Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23 (27 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Steadfast Group Pty Ltd

RESPONDENT
WorkCover NSW



FILE NUMBERS:
093006

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
23 December 2009



DATE OF DECISION:
27 January 2010

BEFORE:
Molony P - Judicial Member





LEGISLATION CITED:
Freedom of Information Act 1989

CASES CITED:
Kiernan v Commissioner of Police [2007] NSWADT 18
Re Halliday and Corporate Affairs (1991) 4 VAR 327
Wooldridge v Department of Human Services (General) [2009] VCAT 1900

TEXTS CITED:


APPLICATION:
Freedom of Information Act - Access to documents

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
M Allars, barrister
RESPONDENT
I Pike, barrister


ORDERS:
1.Before the planning meeting on 5 February 2010 WorkCover shall file and serve a new schedule of documents falling within the scope of the request as identified in these reasons. With respect to each document the schedule shall indicate its date, author, the exemption claimed, and whether exemption is claimed in whole or in part.


Reasons for Decision:

REASONS FOR DECISION

Background
1 This is a decision made, on the papers, in the course of pre-hearing procedures relating to an application for external review of a decision of WorkCover (acting for the Workers Compensation Nominal Insurer) made under the Freedom of Information Act 1989 (FOIA). The Applicant is the Steadfast Group Pty Ltd, a cluster group of insurance brokers.

2 On 5 September 2008 Steadfast, via its solicitors, made the following FOI request to WorkCover (‘the request’):

‘Under the Freedom of Information Act 1989 we request on behalf of our client, Steadfast Group Limited, access to information held by the workers compensation Nominal Insurer established under the Workers Compensation Act 1987 (Nominal Insurer) in relation to comparative performance data regarding the performance of all Scheme Agents within the NSW Workers Compensation Scheme from 1 January 2004 to date. Please note that we have made a similar request for documents held by WorkCover. We are making this request because it may be that some documents do not fall within the original request.

In particular, we request access to documents that fall within the following categories:

1 Statistics relating to each Agent's return to work outcomes, including but not limited to, the Agent's comparative performance in relation to the preparation and average duration of claims as measured by the Nominal Insurer in performance outcomes and service standards under the Agents' contracts broken down by reference to the category of size of employer;

2 Statistics relating to each Agent's tail claim liability reduction performance, including but not limited to the Agent's comparative tail claim liability reduction performance as measured by the Nominal Insurer in performance outcomes and service standards under the Agent's contract;

3 Statistics relating to each Agent's loss ratio performance, including but not limited to the Agent's comparative incurred costs as measured by the Nominal Insurer in performance outcomes and service standards under the Agent's contract;

4 Statistics relating to the measurement of each Agent's claim duration performance, including but not limited to, comparative statistics measuring the period between the Agent's lodging a claim and its resolution, as measured by the Nominal Insurer in performance outcomes and service standards under the Agents' contracts;

5 Statistics relating to each Agent's comparative contribution to scheme savings, as normalised according to the Agent's share of liabilities managed, as measured by the Nominal Insurer in performance outcomes and service standards under the Agents' contracts.

3 On 26 September 2008 WorkCover determined that it held documents within categories 1 and 2, but did not have any documents within categories 3, 4 and 5. Access to the documents within categories 1 and 2 was refused on the basis that it was confidential information to which the exemption in clause 13 of Schedule 1 of the FOIA applied. Steadfast sought an internal review of that decision. On 13 November 2009 the initial decision was confirmed on internal review.

4 On 9 January 2009 Steadfast lodged an application for external review of that decision with this Tribunal. In the period that has followed there have been a series of planning meetings during which a number of directions for the filing of materials have been made. Considerable latitude and encouragement has been given to the parties in an effort to facilitate an acceptable compromise of the issues. The review was listed for hearing on 21 and 22 September 2009, but that hearing was vacated when the parties requested further time to continue their negotiations.

5 Since then negotiations have broken down. It has become apparent that the parties have entirely different views as to the scope of Steadfast’s initial request.

6 Steadfast says these differences first became apparent to it when it was served with Mr Thompson’s affidavit. Those differences were crystallised by what Steadfast saw as deficiencies (in both form and substance) in the schedule of documents which I (again) ordered WorkCover to file at a directions hearing held on 7 October 2009 (‘the schedule’).

7 In order to advance the matter it became apparent that it would be necessary for the Tribunal to make a preliminary decision as to the scope of the initial request, so that there is a clear understanding of what information the request encompassed. A determination as to the scope of the request could have a substantial impact on the adequacy, or otherwise, of the schedule. At a planning meeting held on 17 November 2009 I made directions for the filing of submissions and determined that I would decide the following issues on the papers:
1. The adequacy of the Respondent’s schedule of documents sent under cover of a letter dated 2 November 2009.
2. The scope of the Applicant’s original request for access to information.

8 I fixed the application for a further planning meeting on 5 February 2010.

The Scope of the Request
9 When responding to an application for access to information an agency is required to produce documents responsive to the request, so as to facilitate applicants in the exercise their legally enforceable right to be given access to an agency’s documents under the FOIA: see s 16(1). The objects of the Act (s 4) make it clear the legislation is intended to create and facilitate that right. The Act is to be interpreted, and the discretions given by it exercised, so as to advance those objects.

