Posted on June 6, 2021 by 112

Is the GIPA application valid? The NCAT considers s41(1)(e) of the GIPA Act

The NSW Civil and Administrative Review Tribunal recently found an application made for information under the Government Information (Public Access) Act 2009 (GIPA Act) to be invalid because the application did not include sufficient information for the agency to identify the records being sought.

The terms of the application were found to be too generally expressed  to enable the agency to properly perform its functions under the GIPA Act.

The case is a reminder of the importance for agencies to consider whether an access application is invalid due to the scope being so wide as to be either impractical or insufficiently comprehensible.

Facts

In Jeray v Blue Mountains City Council [2021] NSWCATAD 67, Mr Jeray made an access application to the Blue Mountains City Council (Council) in the following terms:

‘All records concerning the North Face 100/Ultra Trail event. If there are many records please provide me with an index of records so that I may select the documents required.’

The original application was amended by substituting ‘a list’ for ‘an index’.

The Council decided that the application was invalid by reason of s41(1)(e) of the GIPA Act. On review by the Information and Privacy Commissioner and then separately by the Tribunal, the original decision of the Council was affirmed.

Section 41 of the GIPA Act

Applications or other requests for government information made under the Government Information (Public Access) Act 2009 (GIPA Act) must comply with the requirements set out in section 41.

One of those requirements is that the application ‘must include such information as is reasonably necessary to enable the government information applied for to be identified’ (s41(1)(e)).

Findings of NCAT

The council officer put on evidence that the officer would be unable to identify and locate ‘all‘ the records relating to the North Face 100/ Ultra Trail event without further information from Mr Jeray. The evidence indicated the following difficulties:

• the officer’s preliminary searches and discussions identified some 700 mentions of the event in the Council’s record management system,
• these records were identified using a search for the title word in documents and that it was highly likely that other records might not contain the event name in the title,
• the council’s involvement in the event indicates that there will be a number of operational areas covered including traffic, emergency, risk, crowd and development applications, and
• the event has been running for 12-13 years and the records are likely to be extensive.

The Tribunal referred to the Appeal Panel decision of Department of communities and Justice v Zonnevylle [2020] NSWCATAP 126 which held that (at [42]-[43]):

• the ordinary and grammatical meaning of the text of s 41(1)(e) is that, to be valid, an application for government information must include such information as is reasonably necessary to enable all the government information applied for to be identified,
• the Appeal Panel concluded from the overall context that the purpose of s41(1)(e) is to provide certainty as to when the ‘legally enforceable right’ to be provided with access to government information arises,
• that right arises when a person makes a valid access application: ss 4, 9 and 41. The requirement to identify the government information ensures that an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for.

Furthermore, the Tribunal referred to s53 of the GIPA Act which provides that an agency must conduct ‘reasonable searches’ and is not obliged to search to the extent it is ‘unreasonable’ or a substantial diversion of resources.

In light of the Zonnevylle decision and s53 of the GIPA Act, the Tribunal held at [18]:

• in order to provide certainty as to when the legally enforceable right to be provided with access to government information arises, a reasonable degree of specificity about the information sought is required,
• the approach to adopt is akin to that which is taken towards general discovery in civil litigation. Discovery is not a process intended to give a licence for ‘fishing expeditions’. Fishing expeditions can impose a substantial burden if the recipient cannot accurately determine the scope of the request,
• it all depends on the particular context and the wording of the notice but an application for general discovery of ‘all documents’ held by a party raises an issue of validity. Similarly, a GIPA application for ‘all records’ may not be valid due to a lack of reasonable specificity, depending on the circumstances.

The Tribunal ultimately found that:

…having regard to the evidence that the application originally lodged by the applicant for “all records” relating to the event does not contain a reasonable amount of information to enable the agency to perform its function under the GIPA Act. There is a vast amount of information which is potentially caught by the application, and the agency needs to be able to meet its obligations to the applicant to exercise his legal right to information. The original is too generally expressed to enable the agency to perform its function and therefore I find that it was justified in treating the application as invalid

Conclusion

The case is a reminder of the importance in carefully considering the scope of an application when considering whether an application is valid.

Requests for ‘all records’ or ‘all documents’, may not be reasonably specific enough for an application to be valid. Such a request could capture a vast amount of information, that may not be sought by the Applicant and involve the agency in carrying out searches that are not reasonable in the circumstances.

Where such terms are used, the scope must include terms that limit the search to a particular and clear subject matter and the search should be limited to a time period.

Consideration must turn to the description of the information sought and where the scope of the application is unclear,  enquiries should be made to the applicant to clarify or limit the scope . Only then can an application be considered to be valid and the searches for the information commence.

A copy of the decision is found here.

If you have any questions about the case or other GIPA Act related matters, please leave a comment or contact Carlo Zoppo, Partner on 8235 9705 or Elaine Yeo, Associate on 8235 9712.