Watson v NSW Trustee and Guardian (No.2) reaffirms the general principle that the failure of an agency to identify all documents in response to an application for access to information does not indicate that the searches were not reasonable.
This case was the review of a redetermination decision that had been made following an earlier decision involving these parties. As a result of that redetermination, the NSW Trustee and Guardian (TAG) had identified additional information and provided it to ACAT. TAG agreed to the release of most of the information but some information was redacted.
The missing information that had resulted in the redetermination decision comprised earlier emails that had been omitted from copies of particular email chains that had been provided to Mr Watson.
Mr Watson maintained that TAG had not conducted adequate searches largely on the basis that information had been missed in TAG’s original searches. He also argued that he should be provided with access to the redacted information because of the public interest considerations in favour of disclosure.
ACAT noted that the obligation under section 53 is for an agency to undertake “such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received”.
Shepherd and Department of Housing Local Government and Planning, a leading authority in this area, identified a two limb approach to what constitutes an adequate search:
- “whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so,
- whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.”
Shepherd has been affirmed by ACAT on a number of occasions including Camilleri v Commissioner of Police, NSW Police Force where the observation was also made:
“The fact that there may be weaknesses in an agency’s searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate.”
TAG submitted and ACAT accepted that the information contained in the emails missing from the email chains was included elsewhere in the bundle provided to Mr Watson. ACAT noted that the GIPA Act is concerned with information, not documents.
ACAT noted that in making the redetermination, the responsible officer had:
- contacted all of the officers of TAG named in the application;
- made further enquiries of individuals whose positions suggested that they may have held relevant information;
- identified files that might have held relevant information and reviewed those files; and
- obtained hard copy and electronic records from those individuals who indicated that they held relevant information.
As a result of these searches, documents not identified in the initial searches were identified.
ACAT concluded that while it was unfortunate not all documents containing the relevant government information had been identified in the initial searches, it did not indicate that those searches were not reasonable. For these reasons ACAT was not satisfied that other information that fell within the scope of Mr Watson’s application exists.
ACAT also concluded that the redacted information had been properly redacted.
Post by John Kell