10 The definition of document for the purposes of the FOIA is a wide one incorporating not only written documents, but mediums (digital and others) by which sound, images or messages are capable of being reproduced: see s 4. It includes copy documents and "a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency:" see s 6(2).

11 I have quoted the request in full at paragraph [2] above. It can be seen that it opens with a broad and general request in the first paragraph for information held by the Nominal Insurer "in relation to comparative performance data regarding the performance of all Scheme Agents within the NSW Workers Compensation Scheme from 1 January 2004 to date." That impresses me as a relatively clear request for information.

12 While Scheme Agents did not begin to operate until 2006, the function of scheme agents was managed by insurers before then. This is well known to WorkCover and Steadfast. Insofar as there was any ambiguity or uncertainty as to whether insurers were included within the scope of the request, the period of time covered by the request provides a strong indication that Steadfast intended it to cover both scheme agents and insurers. This I note was not something about which WorkCover sought clarification from Steadfast during its decision making processes. I think it clear that the scope of the request included insurers.

13 The second paragraph of the request outlines five categories that Steadfast requested information about "in particular."

14 WorkCover submits the "only sensible construction" of the request is that it sought information in relation to the five categories set out in the second paragraph, suggesting that:

"Although not entirely apposite, the practice in curial litigation is relevant. In such litigation, particulars of a general allegation confine the ambit of the allegation."

15 In response Steadfast submitted:

"WorkCover has declined to respond to the First Paragraph of the Request, by either identifying the documents falling within it or making a determination in relation to those documents. Instead, WorkCover has treated the Included Itemised Categories as a particularisation of the First Paragraph which also robs the First Paragraph of any operation; and has required Steadfast to further particularise its Request. WorkCover appears to assume that the Request is to be treated like a statement of claim in relation to which WorkCover is entitled to seek further and better particulars:

Steadfast then cited other examples in which WorkCover had sought particulars, or the like, of the request.

16 I agree with Steadfast that WorkCover’s interpretation of the request, and its expectation that Steadfast provide particulars of the information sought, "demonstrates a fundamental misconception of the nature of Steadfast's legally enforceable right under the FOI Act and of its own duties as agent of the Nominal Insurer, an agency subject to the FOI Act."

17 Consistently with the objects of the FOIA an agency which receives a request under the Act is required to construe the request so as to facilitate an applicant’s right to access documents held by Government, and public access to information concerning government operations. This is achieved by construing a request broadly so that it extends to documents and information reasonably encompassed within the scope of its terms. It is not achieved by reading down the request, whether by the use of analogy or otherwise.

18 If there is uncertainty as to the scope of the request, then s 19(1) provides:

‘An agency shall not refuse to accept an application merely because it does not contain sufficient information to enable the document to which it relates to be identified without first taking such steps as are reasonably practicable to assist the applicant to provide such information.’

19 In my opinion WorkCover has misconstrued the request in this case. I read the first paragraph as a broad and general request for information, with the five categories in the second paragraph being areas about which Steadfast was seeking information in particular. Those categories did not confine or limit the generality of the request in the first paragraph.

20 WorkCover’s reliance on principles applicable in civil litigation to justify its construction of the request is not apposite. A person making a civil claim is required to specify the basis of their claim with some particularity, so that the person against whom the claim is made can meet it. An FOI request, however, is not a civil claim against an agency. It is a request for documents held by an agency, generally by reference to the information they contain, rather than to the documents themselves. It is often not possible for an applicant to specify with any particularity what documents are being sought, beyond identifying the type of information they contain or to which they relate, because the precise nature of the documents are unknown.

21 WorkCover as an agency of Government has specific obligations under the FOIA. Those obligations are intended to enhance to its accountability and make its operations transparent and accessible, subject to the disclosure exemptions set out in the Act, make. Those obligations are not achieved by reading down FOI requests.

22 An area of contention between the parties concerning the request is whether it is confined to "comparative performance data" and "statistics" relating to each of the five particular categories, or whether it is broader in its terms, so as to encompass other information relating to those matters. Letters exchanged between the parties illustrate that this dispute has resulted in them having differing view as to whether the request extends to the following (see paragraph 22 of WorkCover’s submissions):

"i) any other information held by the Nominal Insurer in relation to the comparative performance data regarding the performance of all Scheme Agents -- (Steadfast's letter dated 7 May 2009);

ii) information and documents other than statistical representations of comparative performance data, such as surrounding documentation and interpretation and analysis of comparative performance data -- (Steadfast's letter dated 7 May 2009);

iii) any documentation about the performance of Scheme Agents in the period stated, and this may consist in any interpretation and analysis of the comparative performance data, such as for example, any internal reports or notes of discussion -- (Steadfast's letter dated 25 May 2009); and

iv) data relating to average days on workers."

