Beregi v Department of Planning Industry and Environment

Grounds of Appeal

1. The appeal may be brought as of right on a question of law, and with the leave of the Appeal Panel, on other grounds: s 80(2)(b) Civil and Administrative Tribunal Act 2013 (NCAT Act). Ms Beregi is not seeking leave to appeal.
2. The grounds of appeal are: 1. The reasons for decision is incomplete, and the Tribunal did not deal with the alternative basis for the decisions under review; 2. The Tribunal erred in its interpretation of the operation of consent in cl 6 of Sch 1 to the GIPA Act: 1. In the implication that consent operates to change the designation of information as "excluded information"; and 2. In limiting the operation of cl 6(1) of Sch 1 to a specific access request; and 1. The Tribunal erred in stating that the complaint handling and investigative functions of the OLG under s 430 of the LG Act include the "undertaking of the conduct of a public inquiry", as the OLG does not undertake or conduct a public inquiry, rather a Commissioner undertakes an inquiry pursuant to the Royal Commissions Act 1923. Information relating to the OLG's activity when participating in a public inquiry as witness or provision of submissions is therefore not "excluded information".
3. In the Reply to the Appeal the respondent contended that the Tribunal had not erred as alleged by Ms Beregi. It said that Grounds (1) and (3) require leave, and the respondent would oppose leave being granted. The respondent further contended that the appeal was not lodged within the prescribed time, and while the length of the delay was short, an extension of time was opposed. In submissions filed before the hearing the respondent accepted that the grounds of appeal raise only questions of law, and did not oppose an extension of time to lodge the appeal.

Whether extension of time should be granted

1. The Tribunal decision was published on Caselaw on 9 December 2019. The Notice of Appeal was lodged on 8 January 2020.
2. An email was sent by the Tribunal to Ms Beregi at her specified email address on 6 December 2019 notifying her that the decision would be published on Caselaw on 9 December 2019 and would be available after 10.00am. A further email was sent on 10 December 2019, notifying Ms Beregi of the orders made on 9 December 2019.
3. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 prescribes a period of 28 days for lodging an internal appeal, "from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)". The decision published on Caselaw on 9 December 2019 provided both the orders determining the applications for review, and the reasons. The appeal should have been lodged by 6 January 2020.
4. Ms Beregi stated in the Notice of Appeal that she received notice of the decision on 10 December 2019. In her submissions of 12 March 2020 Ms Beregi stated that she sent the Notice of Appeal by Express Post on 6 January 2020; the 28 day time period straddled the Christmas/New Year holiday period; she was expecting to have received the decision by 18 November 2019; and she finalised the Notice of Appeal immediately on her return from an overseas vacation.
5. The delay was short, and the respondent did not oppose an extension of time. The Appeal Panel extends the time to lodge the appeal to 8 January 2020.

Issues

1. The issues in the appeal are: 1. Whether the Tribunal erred in not addressing the alternative contention raised by the respondent; 2. Whether the Tribunal erred in the interpretation of "excluded information" in cl 2 of Sch 2 to the GIPA Act as applicable to the OLG; 3. Whether the Tribunal erred in the application of cl 6(1) of Sch 1 to the GIPA Act in determining consent to disclosure.
2. The Tribunal decision made no express reference to the documents identified by Ms Brown, a Manager at OLG, as Exhibit LB-2 to her statement of 14 June 2019. Those documents are described in the respondent's submissions as the "Clause 3 Documents", being documents referred to in Clause 3 of the second access application dated 3 October 2018. That issue is considered below.

GIPA Act

1. No issue is taken with the Tribunal's summary at paras [17]-[22] of the decision of the scheme of the GIPA Act, including the objects of the GIPA Act, the right of review for a reviewable decision as defined in s 80(1) of the GIPA Act, and the role of the Tribunal on administrative review under the Administrative Decisions Review Act 1997. At para [19] the Tribunal referred to s 5 of the GIPA Act, which states that there is a presumption in favour of disclosure of government information unless there is an "overriding public interest against disclosure", and s 9, which states that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an "overriding public interest against disclosure".
2. Under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1.
3. Clause 6 of Sch 1 provides: 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
4. The term "excluded information" is defined in cl 1 of Sch 4 ("Interpretive Provisions") to mean: excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.
5. Schedule 2 to the GIPA Act is headed "Excluded information of particular agencies". The Note to Sch 2 states: Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.
6. Clause 2 provides: 2 Complaints handling and investigative information … The Office of Local Government (including the Chief Executive and other Departmental representatives) - complaint handling and investigative functions conferred by or under any Act on that Department. …
7. Section 43(1) of the GIPA Act provides that an access application cannot be made to an agency for access to excluded information of the agency. Under s 43(2), an application for government information is not a valid application to the extent that that application is made in contravention of s 43.
8. In responding to an access application for government information for which there is not a conclusive presumption of an overriding public interest against disclosure, an agency is required by s 13 of the GIPA Act to consider whether the public interest considerations against disclosure, to be determined in accordance with the Table to s 14, outweigh the public interest considerations in favour of disclosure.

