Although there is a presumption in favour of disclosing government information, this presumption will be overcome if an application would result in an unreasonable and substantial diversion of an agency’s resources.
Members of the public are entitled to make an application to access government information. This right is prescribed in the Government Information (Public Access) Act 2009 (NSW) (GIPA). This legislation provides that there is a presumption in favour of the disclosure of government information. However, if there is an overriding public interest against disclosure, the presumption in favour of disclosure can be overcome.
This constraint is the only factor that is considered for the purposes of these applications. In Loussikian v University of Sydney  NSWCATAD 140 NCAT enlivened the right to refuse an application if it would constitute an unreasonable and substantial diversion of an agency’s resources.
In this case, the Applicant was a journalist seeking any and all emails sent and received by Dr Tim Anderson (a lecturer at Sydney University) that referenced ‘Bashar al-Assad, Syria and Palestine’. Initially, the University refused to process the Application because of its broad scope.The Applicant then amended the Application and requested only information that referenced Syria. The University again refused the Application and so the Applicant commenced proceedings in order to persuade NCAT to direct the University to provide the requested documents.
The question that NCAT needed to determine was whether the public interest considerations in favour of disclosure outweighed the amount of University resources required to provide access to the information. If so, NCAT would be permitted to direct the University to provide the requested documents to the Applicant.
The parties agreed that the factors listed in Cianfrano v Premier’s Department  NSWADT 137 were relevant considerations when assessing what constitutes an unreasonable and substantial diversion of resources. This non-exhaustive list included concerns such as the importance of the document(s) to the Applicant, the agency’s estimate of the number of documents affected by the Application and whether the request is reasonably manageable in proportion to the organisation’s size.
The University asserted that the Application would concern 243 emails, which equated to 10-15 staff days at $600 per day, a large amount of resources that the University could not easily expend. The University further submitted that the Application was made by a journalist and thus the Application should be viewed in this context. Lastly, the University contended that the estimated Application processing time was greater than 40 hours, which was a standard of determining reasonableness that was created in Cianfrano.
The Applicant disputed the University’s arguments by claiming that 10-15 staff days was a reasonable diversion of resources for an agency of comparable size to the University. Further, he claimed that whilst the documents are not of demonstrable importance to him, the documents are of public importance. Lastly, the Applicant submitted that the 40 hour rule in Cianfrano should be regarded with caution because it was constructed in the context of the facts of that case and not as a general rule.
NCAT found in favour of the University, confirming its decision that the Application was unreasonable.
NCAT’s decision was based on the following:
- The Applicant was reasonable in his approach and the information sought is of public interest, however, this is not determinative of whether information should be divulged;
- The fact that the University is large and capable does not determine whether it has sufficient resources to process an application. Whether it can process an application is predicated on whether the University makes enough resources available for processing GIPA access applications. If these resources are incapable of processing an Application due to its irregular size, it is unreasonable; and
- The University had already spent over 37 hours processing the Application. Whilst the Tribunal agreed that the 40 hour reference is not a rule to be applied generally, it decided that in the circumstances it was not reasonable to process the Application as it would take well in excess of a further 40 hours of labour.
What does this mean?
Although GIPA prescribes a method of obtaining government information and a presumption in favour of obtaining access to the information, if it is clear that the information requested could impose an unreasonable diversion of resources on the relevant agency, the Application can be refused.
Post by John Kell and Joshua Yan