23 The first paragraph of the request sought "information ... in relation to comparative performance data regarding the performance of all Scheme Agents within the NSW Workers Compensation Scheme from 1 January 2004 to date."(My emphasis.) The information sought was not limited to comparative performance data alone, but was information "in relation to" that data. The request therefore sought information about such data, as well as the data or statistics themselves. On an ordinary reading of the request it extends to include documents, reports, discussion papers and other information in relation to or about that data, including analysis and evaluation of that data. On a simple reading, it also extends to cover information relating to comparative performance data regarding the performance of scheme agents with respect to the average days workers spend on compensation. This is a well known measure of the workers compensation scheme’s operations: the government for a number of years now has had a close and public focus on improving return to work outcomes.

24 I am satisfied that each of the four types of information set out in paragraph 22 of WorkCover’s submissions fell within the scope of Steadfast’s original request.

25 WorkCover submitted that to read the request in the manner I have would place an "unduly onerous burden" on it and "could potentially fall within the ambit of section 25 of the FOI (sic) as substantially and unreasonably diverting WorkCover’s resources." I agree with Steadfast that whether or not that is the case is not a matter which falls to be determined when considering the scope of the request. It may well be an issue which arises once the scope of the request has been determined.

26 In submissions WorkCover cited the decision of Pearson JM in Kiernan v Commissioner of Police [2007] NSWADT 18 as authority for the proposition that there is no requirement in s 23 of the FOIA which would require WorkCover to search its records, in raw data form, "in order to create documents so as to provide specific information requested by Steadfast." Section 23 provides:

‘If:

(a) it appears to an agency that an application relates to information of a kind that is not contained in a written document held by the agency, and

(b) the agency could create a written document containing information of that kind by the use of equipment that is usually available to it for retrieving or collating stored information,

the agency shall deal with the application as if it were an application for a written document so created and shall be taken to hold such a document.’

27 In Kiernan v Commissioner of Police at [26] Person JM said:

‘The right of access created by section 16 of the FOI Act for access to "an agency's documents" is to be interpreted as widely as possible, consistently with the principle of openness articulated in the objects of the Act in section 5: Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133. However, this right is subject to the limitations specified in the Act. The definitions set out above limit access to a "document", which may be in written form, or which could be put into written form by usual methods of retrieval or collation. Such a "document" is "held" by an agency if the agency has an immediate right of access to it, or it is in the possession or under the control of an officer of the agency. Nothing in the FOI Act requires an agency to search its records in order to create a document so as to provide specific information requested by an applicant. ....’

28 I have great difficulty with this. I read s 23 as providing that documents which could be created by collation or retrieval from a computer system, (for example by querying a database or searching a document management system), are documents which an agency is taken to hold. I accept that the interrogation or search of a computer system to create such a document should be able to be undertaken using the equipment usually available to the agency. Thus, s 23 would not require an agency to have a special program written to interrogate its systems (see Re Halliday and Corporate Affairs (1991) 4 VAR 327) as opposed, for example, to an Access database query.

29 I am, however, unable to agree with Pearson JM that s 23 does not oblige an agency to search or interrogate its records so as to create a document by retrieving or collating stored information. To echo the words of Coughlan DP in Wooldridge v Department of Human Services (General) [2009] VCAT 1900 at [31], documents created from equipment usually available to an agency by collation or retrieval are "the very type" of documents with which s 23 is concerned.

30 I am satisfied that the request extends to documents which WorkCover is taken to hold under s 23 that fall within the scope of the first and second paragraphs of the request.

31 It can be seen from all of the above that I have rejected WorkCover’s submissions with respect to the scope of the FOI request and am in substantial agreement with Steadfast on these issues.

32 I note that Steadfast has made submissions referring to evidence which it says shows that WorkCover holds documents which fall within the first paragraph of the request. Given that I am only determining issues relating to the scope of the request and the schedule of documents, I will not address those matters.

The Schedule of Documents
33 I have twice directed WorkCover to provide a schedule of documents falling within the request. At the directions hearing held on 7 October 2009 I specifically agreed with Counsel for the Steadfast that, with respect to each document, the schedule should indicate the document’s date, author, whether exemption is claimed in whole or in part, and the exemption claimed. I clarified that understanding with counsel then appearing for WorkCover.

34 The schedule filed by WorkCover contains a description of the documents only. WorkCover says that all the documents are exempt under clause 13, and the date and other missing details are immaterial. Given the view WorkCover held as to the scope of the request it, the Schedule provided does not respond to the first paragraph of the request.

35 Steadfast asks that I order WorkCover to provide a proper schedule providing all the required details by the next planning meeting listed for 5 February 2010.

36 I agree that the schedule filed by WorkCover – even on its flawed interpretation of the scope of the request – was unresponsive and failed to comply with the requirements I made clear on 7 October 2009. Further, given the view I have taken of the scope of the request, the schedule is unresponsive to the first paragraph of the request.

37 I will direct that before the planning meeting on 5 February 2010 WorkCover file and serve a new schedule of documents falling within the scope of the request as identified in these reasons: with respect to each document the schedule shall indicate its date, author, the exemption claimed, and whether exemption is claimed in whole or in part.

38 In making that direction I am aware that there may be practical difficulties in complying with that direction, given the shortness of time. If so, those issues shall be considered at that planning meeting.