Local Government Act

1. The Public Inquiry conducted by Commissioner Howard SC was constituted under Part 8 ("Public Inquiries") of Chapter 13 of the LG Act. Section 438U provides: 438U Public inquiries (1) The Governor or the Minister may appoint a person as commissioner, or two or more persons as commissioners, to hold a public inquiry and to report to the Governor or the Minister with respect to - (a) any matter relating to the carrying out of the provisions of this Act or any other Act conferring or imposing functions on a council, and (b) any act or omission of a member of a council, any employee of a council or any person elected or appointed to any office or position under this or any other Act conferring or imposing functions on a council, being an act or omission relating to the carrying out of the provisions of the Act concerned, or to the office or position held by the member, employee or person under the Act concerned, or to the functions of that office or position. (2) For the purposes of any inquiry under this section, any person appointed to hold the inquiry has the powers, authorities, protections and immunities conferred on a commissioner, as well as the powers, authorities, protections and immunities conferred by Division 1 of Part 2 of the Royal Commissions Act 1923 - (a) on a sole commissioner (if the person is the only person appointed to hold the inquiry), or (b) on a chairperson of a commission (if the person is one of two or more persons appointed to hold the inquiry and has been appointed as chairperson of the inquiry). (3) The provisions of section 24 of the Local Court Act 2007 apply to any witness or person summoned by or appearing before the person so appointed in the same way as it applies to witnesses and persons in proceedings under that Act. (4) The provisions of the Royal Commissions Act 1923 (section 13 and Division 2 of Part 2 excepted) apply, with any necessary adaptations, to and in respect of any inquiry under this section and to and in respect of any witness or person summoned by or appearing before the person or persons holding the inquiry. (5) The Minister is to cause the report of the person or persons who have held an inquiry under this section to be laid before both Houses of Parliament. If neither House of Parliament is sitting, section 14B of the Royal Commissions Act 1923 applies.
2. The Report of the Public Inquiry into North Sydney Council (10 October 2016) was in evidence before the Tribunal, and the Terms of Reference were: To inquire and report to the Minister for Local Government on the following matters relating to North Sydney Council: 1. Whether the elected representatives have been, since December 2013, and will continue to be, in a position to direct and control the affairs of Council in accordance with the Local Government Act 1993, so that Council may fulfil its charter, the provisions of the Local Government Act 1993 and otherwise fulfil its statutory functions, and 2. Whether, since December 2013, the Council and its elected representative have complied with applicable laws, Council's adopted Code of Conduct, the Procedures for the Administration of the Code of Conduct, Council's Code of Meeting Principles and Practice and Council's administrative rules and policies and have fulfilled its and their legislative duties, powers and functions particularly with respect to their relationships with each other and with senior and other staff of Council. 3. The Commissioner may make such recommendations as he sees fit having regard to the outcomes of the Inquiry.

Material before the Appeal Panel

1. Ms Beregi provided to the Appeal Panel: 1. A copy of a statement and submissions made to the Tribunal; 2. Documents annexed to those submissions including: 1. correspondence between the OLG, Commissioner Howard, the Acting Chief Executive OLG, and OLG officers; 2. media reports; 3. reports including the Report of the Public Inquiry, closing submissions, and transcript from the Public Inquiry; 4. other documents including the North Sydney Council Code of Conduct; and 1. submissions, and submissions in reply, on the appeal.
2. Leave was granted for Ms Beregi's husband to make oral submissions on her behalf at the appeal hearing.
3. The respondent provided to the Appeal Panel: 1. A copy of the statements of Ms Lynette Brown (14 June 2019 and 28 August 2019) in evidence before the Tribunal; 2. Submissions provided to the Tribunal (29 August 2019); 3. Transcript of Tribunal hearing 18 September 2019 (open sessions); 4. Schedule of documents in dispute; 5. Bundle including extracts from legislation and cases referred to; and 6. Submissions on the appeal.
4. The respondent provided to the Appeal Panel on a confidential basis copies of the documents in dispute, and transcript of the confidential part of the Tribunal hearing on 18 September 2019. An order was made under s 64(1)(c) of the NCAT Act prohibiting publication of the material in that bundle, and under s 64(1)(d) of the NCAT Act prohibiting disclosure of the contents of those documents to Ms Beregi.

Whether the Tribunal erred in not addressing the alternative contention raised by the respondent

1. Ms Beregi submits that the Tribunal erred in not addressing the respondent's second contention as summarised in para [15] of the Tribunal's decision, namely that for each piece of information in dispute, the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure, and thus there was an overriding public interest against disclosure.
2. Ms Beregi submits that the failure either to provide an explanation as to why that issue was not addressed, or to address the alternative reason, even if an oversight, was a critical oversight that affected the integrity of the decision.
3. The respondent submits that there was no obligation on the Tribunal to explain why it decided to deal first with the respondent's primary position that the information was "excluded information" and thus subject to a conclusive presumption of an overriding public interest against disclosure. Having determined that issue in favour of the respondent, that was dispositive of both applications, and the Tribunal did not need to consider the alternative position. Even if the failure to explain why it was not necessary to do so was an error, it made no difference to the Tribunal's determination.
4. The Appeal Panel agrees with the respondent that the Tribunal was not required to address the respondent's alternative position. The obligation imposed on decision-makers was described by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 in the following terms: …It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309, at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.
5. Hutley and Samuels JJA agreed that the obligation to give reasons for a decision did not include an obligation to give reasons for findings on every issue raised.
6. Consistent with that approach, having determined the matter on the basis of the respondent's primary position, the Tribunal could have gone on to consider the alternative position. That would have required the Tribunal to determine in accordance with s 13 of the GIPA Act, in respect of each individual piece of information, whether the public interests against disclosure outweighed those in favour of disclosure. However, having concluded that there was a conclusive presumption of an overriding public interest against disclosure, that exercise would not have altered the outcome. There was no error in the failure to either explain why the alternative position was not considered, or to determine that issue.

