Information Access Case note: Zonnevylle v Department of Education [2017] NSWCATAD 101

Read the decision at NSW Caselaw Zonnevylle v Department of Education [2017] NSWCATAD 101

In establishing that searches for information are reasonable, an agency may demonstrate: the use of identifiers provided by an applicant; that officers conducting searches turned their minds to where that information may be held in the agency; and that search officer declarations have been completed.

What you need to know

The Applicant sought access to information held by the Department of Education (the Respondent) concerning blocked emails of the Applicant. The Respondent provided access to information subject to redactions, where the Respondent claimed overriding public interest considerations against disclosure.

The Applicant claimed that the Respondent:

• had not conducted adequate or reasonable searches for the information,
• should release the redacted information, and
• that officers of the Respondent had been involved in misconduct in connection with access applications.

The Applicant also claimed the Tribunal lacked good faith and sought the member disqualify herself.

The Tribunal affirmed the Respondent’s decision, and refused the application for disqualification.

On the issues concerning searches, the Tribunal identified its approach as 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 its determination on the reasonableness of searches [56].

Does more information exist?

The Tribunal found that the Applicant had not been provided with all information that was captured by part of the access application [63] and had discharged his onus in identifying that there were reasonable grounds for believing more information existed but was not supplied [64].

Were the searches reasonable?

The Tribunal found the searches conducted by the Respondent were reasonable in the circumstances [65]. The Respondent was able to demonstrate:

• the searches undertaken [67],
• details of the practices and procedures in storing and archiving material potentially caught by the application, and
• methods of retrieval [69].  

The Respondent was able to show:

• searches where information may be have been held involved the use of identifiers specified by the Applicant,
• officers conducting searches turned their minds to whether the material requested was likely to be held in their areas, and
• searches were confirmed by search officer declarations [68].

The Applicant suggested the Respondent did not ask individual schools for information. The Respondent submitted that such searches would have been unreasonable and the Tribunal agreed [70]. The Tribunal found that the Respondent complied with the obligations imposed by section 53 of the GIPA Act to conduct reasonable searches [71].

Legislative background

Section 53 searches for information held by the agency.

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

• 1(f) prejudice the effective exercise of the agency’s functions
• 2(e) endanger the security of or prejudice any system from protecting any place, property or vehicle
• 3(a) personal information
• 3(f) risk of harm or harassment.

Factual background

The Applicant sought access to information held by the Respondent in respect of emails and other correspondence sent by any state schools and TAFE to any of the Applicant’s identified email addresses, specified IT, Procurement and EPAC documents. Following correspondence between the parties and case management by the Tribunal, the matters for redetermination by the Tribunal were access to the emails and correspondence sent by state schools on the blocked emails of the Applicant, documents on blocked email addresses generally, and documents concerning the blocking of the Applicant’s email addresses.

The Applicant sought to have the Tribunal member disqualified from determining the matter. The Applicant stated that he did not have “faith in the impartiality of the Tribunal” and believed that the Tribunal member lacked “good faith towards the Applicant” [16].

Tribunal findings dealing with the access application

The Tribunal found the Applicant had discharged the onus that there were reasonable grounds for believing further information existed. However the Tribunal was satisfied that the searches conducted by the Respondent were reasonable in the circumstances.

The Tribunal found at [95] that the Respondent had

• engaged with and complied with its obligations under the GIPA Act,
• exercised its functions properly and appropriately,
• made continuous attempts to understand and clarify the scope of the application,
• answered the application by conducting reasonable searches and providing relevant material to the Applicant,
• minimised material withheld on the basis of the public interest against disclosure, and
• acknowledged an administrative error and took steps to rectify it by issuing the Fifth decision [95].

The Tribunal at [96] observed the Respondent continued to conduct its dealings with the Applicant appropriately and in accordance with the requirements of the Act, although subjected to continuous allegations and accusations by the Applicant without sufficient evidence or basis [96].

Tribunal findings on disqualification

The Tribunal refused the application for disqualification as the issues raised by the Applicant did not provide a ground for disqualification.

Tribunal outcome

The Tribunal affirmed the Respondent’s decisions.