ALQ June 2023 - GIPA Act

Decision summaries

Applying the public interest test under the GIPA Act

Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAP 103

The appellant appealed the Tribunal’s decision in Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 214, which had affirmed the Commissioner’s decision to refuse access to certain information on the basis that there was an overriding public interest against disclosure.

While the appeal proceeded on various grounds, the primary submission of the appellant was that the Tribunal had erred in its application of the public interest test, as it had failed to have regard to the public interest favouring disclosure of information to the appellant and had unduly focussed on the considerations against disclosure. Relatedly, the appellant argued that the Tribunal’s reasons were inadequate as they did not set out the Tribunal’s path of reasoning in applying the public interest test.

The respondent submitted that there was no error in circumstances where the Tribunal had correctly described what was required in applying the public interest test, and where it was apparent from its reasons that it did have regard to the public interest favouring disclosure.

While dismissing many of the appellant’s appeal grounds, the Appeal Panel found that the Tribunal had erred in its application of the public interest test, as it had failed to make findings as to what public interest considerations favouring disclosure applied, and what weight should be attributed to those. The matter has been remitted for reconsideration by a differently constituted Tribunal.

Appeal Panel awards costs in favour of agency

Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104

This matter involved an application for costs made by the Commissioner of Police. This followed the Appeal Panel’s prior substantive decision dismissing the appellant’s appeal from the Tribunal’s earlier decision, which determined an application for review of the Commissioner’s decision pursuant to the Government Information (Public Access) Act 2009.

The Commissioner made submissions there were ‘special circumstances’ under s. 60(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) which would warrant an order for costs. These included that the appellant contributed to making the appeal complex by pressing several grounds of appeal, many of which were lacking in substance. Further, the appellant, whilst self-represented, was experienced in Tribunal litigation.

The Appeal Panel found that the appellant did not comply with s. 36(3) of the CAT Act by failing to provide written submissions and by her conduct during the appeal hearing. The appellant had also re-agitated jurisdictional arguments which had been rejected in other proceedings. The appellant failed to engage with the reasons in those decisions. The Appeal Panel also decided to make the costs order in the form of a gross-sum costs order, adopted a ‘broad brush’ approach to assessing an appropriate sum and applied a 20% deduction to the solicitor’s fees claimed.

Appeal Panel confirms commercial value of training material

Webb v Port Stephens Council [2023] NSWCATAP 133

The appellant appealed the Tribunal’s decision in Webb v Port Stephens Council [2022] NSWCATAD 404, affirming the Council’s decision under the GIPA Act to refuse access to information, including training material that had been prepared by the Crown Solicitor’s Office (CSO) for courses conducted with respect to the GIPA Act. The CSO was joined as a respondent to the appeal, due to its interest in the information in issue.

The appellant argued that the Tribunal had erred in finding that the CSO training material was of competitive commercial value, that its disclosure would place the CSO at a competitive commercial disadvantage, and that its disclosure would prejudice the business interests of the CSO. Both the respondent Council and the CSO argued that there was no error in the Tribunal’s decision and that the appeal should be dismissed.

The Appeal Panel dismissed each of the appeal grounds raised by the appellant, finding that the evidence before the Tribunal fully supported the Tribunal’s conclusions that each of the public interest considerations against disclosure applied with respect to the CSO training material. There was no error in the Tribunal’s determination that there was an overriding public interest against disclosure of the material.

Risk of serious harassment or serious intimidation by release of information

Zonnevylle v Minister for Education and Early Childhood Learning [2023] NSWCATAD 135

The applicant sought review of a decision to refuse access to certain information requested under the Government Information (Public Access) Act 2009, and the decision that certain information requested was not held.

The applicant’s written submissions made wide-ranging allegations of corruption which the Tribunal found to be mostly irrelevant, and unsupported by cogent and probative evidence. The appellant declined to participate in the hearing of his application, choosing to disconnect from the hearing after a number of interlocutory applications were refused. The Tribunal was satisfied that the applicant had been afforded procedural fairness and decided to determine the application in his absence.

The Tribunal affirmed the respondent’s decision on review. In particular, the Tribunal was satisfied that the applicant’s conduct and his history of sending voluminous and accusatory correspondence demonstrated that there were ample grounds for a reasonable expectation that disclosure of the contact details of individuals would give rise to a risk of serious harassment and serious intimidation. The Tribunal was also satisfied there was an overriding public interest against disclosure of a deliberative document, as well as material subject to a claim of legal professional privilege, and a house-folder note, the disclosure of which would infringe the privilege of Parliament.