Whether the Tribunal erred in the interpretation of "excluded information" in cl 2 of Sch 2 as applicable to the OLG

1. The Tribunal summarised the background to the Public Inquiry and the role of the OLG in the following terms: 10. Further background to the Public Enquiry and the role of OLG was provided in a statement filed in these proceedings by Lynette Brown, Manager, Investigations Team, Sector Performance and Intervention Group, OLG and in evidence given by Ms Brown at the hearing. That evidence was not challenged. Ms Brown stated that from around 2013 onwards OLG received a number of complaints relating to the Council. The complaints were made by councillors, council staff and others and were about councillors and council staff. Ms Brown states that OLG conducted preliminary inquiries in relation to the complaints and monitored the relevant activities of the Council. 11. Ms Brown states that her role requires her to oversee the inquiries and investigations undertaken by the Investigations Team and to provide advice to the Chief Executive of OLG on pecuniary interest, councillor misconduct, dysfunction and maladministration in relation to local councils and council officials. She states that when complaints about councillor conduct are received her team investigates such complaints and then provides advice to the Chief Executive of OLG and the Minister. Her team also monitors the outcome of action taken in relation to complaints. 12. On 15 September 2014 the then Minister for Local Government (Minister) issued a Notice of Intention to Suspend the Council pursuant to section 438K of the Local Government Act. The Minister did not in fact suspend the Council and, instead, on 31 October 2014 issued a Notice of Intention to Issue a Performance Improvement Order in relation to the Council. A Performance Improvement Order was issued by the Minister pursuant to section 438A of the Local Government Act on 8 December 2014. Ms Brown states that, despite the Performance Improvement Order, it was evident that matters at the Council were not improving and there were further complaints from the public. This then led to the establishment of the Public Inquiry. 13. Miss Brown also gave evidence that OLG assisted the Public Inquiry and two investigators from her office were seconded and appointed as Officers assisting the Public Inquiry. She stated that, as was usual practice, OLG created a specific file for the Public Inquiry in the OLG document system (known as Objective). The file was caveated so that only officers assisting the Public Inquiry had access to the file during the course of the enquiry. All files relevant to the Public Inquiry were saved to the specific file for that enquiry. Following completion of the Public Inquiry, the caveat was taken off the file which meant that anyone in the office then had access to the file.
2. The Tribunal's consideration of whether the information in dispute was "excluded information" was as follows: 21. The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of and against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information (Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41]). As set out above, "excluded information" is defined as being information "that relates to any function specified… in relation to the agency". The expression "relate to" has been held to be one of broad import: see, for example, Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 11. This Tribunal has generally held that the phrase "relating to" and similar expressions is a broad one to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [23]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]). As the Tribunal noted in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [15], in each case, the question is the extent to which the information in issue has a connection with the specified function. 22. Ms Beregi submits that the respondent has failed to show that the information in question relates to the complaint handling and investigative functions conferred by or under any Act on the OLG as required by Schedule 2. She also submits that there is a clear distinction between any complaint handling and investigative functions of the OLG and a public inquiry established under s 438U of the Local Government Act. In light of this distinction, the information to which she seeks access, as it relates to a public inquiry, is unrelated to any complaint handling and investigative functions which may be conferred on OLG. 23. The GIPA Act does not define the terms "investigative function" or "complaint handling function". There has been little consideration of the construction of these terms and they should be given their natural meanings. Drawing on cases in other related fields, however, a significant breadth of information is capable of falling within the definition of "investigative and complaint handling functions" (Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 at [45] - [62]; DF v Director General, Attorney General's Department [2002] NSWADT 164 at [25]; Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [32]). 24. Section 430 of the Local Government Act provides that the Chief Executive may, at the request of the Minister or on the Chief Executive's own initiative, conduct an investigation into any aspect of a council or of its work and activities. Section 430 is a very broad general investigative power and is in addition to specific complaint and investigative powers conferred in relation to public interest disclosures (s 429A) and pecuniary interests (s 460). The Minister has various powers in relation to councils and can issue a performance improvement order specifying the reason for the making of the order and the actions the Minister requires a council to take to improve performance (s 438A). The Minister can also temporarily suspend a council if the Minister believes that the appointment of an interim administrator is necessary to restore the proper or effective functioning of the council (s 438I). The Governor or the Minister may also appoint a Commissioner or Commissioners to hold a public inquiry into matters relating to the performance of the functions of a council or councillor (s 438U). 25. The evidence of Ms Brown is that OLG receives complaints about councils from a variety of sources and also receives referrals from other agencies, such as the Ombudsman and Independent Commission Against Corruption. She states information obtained from such complaints is subject to a preliminary inquiry in order to inform a decision about whether or not particular investigations should be conducted. Her area within OLG is responsible for providing advice about how certain complaints might be resolved as part of the investigation of a particular complaint. Her evidence is that the powers of the Minister to suspend a council or to issue a Performance Improvement Order are extensions of the complaints and investigative functions conferred on OLG. In her evidence she described the process, in the case of the Council, as more or less a continuum ultimately leading to a public inquiry as no other steps that had been taken had been effective to deal with the issues the subject of the complaints. 