application 119922 were subject to appropriate claims for LPP and therefore was a conclusive overriding presumption against their disclosure pursuant to s 14(1) and Schedule 1 Clause 5(1) of the GIPA Act. Accordingly, the correct and preferable decision is to affirm the Respondent's reviewable decisions. Orders 1. The Tribunal affirms the Respondent's reviewable decisions. ********** 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: 25 March 2020