Information Access Case Note: Walton v Eurobodalla Shire Council [2022] NSWCATAD 46

Read the decision here: Walton v Eurobodalla Shire Council [2022] NSWCATAD 46

Summary

On 10 November 2020, Mr Walton (the Applicant) made an application under the GIPA Act for access to information related to his water usage held by Eurobodalla Shire Council (the Respondent). Under the GIPA Act, a decision was required by 8 December 2020.

On 7 December 2020, the Respondent notified the Applicant that it had extended the decision period by a further 10 days (to 22 December 2020) because records were required to be retrieved from a records archive.

On 22 December 2020, the Applicant received the Notice of Decision which advised that the Respondent searched records, including electronic filing systems, email archives, and network drives. The Notice of Decision also imposed a processing charge ($360 less $30 paid as the application fee).

The Applicant applied to NCAT for an administrative review of the Respondent’s decision to impose the processing charge. The issues for determination by the Tribunal at hearing were:

1. was the decision made in time on the basis that the preconditions (concerning records retrieval) were met, in order to extend the decision-making time, and entitling the Respondent to impose the processing charge; and
2. waiver of the processing charge on the basis that the information was the personal information of the Applicant.

The Tribunal was not satisfied that the access application involved the requirement to retrieve records from a records archive. The Respondent’s evidence indicated that records were routinely archived after a period of only 90 days. The Tribunal found that irrespective of the retrieval process, the archive provision was not intended to operate in the manner relied on by the Respondent.

The Tribunal agreed with the Information Commissioner’s submission that the process of retrieval from a records archive must involve additional complexity/actions to enliven the discretion to extend the decision timeframe. The Tribunal found that the decision was made out of time.

Notwithstanding that the information sought contained a combination of personal and non-personal information, the Tribunal was satisfied that the information was the personal information of the Applicant. The Tribunal observed that arguably, all personal information held by agencies is mixed information and that the 12 hours of processing time relied upon by the Respondent did not permit the imposition of a processing charge (s. 67).

What you need to know

The manner in which an agency routinely saves records, such as emails, to its normal electronic record keeping system does not ordinarily enliven the discretion to extend the decision period by 10 days. The process of retrieval from a records archive must involve some difficulty because an agency is required to undertake an act of retrieval from a place where public or historical records are kept, for the discretion to be enlivened.

Furthermore, where an access application seeks a combination of personal and non-personal information, if the information continues to be information or opinion or about an individual whose identity is apparent or could reasonably be ascertained, the information is personal information for the purposes of the GIPA Act and the agency cannot impose any processing charge for the first 20 hours of processing the application.

Legislative background

GIPA Act

Section 3 object of the act

Section 57 required period for deciding application

Section 63 deemed refusal if application not decided within time

Section 80 which decisions are reviewable decisions

Section 104 right of appearance before NCAT

Freedom of Information Act 1989

Section 59B extension of 21 day period for dealing with applications

Review requirements and jurisdiction

Administrative Decisions Review Act 1997

Section 63 determination of administrative review by the Tribunal

Civil and Administrative Tribunal Act 2013

Section 38 procedure of Tribunal generally

Factual background

On 10 November 2020, the Applicant made an application under the GIPA Act for access to information related to his water usage held by the Respondent. In his application, the Applicant specified that the information related to, “ourselves as individuals and as a company N & D Walton Pty and as the Tern Inn Restaurant.” Under the GIPA Act, a decision was required by 8 December 2020.

The GIPA Act provides that an access application is to be determined within 20 working days, which can be extended up to 10 days if the agency is required to consult another party or retrieve archived records, or a maximum of 15 days where the agency has to both consult and retrieve archived records.

On 7 December 2020, the Respondent notified the Applicant that it had extended the decision period by a further 10 days because records were required to be retrieved from a records archive. The Respondent advised that the new decision due date was 22 December 2020.

On 22 December 2020, the Applicant received the Notice of Decision from the Respondent which noted that in making its decision the Respondent searched records, including electronic filing systems, email archives, and network drives. The Notice of Decision advised that the Respondent was imposing a processing charge ($360 less $30 paid as application fee).

On 11 January 2021, the Applicant applied to the Information Commissioner for an external review of the Respondent’s decision. In his request, the Applicant outlined his concerns about the imposition of the processing charge. The Applicant relied on two main grounds, being:

1. the information that he sought was in his view his own personal information; and
2. as the information sought was only six months old at the time of the application, such information should not have been archived, and as a result, there was no basis to extend the decision period by 10 working days.

If either of the above grounds were made out, the processing charge would no longer apply to the application.

The GIPA Act provides that if an agency does not decide an access application within time, the agency is deemed to have decided to refuse to deal with the application and any application fee paid by the applicant is to be refunded. The GIPA Act further provides that no processing charge can be imposed for dealing with an access application if the application was not decided within time (whether or not a late decision is made on the application). If the access application seeks personal information about the applicant (the applicant being an individual), the agency also cannot impose any processing charge for the first 20 hours of processing time for the application. The Respondent was levied for 12 hours processing time, the total being less than 20 hours.