26. A brief description of all of the information in dispute is contained in Ms Brown's statement. I was also supplied with a complete copy of the information which has been withheld from Ms Beregi and had the opportunity in a confidential session of the hearing to hear further submissions from the respondent in relation to the information and to ask questions accordingly. 27. I am of the view, contrary to the submissions of Ms Beregi, that the complaint handling and investigative functions of the respondent encompass matters from the receipt of a complaint up to and including its resolution. These functions will include the broad complaint handling powers in section 430 of the Local Government Act and extend to the more serious functions concerning the suspension of a council, the making of a Performance Improvement Order and to the very serious undertaking of the conduct of a public inquiry into allegations against a council or councillors. I do not agree with Ms Beregi's submission that use of the information in the course of the Public Inquiry by Mr Howard means that the information was no longer related to any function of the OLG. In my view, such a secondary use of the information does not remove its fundamental character as information of the relevant kind. Such a view is in accordance with the broad interpretation which has been given to the term information that relates to the complaint handling and investigative functions conferred by or under any Act on OLG. 28. The information in question concerns matters such as details of the complaints; information provided to Mr Howard about complaints which had been dealt with by OLG; submissions and file notes prepared by OLG staff containing their observations of Council meetings prepared as part of the process of ascertaining whether various complaints should be investigated; notes of confidential conversations between OLG staff and persons from or related to Council; documents which were generated as part of the OLG investigation of the complaints; responses to requests from Mr Howard for information relating to matters the subject of the public inquiry; and submissions, recommendations and emails concerning steps to be taken to deal with the complaints made about the Council and assessments of steps already taken in relation to those issues. 29. I am therefore satisfied that the information relates to the complaint handling and investigative functions conferred by or under the Local Government Act on OLG and, as such, is therefore prima facie excluded information.
3. Ms Beregi submits that the Tribunal erred in not considering the words "conferred by or under any Act on that Department" in the identification of the complaint handling and investigative functions of OLG that are "excluded information" (GIPA Act, Sch 2, cl 2). In doing so, she submits, the Tribunal effectively extended the definition of "excluded information" to any complaint handling or investigative activity involving the OLG, regardless of whether the activity is pursuant to a function conferred by or imposed under any Act.
4. Ms Beregi submits that a public inquiry is undertaken by a Commissioner appointed by the Minister or the Governor pursuant to s 438U of the LG Act, and there is no section of any Act that confers any complaint handling or investigative function on the OLG with regard to the "undertaking of a public inquiry". In using the term "relates to" to expand the scope of the function, the Tribunal erred as those words operate on the connection between the information and the function, and do not expand the scope of the function. The OLG participated in the Public Inquiry by providing evidence and submissions, secondment of officers, and providing resources, however it was not performing a complaint handling function. The OLG is the only agency where the functions included in Sch 2 are limited to those conferred by or under an Act.
5. The respondent submits that term "relates to" is broad, and information relating to the complaint handling or investigative functions conferred by or under any Act on the OLG is excluded information. It submits that each of the matters identified in para [28] of the Tribunal's decision relates to, at least, the OLG's complaint handling functions conferred on it by legislation including the LG Act. Information prepared for a purpose specified in Sch 2 to the GIPA Act is excluded information, and remains so even if it is later used for other concurrent purposes, such as to assist the Public Inquiry. It is not to the point that the OLG is not conferred with the power to conduct a public inquiry: as long as the information in question relates to any of the OLG's complaint handling or investigative functions, including the very broad investigative power conferred by s 430 of the LG Act, it is excluded information.
6. The respondent submits that the important question is what was the purpose or character of the information at the time it was first obtained by the OLG. It is not simply because the information was part of the Public Inquiry that it is part of the complaint handling and investigative function of the OLG, rather that the information sought was from the start information relating to the OLG's complaint handling. The Minister might make a performance improvement order or have an inquiry following a complaint-handling process by the OLG, and some of the information derived from the OLG may go into that process. The existence of that later process did not mean that the information does not relate to the OLG's complaint handling and investigative functions.
7. The respondent submits that the Departmental Chief Executive (the DCE) or his or her delegates have under Chapters 13 and 14 of the LG Act responsibility for receiving and investigating complaints about councils, councillors, delegates and staff. The LG Act gives the respondent power to investigate councils, and to make preliminary inquiries for the purpose of deciding whether to exercise any powers of investigation, or powers to authorise an investigation, whether or not a complaint has been made. The respondent's investigations may lead to the respondent taking disciplinary action against a councillor or referring the councillor to the Tribunal; and the respondent can also make recommendations to councils. The respondent submits that any government information relating to any of these functions falls within the scope of excluded information. The powers to be exercised by the Minister come after the respondent has engaged in its complaint handling and investigation functions. Further, paras [26], [27] and [28] of the decision confirm that the Tribunal had regard to the information itself.

