Case Note: Ireland v Central Coast Council [2022] NSWCATAD 366

Read the decision here: Ireland v Central Coast Council [2022] NSWCATAD 366

Summary

The NSW Civil and Administrative Tribunal (Tribunal) reviewed the decision by the Central Coast Council (“the Council”) that it did not hold the information sought by the access application made by Mr Ireland (“the Applicant”) under the Government Information (Public Access) Act 2009 (GIPA Act). The Applicant sought two “hard copy” documents relating to flood depth level reports about his property, being an engineer’s plan (‘item 1’) and engineering calculations “of the quoted Depths 0.2 and 2.1 m” (‘item 2’). The Council used an aerial software program to calculate the flood depths rather than traditional human calculations. This information was important to the Applicant who sought to develop his property. The Tribunal was satisfied that item 1 was not held. The Tribunal was not satisfied that the Council had provided sufficient evidence regarding their decision about item 2 and remitted the decision for reconsideration under the Administrative Decisions Review Act 1997 (ADR Act). In making its decision, the Tribunal was assisted by the Information Commissioner’s submissions, which identified the broad definition of “government information” under the GIPA Act and considerations about searches for information generated from software programs.

What you need to know

The decision confirms that the reference to “electronic process” in the statutory definition of “record” in cl. 10 of Schedule 4 to the GIPA Act may encompass more complex digital forms of information such as algorithms, software specifications and source code. Agencies are required to provide evidence to support why information in those forms is not held, and not merely describe the information.

Legislative background

GIPA Act

Section 3 objects
Section 4 (definitions)
Clause 10 of Schedule 4 (meaning of “record”)
Section 53 (searches)
Section 58(1)(b) information not held
Section 121 (contracts with private sector contractors)

Factual background

Applicant’s history of access applications

The Tribunal set out the long history of access applications by the Applicant to the Council, seeking information about the classification of his land. The Applicant was of the view that the Council was wrong in its assessment of flood levels of his property and sought to understand the Council’s decision to refuse the development application.

The access application

The descriptions of the information sought by the Applicant are relevant to this decision about information produced using software programs. They are set out below:

1. A hard copy of the following document is required. A copy of the Engineer’s plan, that was claimed by he [sic] Engineer to have been sent to the owner of No. 70, about 11 November 2019. According to the Engineer’s advice, two points, labelled 1 and 2, were selected and circled on his plan for clear location on the ground. The Engineer’s decision that No. 70 is High Hazard relied heavily on his advice to the owner, that the Depths in metres of the 1% AEP flood at each point 1 & 2 were 0.2 m and 2.1 m. [For High Hazard decision, refer Appendix L of the 2005 Manual], The Engineer further advised the Owner of the flood areas selected for his High Hazard decision was also identified on his plan. The document 1 will include this vital detail.

2. A hard copy of the following document(s): A hard copy of the document(s), of the Engineer’s calculations of the quoted Depths 0.2 and 2.1 m are required. As an assistance be advised that the decision referred to comply with the Manual requires (i) the calculation of the AHD height of the 1% AEP at the two points selected by the Engineer and (ii) a knowledge of the AHD level of the ground at the two points. Therefore to clearly understand the Engineer’s decision-making process the Engineer’s calculation document(s) are required. To further assist as to “what is required”, refer please to the attached copy of my letter the CEO dated 28 July 2020.

The reviewable decision

The Council’s decision of 2 September 2020 included that the information described at item 2 was not held. The Information Commissioner reviewed the decision and recommended the Council make a new decision by way of internal review, as it appeared further records or information responsive to the access application may be held.

The Council decided not to conduct an internal review and the Applicant sought review by the Tribunal of the Council’s decision. The Information Commissioner exercised her right to appear and be heard under s. 104(1) of the GIPA Act.

Tribunal findings

The Tribunal addressed the terms of the access application and synthesised items 1 and 2 into the following:

The application therefore sought access to:

a plan on which two points were numbered and circled and which had been sent to the owner of No.70 on about 11 November 2019; and
any documents containing the calculations by which the flood depth at the two points labelled 1 and 2 on the plan were arrived at.

The Tribunal explained the general principles applying to a decision that information is not held, confirming the following [20]-[24]:

the burden is on the Council to prove that the government information is not held
any concerns raised by the Applicant about the accuracy of the information provided, or criticism about the information provided, is outside the Tribunal’s jurisdiction and the Tribunal is not concerned with whether there are errors in the information or whether the information is reasonable: see Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 at [26]; and Shvetsova v University of New England [2015] NSWCATAD 49 at [33], and
whether an agency has complied with the search obligation imposed by
s. 53 of the GIPA Act is plainly a relevant factor in determining whether a decision that “information is not held” is the “correct and preferable decision”: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [43].

The Tribunal found that the Council had previously provided the Applicant with a depth map in the form of a printout of an image generated at a point of time from the database. The Tribunal concluded that no further information was held responsive to item 1 [39].

With respect to the information responsive to item 2 of the access application (‘engineering calculations’), the Tribunal referred to the submissions of the Information Commissioner, and in particular that the statutory definition of “record” includes “electronic process” which may encompass more complex digital forms of information such as algorithms, software specifications and source code [45]-[49].

The Tribunal found that it was not possible to conclude whether there is information that may be retrieved from the flood levels database in a form that is capable of being released because the agency had not relied on any evidence about the data stored in the database [45].

The Tribunal emphasised the statutory meaning of “government information held by an agency” in cl. 12 of Sch 4, particularly noting cl. 12(1)(b) which “includes within the ambit of government information, ‘information contained in a record held by a private sector entity to which the agency has an immediate right of access.’”

In considering that the flood depth levels calculated by a proprietary flooding database developed by a private engineering consultancy, the Tribunal found that it was not clear on the evidence before it whether:

there was a government contract within the meaning of s. 121 of the GIPA Act
the calculation that is undertaken by way of an algorithm is provided to the Council under the contract
ownership of the dataset rests with the Council, or
that the Council has an “immediate right of access” to the information under a contract with the developer of the database.

The Tribunal found that there was no evidence before it to establish whether the information sought was government information held by the agency at the time when the application was received [49]. The Tribunal concluded that “there are many unanswered questions about whether the Council holds information” and considered that the appropriate course was to remit the application to the Council for reconsideration [50].

Tribunal outcome

The Tribunal made orders to:

affirm the decision under review in respect of item 1
set aside the decision under review in respect of item 2, and
remit the matter for reconsideration by the Council.