Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114

Read the full decision on NSW Caselaw Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114

When an applicant has provided identifiers or search terms in an access application or in later discussions with the agency, those search terms or identifiers inform and assist the agency in conducting searches. The Tribunal observed inconsistences in the Respondent’s reasons for decision.

What you need to know

The Applicant claimed that:

• the searches conducted by the Respondent were inadequate and/or unreasonable, and
• the Respondent had failed to exercise good faith.

The Tribunal, in hearing the matter, examined the Respondent’s decision. The Tribunal set aside the Respondent’s decision and remitted the matter for reconsideration with specific orders in respect of the searches.

The Tribunal identified the approach it was to take was set out in Camilleri v Commissioner of Police 2012 NSWADT 5 when an Applicant asserts that searches conducted have not been reasonable [54]. The Tribunal is to approach the question as:

1. To first ask whether there are reasonable grounds to believe that the requested information exists and is information of the agency
2. If the answer to (1) is ‘yes’ the Tribunal must ask itself whether the efforts made by the agency to locate the information have been reasonable in the circumstances of the case.                               

The Applicant must satisfy the Tribunal that there are reasonable grounds to believe more information exists (Stanley v Roads and Maritime Services [2014] NSWCATAD 123 at 57) and, if so, then the onus shifts to the Respondent to show the searches were reasonable in the circumstances. Miriani v Commissioner of Police [2005] NSWADT 187 at [30] was applied by the Tribunal in determining the reasonableness of the searches conducted by the agency [42].

Does more information exist?

The Tribunal found that the Applicant had a reasonable basis for believing that further material falling within the scope of his access application had not been supplied as a result of the limitations placed on the searches by those directing them [51]. The question then before the Tribunal was whether the Respondent’s conclusion that it did not hold information was sound [51]. This necessitated examination of the reasonableness of the agency’s searches.

Were the searches reasonable?

In examining the question of whether the searches were reasonable, the Tribunal [51] described its role by reference to Beesley v Commissioner of Police, NSW Police Service [2002] NSWADT 52, “All that the Tribunal can do is to 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...”

The Applicant provided identifiers in the access application that were not provided to those searching for the information applied for [52] to [54]. The Tribunal found that there was no evidence that the searches conducted by the Respondent used the specific terms identified in the reviewable decision [57] - [58], and therefore the Tribunal found the Respondent’s searches were not reasonable in the circumstances [59].

Legislative background

Section 53 searches for information held by the agency.

Overriding presumptions against disclosure (table to section 14 of the GIPA Act):

• 3(a) personal information;
• 3(b) risk of harm or harassment.

Factual background

The Applicant sought access to information held by NSW Health Pathology, Forensic & Analytical Science Service. The Respondent advised that the application was not valid, but also sought information from the Applicant to clarify the scope of the application. The Applicant did not respond to this request, and the Respondent then refunded the application fee. The Applicant sought an external review by the Information Commissioner. The Commissioner’s review found that the application was not valid as it did not meet the requirements of section 41 of the GIPA Act  because it did not include such information as is reasonably necessary to enable the government information applied for to be identified.

Arising from the Tribunal’s case management of the application, the request was refined and the Respondent issued a new notice of decision to release some information, to refuse access to some information, and that other information was not held by the agency.

Tribunal findings on access to information

The Tribunal found the Respondent’s searches were not reasonable in the circumstances. The Tribunal found that there was not evidence put forward to support the reasons for the Respondent’s decision.

The Tribunal observed that there appeared to be inconsistency in the reviewable decision of the Respondent in that the public interest test was applied to the whole of the information sought by the Applicant rather than assessing the information separately, and although the decision maker may have assessed the different types of information separately the reasons in the decision did not make this clear [68].

Tribunal finding on good faith

The Applicant also sought that the Tribunal make a report to the Minister on improper conduct under section 112 of the GIPA Act. The Tribunal [74] summarised relevant case law as providing the following guidance:

1. The Tribunal’s opinion must be formed “as a result of an NCAT administrative review”.
2. Any referral must be made in relation to an “officer of an agency”.
3. The conduct complained about must be a failure “to exercise in good faith a function conferred on the officer by or under the GIPA Act”.
4. The test of “good faith” is predominantly subjective; however there are objective components as well and these may include consideration as to whether there had been a real attempt to answer the request for information and whether careful and serious consideration was given to the application.
5. The mere fact that an aspect of an agency’s decision is wrong is insufficient to bring a matter within section 112.

The Tribunal examined the evidence of the proceedings and declined to make the referral under section 112.

Tribunal outcome

The Tribunal, in remitting the matter for reconsideration, directed the agency to conduct specified additional searches and required the agency to provide to the Applicant and the Tribunal:

• access to information resulting from the searches,
• a statement from each person who conducted the searches identifying: what searches were conducted, where and how they were conducted and what information resulted from those searches.

A new timetable was set by the Tribunal in July 2017 with written submissions to be filed by the parties in July and August 2017, following the agency conducting the additional searches, to allow for the disposal of the matter on the papers.