Discussion and findings

1. The central issue is whether the Tribunal erred in concluding that the information requested "relates to" the "complaint handling and investigative functions conferred by or under any Act" on the OLG (GIPA Act, Sch 4, definition of "excluded information" and Sch 2, cl 2).
2. The Tribunal adopted a broad view of the meaning of "complaint handling and investigative functions", concluding that that term encompassed matters from the receipt of a complaint up to and including its resolution. Whether the Tribunal was correct in adopting that broad view depends on the construction of the words used in the definition of "excluded information" and in cl 2 of Sch 2, in context.
3. There are 21 agencies identified in cl 2 of Sch 2 under the heading "Complaints handling and investigative information". The functions in respect of which information is excluded information are different for each of those agencies, and in addition to the terms "complaint handling" and "investigative", some include functions such as "reporting, "review", "inspection", "operational auditing", and "complaints resolution". As noted by the Appeal Panel in DNM v NSW Ombudsman [2019] NSWCATAP 77 at [47], those terms are generic descriptions of various agency functions, described in general terms. The Tribunal and its predecessor, the Administrative Decisions Tribunal, have, as identified in the decision at [23] in the context of other agencies and functions, adopted a broad reading of the terms used in cl 2. The ordinary meaning of the words "complaint handling and investigative functions" is apt to apply to a broad range of activities of an agency.
4. There are two features of the provision for the OLG that need to be noted. First, the OLG is the only agency listed in cl 2 of Sch 2 for which there is a reference to functions "conferred by or under any Act on that Department". In the context of this matter, there is no dispute that the only Act that may confer a relevant function on the OLG is the LG Act.
5. Secondly, the reference in the GIPA Act to the OLG is extended, by the words "(including the Chief Executive and other Departmental representatives)". Those terms have a defined meaning in the LG Act, relevant to the background to the OLG itself, and to the functions conferred under the LG Act.
6. Clause 2 of Sch 2 of the GIPA Act was amended in 2018 by the Government Information (Public Access) Amendment Act 2018, and previously provided: The Department of Local Government (including the Director-General and other Departmental representatives) - complaint handling and investigative functions conferred by or under any Act on that Department.
7. The term "Department" is still used in cl 2 of Sch 2, and that term is defined in the Dictionary to the LG Act as follows: Department or Department of Local Government means the Office of Local Government.
8. Clause 2 of Sch 2 refers to the "Chief Executive". The term used in the LG Act is "Departmental Chief Executive", which is defined in the Dictionary to the LG Act: Departmental Chief Executive means the Chief Executive of the Office of Local Government.
9. Both the current, and the pre-2018, versions of cl 2 of Sch 2 refer to a "Departmental representative". That term no longer appears in the LG Act after the amendments made by the Local Government Amendment (Early Intervention) Act 2013 which commenced on 25 June 2013. The term previously referred to a person authorised by the Director-General under s 430 of the LG Act "to investigate any aspect of a council or of its work and activities". The savings and transitional provisions consequent on the enactment of the Local Government Amendment (Early Intervention) Act 2013 included in cl 109 of Sch 8 to the LG Act provision for any investigation authorised before the amendment to be taken to be an investigation by the Director-General under s 430, and for a Departmental representative authorised under s 430 to be taken to have been delegated the functions of the Director-General under ss 431 and 432 in connection with the investigation.
10. Section 430 of the LG Act now confers power on the DCE, at the request of the Minister or on his or her own initiative, to conduct an investigation into any aspect of a council or its work and activities. As noted by the Tribunal at [24], the investigative power conferred by s 430 on the OLG is very broad, and is in addition to the express powers in respect of public interest disclosure complaints under s 429A, and in respect of contravention of the pecuniary interest provisions in Part 3 of Chapter 14.
11. As noted above, the OLG is no longer a separate agency, but located within what is now the Department of Planning, Industry and Environment. The LG Act confers no function expressly on the OLG, and no longer confers functions on a "Departmental representative", but does confer functions on the Departmental Chief Executive (DCE). The DCE may delegate to any person any of the functions conferred under the LG Act; and a delegate may subdelegate to a person employed in the Department any function delegated by the DCE if the delegate is authorised in writing to do so by the DCE: s 745.
12. The functions of the DCE include specific functions under Chapter 7 Approvals, Chapter 9 relating to council boundaries, Chapter 10 on qualification for civic office, Chapter 11 staffing, Part 6 of Chapter 12 on council private-public partnerships, Chapter 14 on councillors including misconduct and disciplinary provisions, Chapter 15 council finance, and Chapter 17 Enforcement. The role of the DCE in the broad context of council activity and regulation is reflected in 23A of the LG Act, which enables the DCE to prepare guidelines relating to the exercise by a council of any of its functions, which must be taken into consideration by councils.
13. Clause 2 of Sch 2 refers to functions conferred on the OLG "by or under" any Act (emphasis added). In understanding what is encompassed by the term "complaint handling and investigative functions" of the OLG, including the DCE, in cl 2 of Sch 2 to the GIPA Act, Chapters 13 and 14 of the LG Act are relevant. Chapter 13 is headed "How are councils made accountable for their actions?", and makes provision generally for management of performance issues in a council. Where Chapter 13 provides for accountability of a council, Chapter 14 is headed "Honesty and disclosure of interests" and provides for codes of conduct and misconduct and disciplinary matters for councillors and staff. In misconduct matters, which include under s 440F a councillor's alleged contravention of the legislation, failure to comply with a requirement of a code of conduct, or an act of disorder at a council meeting, the DCE may conduct an investigation on his or her own initiative or in response to an allegation of misconduct referred by a council or the general manager of a council: LG Act, s 440H(1), (2). The DCE may prepare a departmental report about whether a councillor has engaged in misconduct, and such a report is a prerequisite to a decision by the DCE to take disciplinary action against a councillor: LG Act, s 440H(5), (6).
14. The relevant provisions of Chapter 13 are as follows. Parts 6, 7 and 8 of Chapter 13 were inserted in the LG Act, and Part 5 amended, by the Local Government Amendment (Early Intervention) Act 2013, with effect from 25 June 2013. Part 5 Inquiries, Reviews and Surcharging includes s 429A, under which complaints may be made by a public official to the DCE about the conduct of, inter alia, a council. Under s 430 the DCE, at the request of the Minister or on his or her own initiative, may conduct an investigation into any aspect of a council or its work and activities. Information held by the OLG relating to an investigation conducted under the power expressly conferred by s 430, whether conducted by the DCE or a delegate, or a former authorised Departmental representative, would be excluded information under cl 2 of Sch 2, both by reference to the investigation itself and the identity of the person conducting the investigation.
15. While clearly falling within the "investigative functions" of the OLG for the purposes of cl 2 of Sch 2, an investigation under s 430 is linked to other provisions in Chapter 13 of the LG Act, in the following ways.
16. First, while an investigation under s 430 of the LG Act may be initiated by the DCE in response to a complaint made about a council (s 429A(3)), it is not in terms limited only to responding to a complaint. Section 734A(1) of the LG Act provides that the DCE may make preliminary enquiries for the purpose of deciding whether to exercise any of his or her powers of investigation, or powers to authorise an investigation under the LG Act; and those enquiries may be made whether or not a complaint has been made under the Act in connection with any matter to which the enquiries relate: s 734A(2).
