Posted on April 15, 2021 by Anzer Khan and Carlo Zoppo

Reasonable searches in GIPA Act applications

A decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (Tribunal), changed the way that the Tribunal considers applications for review under the Government Information (Public Access) Act 2009 (GIPA Act) where an agency finds that information is not held. In this case the Appeal Panel held that it is no longer the law that the Applicant has a practical onus to establish reasonable grounds that requested documents exist which have not been produced. The burden lies from the start to the finish with the government agency to establish that its decision that information is not held is justified.

Facts

The Appellant, Ms Wojciechowska, made an access application under the GIPA Act to the Commissioner of Police, NSW Police Force (Commissioner), seeking amongst other things, “guidelines used by the NSW Police Force concerning the use of terms ‘person of interest’ and ‘victim’ in entries made in COPS” (Application). COPS is an electronic database used by the NSW Police Force (NSWPF), which in part, records information about incidents or events that have required or may require Police action.

In response to the Application, on 17 June 2019, a delegate of the Commissioner identified a single document, a 2010 version of the COPS User Guide (the Guide) as falling within the scope of the Application. The delegate decided to refuse to grant Ms Wojciechowska access to the Guide because of “an overriding public interest against disclosure” under s 58(1)(d) of the GIPA Act and declared that apart from the Guide, the remaining information sought in the Application was “information not held” by the NSWPF (s 58(1)(b)) (Original Decision).

Dissatisfied with the Original Decision, Ms Wojciechowska applied to the Tribunal seeking review of the Commissioner’s decision under s 100(1) of the GIPA Act. After the application was lodged by Ms Wojciechowska, a delegate of the Commissioner reversed the Original Decision and granted Ms Wojciechowska access to the Guide (Supplementary Decision).

Ms Wojciechowska’s application to the Tribunal raised the following key issues:

  1. whether the Commissioner’s delegate had complied with the obligation imposed under s 53 of the GIPA Act to undertake ‘reasonable searches’ for the requested information; and
  2. whether the 2010 version of the Guide is the most recent version of that guide.

The Tribunal held, at first instance, that Ms Wojciechowska had not satisfied its practical onus that reasonable grounds existed that the requested information was held by the agency. In making this decision, the Tribunal applied long standing authority that in the context of a review the “applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances”.

Ms Wojciechowska appealed the Tribunal’s decision at first instance. Central to Ms Wojciechowska’s contentions was that ss 53 and 105 of the GIPA Act were misapplied by the Tribunal.

The Legislative Framework

Section 53 of the GIPA Act

Section 53 of the GIPA Act imposes an obligation requiring an agency to:

  • undertake “such reasonable searches as may be necessary to find” the requested information “using the most efficient means reasonably available to the agency”: s53(2); and
  • undertake searches using “any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically”: s53(3).

The obligation to search does not extend to searches that would require an “unreasonable and substantial diversion of the agency’s resources”: s53(4).

Section 105 of the GIPA Act

Section 105(1) of the GIPA Act provides that the burden of establishing that a decision is justified lies on the agency.

Existing Caselaw

A common issue raised by applicants is that a decision made by an agency is deficient as not all documents held by the agency have been identified in a decision or that a decision is made that information is not held when in fact the information is held . A long line of decisions of the Tribunal have held that when reviewing a decision that an agency does not hold information, that the Tribunal considers the following questions:

  1. are there reasonable grounds to believe that the requested information exists and is held by the agency, and if so,
  2. whether the search efforts carried out by the agency to locate the information were reasonable in all circumstances of the case.

[see paragraphs 30-33 of Appeal Panel decision]

Appeal Panel Decision

In upholding the appeal in part, the Appeal Panel set aside the Tribunal’s decision and ordered a new hearing, deciding that the Tribunal at first instance erred in its application of ss 53 and 105 of the GIPA Act.

The Appeal Panel held (in the context of a review before the Tribunal) that s53 of the GIPA Act should not be interpreted to mean that the “obligation to undertake ‘reasonable searches’ is enlivened only where the access applicant establishes to the satisfaction of the agency … that ‘there are reasonable grounds to believe that the requested information exists and is held by the agency’”. In elaborating, the Appeal Panel found that generally the agency will be best positioned to assess whether any requested information is held by the agency, not the applicant, and that to require “an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s53”.

Whether an agency has carried out a reasonable search is not a reviewable decision for the Tribunal. However the nature and extent of the searches required by s53 to be undertaken are relevant to the question of whether there are reasonable grounds to consider that the information requested in the access application exists.

Accordingly, the Appeal Panel held that the application of the two-step test is wrong as it conflicts with the legislative requirement under s 105 of the GIPA Act, which places the burden on the agency to prove that the decision that the government information applied for is not held, is the correct and preferable decision.

The Appeal Panel conveniently summarised at [36] the obligations on an agency in terms of reasonable searches under s53:

(1) Section 53 of the GIPA Act imposes an obligation on an agency to undertake “such reasonable searches as may be necessary to find” the requested information: s 53(2). ;

(2) That obligation is limited to “information held by the agency when the [access] application is received”: s 53(1). ;

(3) The search must be conducted “using the most efficient means reasonably available to the agency”: s 53(2). ;

(4) The obligation extends to searches using “any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically”: s 53(3)

(5) The obligation to search does not extend to searches that would require a “substantial and unreasonable diversion of the agency’s resources”

The possible existence of further information does not mean that an agency’s implied decision that it does not hold other information is not justified as an agency is only required to carry out reasonable searches and is not required to carry out searches that would require a substantial and unreasonable diversion of resources.

Please find a link to the decision here.

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