More than general effects of disclosing requested information may be required to establish ‘overriding public interest against disclosure’

DYD v Commissioner of Police, NSW Police Force [2023] NSWCATAD 97

The applicant sought administrative review of the Commissioner’s decision under the Government Information (Public Access) Act 2009 (GIPA Act) in relation his application to access certain government information relating to COPS events about him and his children.

The Commissioner contended that the information held was subject to an overriding public interest against disclosure as the disclosure of the information could reasonably be expected to prejudice the NSW Police Force’s (NSWPF) law enforcement, complaint handling and work, health and safety functions, prejudice the effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of the NSWPF (or another agency) and prejudice the prevention, detection or investigation of a contravention or possible contravention of the law. The Commissioner also contended that the NSWPF did not hold some of the information sought.

The Tribunal determined that, on the evidence, the Commissioner had established that the NSWPF did not hold some of the requested information and that some, but not all, of the requested information held by the NSWPF was subject to an overriding public interest against disclosure. While the NSWPF had established the systemic or general effects of all the public interest considerations against disclosure, the NSWPF had not established that disclosing all the information would have the specified effects. Accordingly, the Commissioner was ordered to release that information, which included a schedule created to record the search results performed by the NSWPF to locate the requested information, even when it recorded no information was found.

Applications for information invalid

Hariz v Commissioner of Police, NSW Police Force [2023] NSWCATAD 99

The applicant made two applications for information in substantially the same terms. The first application was determined to be invalid, as it did not comply with the requirement in s. 41(1)(e) that it contain such information as is reasonably necessary to allow the information applied for to be identified. The Commissioner refused to deal with the second application on the grounds that doing so would require an unreasonable and substantial diversion of resources. The applicant sought administrative review of both decisions.

Before the Tribunal, the Commissioner argued that the correct and preferable decision was that both applications for information were invalid, as they did not comply with s. 41(1)(e) of the Government Information (Public Access) Act 2009 (GIPA Act). Section 51(4) allows for agencies that have determined an application to be valid to later revise that decision to find the application invalid. Further, any decision as to validity necessarily precedes assessment of resources required to determine the application.

The Tribunal found that several items in the applications lacked clarity as to the parameters of information requested, were inherently subjective and requested the creation of new documents. Accordingly, the Tribunal found that both applications were invalid as they did not comply with the requirement in s. 41(1)(e) of the GIPA Act. The Tribunal also went on to find that dealing with the applications would have involved an unreasonable and substantial diversion of resources pursuant to s. 60(1)(e) of the GIPA Act.

Review of decision that information not held

Ooi v NSW Ministry of Health [2023] NSWCATAD 107

The applicant sought access under the Government Information (Public Access) Act 2009 to de-identified patient-level data underpinning Tables that had been published by the respondent as part of the weekly COVID-surveillance reports. In particular, the applicant sought data going to patient’s vaccination status, clinical severity and age-groups. The Ministry determined that it did not hold a record of the information requested by the applicant. The applicant sought review of this decision by the Tribunal.

The respondent’s position was that it did not hold a record that compiled the information requested by the applicant in the format requested. The respondent gave evidence that the published tables were compiled by extracting and linking data from three separate sources, the Notifiable Condition Information Management Database, the Patient Flow Portal and the Australian Immunisation Register (a Commonwealth database). This process was completed using ‘R’ statistical programming language, which created a temporary database that only existed for the duration of the R session. The only output from a session was the aggregated tables: no intermediate analysis was retained.

The applicant submitted that it was not plausible that the respondent did not retain records of its intermediate analysis in producing the Tables. The Information Commissioner also made submissions regarding the interpretation of the term ‘government information’ where government information is increasingly digitised and stored as data.

The decision was affirmed. The Tribunal accepted the respondent’s evidence that it did not retain records of the patient level data or intermediate data underlying the published tables. In these circumstances, it was not necessary to address the concerns raised by the Information Commissioner, however, the Tribunal indicated it saw no reason to adopt a narrower construction of ‘government information’ than that adopted in Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288.

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