17. Secondly, the outcome of an investigation under s 430 is, under s 433, a report, including comment on any matter that warrants special attention and any recommendations, which is provided to the Minister and to the council concerned. The council must, under s 434, respond, giving written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report. Under s 434(2) the Minister may order the council to do such things or to refrain from doing such things arising from the recommendations contained in the report as are specified in the order; and under s 434(3) the council must comply.
18. Part 6 of Chapter 13 of the LG Act confers powers on the Minister, including the power under s 438A to issue a performance improvement order if the Minister reasonably considers that action must be taken to improve the performance of the council, such an order to specify actions to improve the performance of a council including those necessary to improve or restore the proper or effective functioning of the council. Under s 438B the Minister must consider any performance improvement criteria prescribed in the regulations before issuing a performance improvement order. Those criteria are specified in the Local Government (General) Regulation 2005 (Regulation): 413D Performance improvement criteria: section 438B The following are criteria to be considered by the Minister before issuing a performance improvement order - (a) whether the council concerned has failed to comply with its legislative responsibilities, standards or guidelines, (b) whether there are significant risks facing the council that are not being addressed, (c) whether previous intervention attempts have failed, (d) whether council business is being disrupted and the council failing to exercise its functions, (e) (Repealed) (f) whether there is a pattern of poor or inappropriate behaviour, either by one or more councillors or members of staff of the council, that has not been rectified, (g) any other matter that, in the opinion of the Minister, is relevant to the issuing of the order.
19. Under Part 7 of Chapter 13 of the LG Act, the Minister has power to temporarily suspend a council (s 438I) and appoint an interim administrator (s 438M) if necessary to restore the proper or effective functioning of the council. The criteria to be considered in suspending a council are provided in the Regulation: 413E Suspension criteria: section 438J The following are criteria to be considered by the Minister before temporarily suspending a council - (a) whether the council has failed to comply with its legislative responsibilities, standards or guidelines, (b) whether there are significant risks facing the council that are not being addressed, (c) whether previous intervention attempts have failed, (d) whether council business is being disrupted and the council failing to exercise its functions, (e) whether the appointment of an interim administrator is necessary, in the opinion of the Minister, to restore the proper or effective functioning of the council, (f) whether there is a pattern of poor or inappropriate behaviour by one or more councillors that has not been rectified, (g) whether an ordinary election of councillors occurs within 3 months after the making of the order, (h) any other matter that, in the opinion of the Minister, is relevant to the suspension of the council.
20. Part 8 of Chapter 13 includes s 438U, under which the Minister or the Governor may appoint a Commissioner to hold a public inquiry. A council may be required under s 438V to pay the expenses of a public inquiry, if the inquiry "relates to a recurring problem with the administration of a council". That is defined in s 438V(2) to mean "any facts or circumstances with respect to the council, its work or its activities that have been the subject of previous Ministerial intervention, and that have continued to exist or have recurred, despite that Ministerial intervention". The reference to "Ministerial intervention" is to the issue of a performance improvement order or a temporary suspension of the council: s 438V(3).
21. The Minister may under s 438W suspend a council if a public inquiry relating to the council is held; and appoint under s 438Y an interim administrator.
22. Section 438ZC of the LG Act provides that a performance improvement order may be issued in response to the results of a public inquiry in relation to a council. A note to s 438ZC refers to s 255 of the LG Act, under which the Minister may, after considering whether the council has complied with the performance improvement order, recommend that the council be dismissed.
23. The power to dismiss a council, by declaring all civic offices vacant, is conferred under s 255 of the LG Act on the Governor. The power to dismiss a council under s 255 may be exercised if the Independent Commission Against Corruption has recommended that consideration be given to the making of such a declaration because of systemic corruption within the council (s 255(2)), or if a public inquiry has been held and the Minister recommends that such a declaration be made (s 255(1)). The Minister may so recommend only after considering the results of the public inquiry, or, if having issued a performance improvement order in response to the results of the public inquiry, after considering whether the council has complied with the order (s 255(1A)).
24. The circumstances in which the Minister or the Governor may appoint a Commissioner under s 438U of the LG Act to conduct a public inquiry are broadly expressed. A Commissioner may be appointed to hold a public inquiry with respect to "any matter relating to the carrying out of the provisions of [the LG] Act or any other Act conferring or imposing functions on a council" (LG Act, s 438U(1)). That would authorise a public inquiry into matters having nothing to do with the performance of any individual council or councils generally, and is in contrast with the circumstances in which a performance improvement order may be issued under s 438A, or a council temporarily suspended under s 438I. Notwithstanding that distinction, a public inquiry may play a role in the broader performance management and improvement processes under Chapter 13 of the LG Act, and in the ultimate sanction available, being the dismissal of the council under s 255.
25. The Tribunal relied on the evidence of Ms Lynette Brown, Manager, Investigations Team, Sector Performance and Intervention Group, OLG as to the process adopted by the OLG in its receipt and consideration of complaints about councils, including provision of advice to the Chief Executive of the OLG and the Minister, and monitoring the outcome of action taken in relation to complaints. At [25] the Tribunal referred to Ms Brown's evidence describing the process in the case of the Council as a continuum, leading to a public inquiry as no other steps that had been taken had been effective to deal with the issues the subject of the complaints. As noted at [10]-[12], those steps had included preliminary inquiries into the complaints received from 2013 onwards and monitoring relevant activities of the Council, the issue by the Minister in September 2014 of a Notice of Intention to Suspend the Council pursuant to s 438K of the LG Act, and the issue by the Minister in December 2014 of a Performance Improvement Order, following which there were further complaints from the public. At [13] the Tribunal referred to Ms Brown's evidence as to the assistance provided by the OLG to the public inquiry, in the form of secondment of two investigators, and the creation of a specific file for the public inquiry in the OLG document system.
26. The Tribunal concluded at [27] that the complaint handling and investigative functions of the OLG encompass "matters from the receipt of a complaint up to and including its resolution", from the broad complaint handling powers in s 430 of the LG Act through to more serious functions concerning suspension and a performance improvement order, to the very serious undertaking of a public inquiry.
