On 22 June 2017, the NSW Civil and Administrative Tribunal (Tribunal) handed down its decision in McClymont v Department of Family and Community Services (the Department) [2017] NSWCATAD 202. This decision explored whether the Department undertook "reasonable searches" as required under s 53(2) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for information requested by the Applicant.
The information sought by the Applicant related to the maintenance of two units at the social housing premises where he resided.
In April 2016, the Department provided the Applicant access to some information but denied access to other information on the bases that it concerned personal information, contained commercial-in-confidence provisions of a government contract and may prejudice a person's commercial interests. Following the original determination and the commencement of the Tribunal proceedings, the Department located further information and provided this to the Applicant, whilst maintaining that the balance of the information requested would not be disclosed due to an overriding public interest against disclosure.
The Applicant contended that the Department held more information than that it had identified and its searches for the information requested were insufficient.
The Tribunal's role was to determine whether the Department's supplementary decision that it did not hold information, other than what was identified was the "correct and preferable decision". In answering this question, the Tribunal stated that the Department was only required to conduct reasonable searches for the information and the Tribunal could consider the extent and effectiveness of such searches.
The Applicant submitted that the documents provided to him were not sequentially ordered, some documents were produced twice and some documents were produced to him were not documents he requested. However, the Tribunal did not accept that this led to a conclusion that further information existed.
The Department provided evidence from its staff showing that the TRIM file was reviewed, electronic searches of TRIM using specified keywords were conducted and other teams within the Department carried out searches for the information on different systems. Although there was not direct evidence from each person who carried out the relevant searches, which the Tribunal noted would be ideal, the Tribunal was satisfied that the searches were conducted appropriately and there was nothing to suggest that the Department held further information.
Finally, the Tribunal held that whilst it had jurisdiction to review a decision that an agency does not hold information, it did not have jurisdiction to review any alleged failure to comply with an obligation to conduct reasonable searches.
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