On 12 May 2021, the Information Commissioner completed the external review which found that the Respondent’s decision to impose a processing charge was not justified because the Respondent did not decide the application within time. In conducting the review, the Information Commissioner considered the meaning of the term ‘record’ in the context of the words ‘records archive’ as they appear in the GIPA Act. The Information Commission considered that in practical circumstances, whereby ‘records are required to be retrieved from a records archive’, it meant that the agency needed to demonstrate (consistent with one of the definitions from NSW State Records), that it needed extra time in order to allow for the agency to visit a place which keeps historical records, and to retrieve information from said place. In the current matter, the Respondent was not required to physically visit another physical location to retrieve the records, as they were archived electronically. The Information Commissioner was therefore not satisfied that the retrieval of records from an email archive enlivened the discretion to extend the decision period by 10 days.

On 8 June 2021, the Applicant applied to NCAT for an administrative review of the decision to impose the processing charge.

The issues for determination by the Tribunal at hearing were:

1. was the decision made in time on the basis that the preconditions (concerning records retrieval) were met, in order to extend the decision-making time, and entitling the Respondent to impose the processing charge; and
2. waiver of the processing charge on the basis that the information was the personal information of the Applicant.

Information Commissioner’s submissions

The terms “records archive” and “archive” are not defined in the GIPA Act. The Information Commissioner and the Respondent both used the same definition of the term “archive” from the Macquarie Dictionary (online):

1. the non-current documents or records relating to the activities, rights, claims, treaties, constitutions, etc., of a family, corporation, community, or nation; or
2. a place where public records or other historical documents are kept; or
3. the agency or organisation responsible for collecting and storing such documents.

The Information Commissioner and the Respondent agreed that the second definition was relevant in these proceedings and requires the following steps:

1. records are required in relation to an access application;
2. the records are in a place where public or historical records are kept; and
3. an act of retrieval is necessary to obtain the records.

The Information Commissioner submitted that:

1. The precursor provision in the Freedom of Information 1989 (NSW) (FOI Act) to the discretion in the GIPA Act was introduced at a time when the storage and retrieval of documents electronically was not common.
2. It would be unreasonable if agencies were provided with extra time for any request which sought information stored on a digital server. The manner in which an agency routinely saves records, such as emails, to its normal electronic record keeping system does not ordinarily give rise to a special circumstance that would allow it to exercise the discretion to extend the decision period.
3. Digital archives generally have the benefit of being easily accessible and searchable, therefore facilitating the quick retrieval of archived records.
4. In addition to considering whether the context of retrieval of records extended beyond retrieving items from a physical location, the Tribunal should turn its mind to whether that ‘retrieval’ involved some degree of difficulty involving time, which would manifest as the need to make arrangements etc. regarding access.

Tribunal’s findings

Was the decision made in time on the basis that the preconditions (concerning records retrieval) were met, in order to extend the decision-making time, and entitling the Respondent to impose the processing charge?

The Tribunal noted that the Hansard in relation to the precursor provision in the FOI Act envisaged the physical retrieval from a records repository. Physical records would be identified, possibly from an index, and someone would have to physically access the records and assess their relevance (in the example of a GIPA Act application). This would clearly take time and resources in a number of steps. The officer would need to identify that records may exist within scope, then they would have to make the necessary arrangements to obtain physical access to those records, possibly ordering them from a repository and making arrangements for a time to attend and inspect. Alternatively, they might have been ordered in from the repository for inspection once delivered. Only at the time of inspection would it become clear whether the information was specifically relevant and responsive to the application. The Tribunal agreed with the Information Commissioner’s submission that the process of retrieval from a records archive must involve some difficulty because the agency was required to undertake an act of retrieval from a place where public or historical records are kept, for the discretion to be enlivened. The Tribunal also agreed with the Information Commissioner’s submission that given how recently these records were created (a maximum of eight months), it was concerning that the Respondent’s position was that it needed additional time to search its email archives to retrieve them.

The Tribunal disagreed with the Respondent’s submission that retrieval from a search engine, such as an email archive, was a factor contemplated by the Legislature when one has regard to the context of the GIPA Act as a whole and its objects.

The Tribunal also disagreed with the notion that once digital records were digitally archived by the Respondent, the discretion to extend the decision period was enlivened. The Respondent’s evidence indicated that records were routinely archived after a period of only 90 days. That would entail that in the majority of GIPA applications citizens would be seeking information from the Respondent that had been archived. The Tribunal found that irrespective of the retrieval process, this cannot be what the provision was intended to refer to.

The Tribunal determined that the Respondent did not establish that the actions in dealing with the Applicant’s access application involved the requirement to retrieve records from a records archive. Therefore, the decision period was not able to be extended beyond the 20 working days specified in the GIPA Act, noting that the Applicant was neither asked, nor consented to any extension. Accordingly, the Tribunal found that the decision was made out of time and the processing charge should not have been imposed.

Waiver of the processing charge on the basis that the information was the personal information of the Applicant

The Tribunal determined that the information requested by the Applicant met the criteria of personal information under the GIPA Act and the Information Commissioner’s Guideline 4. The Tribunal noted that while the information was to a minor extent mixed information, in that it was both personal and non-personal information, it did not detract from the fact that the information continued to be information or opinion or about an individual whose identity was apparent or could reasonably be ascertained. The Tribunal found that arguably, all personal information held by agencies is mixed information.

The Tribunal determined that as the Applicant had been levied for 12 hours processing time, the total being less than 20 hours, the Respondent was required to waive the processing charge.

Tribunal outcome

The Tribunal set aside the Respondent’s decision to impose a processing charge.