27. The broad approach adopted by the Tribunal to the range of functions provided for in Chapter 13 of the LG Act as informing the "complaint handling and investigative functions" of the OLG is consistent with Ms Brown's evidence as to the OLG's role in performance management. In oral evidence Ms Brown explained that complaints give the OLG an indicator that something is not going right at the council, and the OLG then has an obligation to examine that information and to monitor and see how that council is going (T 191). Ms Brown's evidence was that the underlying information, being complaints, investigations and monitoring, was used to inform the Minister about whether the criteria for the issue of a performance management order were met (T 192). The OLG could manage complaints, but to get an effective outcome a range of mechanisms to try and assist the council to improve its performance was needed; by the time of the public inquiry nothing had been effective and the complaints could not have been dealt with even with the performance improvement order (T 193). The OLG had a dual role in the public inquiry, in providing a submission and giving evidence, and in providing documents to the Commissioner at his request (T 198). In cross examination Ms Brown described the OLG's role in the public inquiry as being a "supporting agency" (T 200); and further described the OLG as doing all the preliminary inquiries, investigations and intervention work, and using the information gained to inform the advice provided as to the most appropriate intervention by the DCE or the Minister (T 211).
28. Ms Beregi takes issue with the Tribunal's reference in [27] to the "undertaking of a public inquiry", which she submits is not a function conferred on the OLG. That is because, as Ms Beregi submits, the Governor or the Minister appoints a Commissioner to hold a public inquiry under s 438U of the LG Act. The question is whether this determines whether the information held by the OLG relating to the period leading up to the calling of the inquiry into the Council, through the conduct of the inquiry and the preparation of a report until that report was tabled in Parliament, is information that "relates to" the "complaint handling and investigative functions conferred by or under any Act on that Department".
29. The Tribunal relied on the authorities adopting a broad approach to the term "relates to", concluding at [21] that the question is the extent to which the information in issue has a connection with the specified function. The authorities referred to, in particular Miller v Director of Public Prosecutions [2012] NSWADT 38 and more recently Watson v NSW Trustee and Guardian [2015] NSWCATAD 139, support that approach. In Miller the Tribunal adopted a broad approach both to the functions, in that case being the "prosecuting functions" of the DPP, and the expression "relating to", applying the reasoning in the Federal Court decision in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111, at [28] that the words "relating to" "are of the widest import". In Watson v NSW Trustee and Guardian [2015] NSWCATAD 139, concerning information relating to complaint handling by the NSW Trustee and Guardian, the Tribunal concluded at [15] based on those authorities, that the issue is the extent to which the information in issue has a connection with the specified agency.
30. The term "relates to" was considered by the New South Wales Court of Appeal in Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390. Campbell JA reviewed the relevant authorities at [44] and following. His Honour referred (at [45]) to Taylor J's judgment in Tooheys Ltd v Cmr of Stamp Duties (NSW) (1961) 105 CLR 602 at 620, where his Honour said: the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified.
31. His Honour also referred (at [46]) to the judgment of Beaumont and Lehane JJ in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285, where their Honours referred to Taylor J's judgment in Tooheys then continued: Other decisions of the High Court have acknowledged that, ordinarily, "relates to" is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice…
32. We consider that the term "relates to," as it is used in the definition of "excluded information" in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament's intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to "open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure" (GIPA Act, s 3(1)(c)). The use of the term "relates to" indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG's complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2).
33. The Tribunal was entitled to rely on the evidence of Ms Brown in informing an understanding of the relationship between the various functions being performed by the respondent in respect of the provisions in Parts 5, 6, 7 and 8 of Chapter 13 of the LG Act in the factual context in which the steps summarised at paras [10]-[13] of the Tribunal's reasons were undertaken. The fact that the legislation expressly confers some powers on the Minister or the Governor, in addition to the powers expressly conferred on the DCE, does not preclude the OLG from undertaking the broader role identified in Ms Brown's evidence, and summarised by the Tribunal in para [27]. There was no error in the Tribunal adopting a broad approach to what the expression "complaint handling and investigative functions" of the OLG encompasses, or to the type of connection between those functions and the information required by the expression "relates to" as used in the definition of "excluded information" in Sch 4.
34. The Tribunal's acceptance that the information the subject of the access applications relevantly related to the complaint handling and investigative functions of the OLG, in the context of complaints made from 2013, was also consistent with the Terms of Reference of the public inquiry (see para [28] above), and the outcomes of that inquiry. The Executive Summary to the Report referred to the period covered by the public inquiry, from December 2013, as having been "a troubled period" for the elected body of North Sydney Council, involving conflict between the Mayor and Councillors and the Mayor and former General Manager, manifested in disorderly conduct of debate during Council meetings, adverse effect on mayoral functions, and excessive use of the code of conduct complaint process. The Report addressed those matters in detail in Chapters 4, 5, 6, and 7, and findings were made in relation to particular aspects of dysfunction or poor performance on the part of the Council's governing body.
35. The first access application sought access to information in documents or other communications generated between the OLG and the public inquiry, and draft reports and preparation of draft reports, the latter request including communications involving the Minister. The second access application sought access to information in documents and other communications between the OLG and the Minister, and communications within the OLG, generated in the period from 1 July 2015 leading up to the decision on 21 January 2016 to call the public inquiry, including documents relating to a complaint by the Council about a councillor's conduct and the decision on 6 November 2015 to investigate that complaint.
36. The Tribunal considered the documents in issue, summarising their content and purpose in paragraph [28]. That summary necessarily was in broad terms, having regard to the requirement in s 107 of the GIPA Act that the Tribunal ensure in its reasons or otherwise that it does not disclose any information for which there is an overriding public interest against disclosure. The reasons make clear at [26] that the Tribunal had access to the relevant documents, and discussed those documents in the confidential session with the respondent's representative.
37. Paragraph [27] of the Tribunal's decision is expressed in broad terms. Read in isolation, it might suggest that the respondent's complaint handling and investigative functions included the conduct of a public inquiry. The function of appointing a person as Commissioner to hold a public inquiry is conferred on the Governor or the Minister under s 438U(1) of the LG Act, not the respondent. However, when read with [28] it is clear that the Tribunal was not asserting that the public inquiry was undertaken by the OLG, rather that the information sought in the access applications derived from the complaints handling and investigation process that commenced from 2013 and continued through to the public inquiry in 2016. The Tribunal's conclusion that the information the subject of the access applications relevantly "related to" the complaint handling and investigative functions of the OLG conferred by or under the LG Act was open on the evidence before the Tribunal.
38. The Appeal Panel is of the view that when the "complaint handling and investigative functions" of the OLG are considered in the context of the range of performance management approaches provided in Parts 5, 6, 7 and 8 of Chapter 13 of the LG Act, and regard is had to the role of a public inquiry in that context, there was no error in the Tribunal's conclusion that information relating to the lead up to the public inquiry conducted in 2016 by Commissioner Howard and the preparation of the report of that inquiry was information that "relates to" those functions conferred on the OLG by or under the LG Act.

Whether the Tribunal erred in the application of cl 6(1) of Sch 1 in determining consent to disclosure

1. The Tribunal concluded that the information was prima facie "excluded information", and went on to consider whether there had been consent to its release, so that the conclusive presumption of an overriding public interest against disclosure in cl 6(1) would not apply.
2. The Tribunal noted at [30] that some information that would fall into the category of excluded information had been released in response to the access applications. The Tribunal noted at [31] Ms Beregi's submission that all the information withheld in relation to her first access request was in fact freely disclosed to Commissioner Howard for the purpose of the Public Inquiry, and that some of the information was provided to the Minister, and that OLG could not assert that the information was subject to a conclusive presumption against disclosure. Ms Beregi had in fact been provided with some of the disputed information through other avenues.
3. The Tribunal addressed the issue of consent in the following terms: 33. Ms Beregi submits that the caveat in relation to whether information is excluded information concerning consent to its release needs to be interpreted widely and should include past consents to release of the information. 34. Information can be sought and obtained under a variety of means. The fact that information may have already been released in other circumstances does not change the character of the information as "excluded information" under the GIPA Act. The provisions which apply to the characterisation of the relevant information are to be found solely within the GIPA Act. The issues for determination concern whether or not under that Act the information is "excluded information". While the respondent has in fact consented to the provision to Ms Beregi of some information which is "excluded information", there has been no consent by the respondent to the provision of the balance of that information in response to the access applications under the GIPA Act. The information in dispute is therefore excluded information within the meaning of the GIPA Act.
4. Ms Beregi submits that there is nothing in cl 6(1) of Sch 1 or in its context in the GIPA Act which suggests that it should be limited to the circumstances of a specific current access request. If the agency provides consensual disclosure at a point in time it cannot thereafter assert a conclusive presumption against disclosure of the same information. The use of the words "it is conclusively presumed" demonstrates the prospective way in which the presumption operates, in contrast to the use of the past tense "has consented to" in dealing with consensual release: that makes it clear that the conclusive presumption will not apply where there has been past consensual release of excluded information. An interpretation whereby the OLG could consensually disclose excluded information whether pursuant to an access request or not, and continue to assert that the information is confidential and withhold it in a subsequent access request, is neither fair nor reasonable and is contrary to the objects of the GIPA Act.
5. Ms Beregi submits that the Tribunal erroneously required that there be some change in the character of the information to remove the conclusive presumption, and the interpretation adopted was contrary to the plain unambiguous language of cl 6(1), which imposes no limits on the circumstances of consensual disclosure and no mechanisms to re-attach the conclusive presumption once disclosed.
6. The respondent submits that the correct interpretation of cl 6(1) of Sch 1 is that a decision of an agency to consent to disclosure of excluded information does not destroy its capacity to refuse to consent to release of that information. That interpretation is supported by cl 6(2) and (3). If Ms Beregi's submission is correct there would be no need for an agency considering a request for access to information that is excluded information of another agency to consult that agency under cl 6(2). The agency whose information is excluded information would be presumed to have consented to disclosure to the agency which received it, and that agency would be obliged to disclose the information, subject to the application of the public interest test in s 13 of the GIPA Act. The specification in cl 6(3) of a decision to consent or refuse to consent as being not a reviewable decision is only understandable if it is understood that the relevant opportunity to consent or refuse consent arises only in the context of an access application.
7. The respondent submits that decision-makers frequently decide to consent to release of information that would otherwise be excluded information for specific purposes, here for the purposes of the Public Inquiry. If cl 6 were read as contended by Ms Beregi, the capacity of an agency to disclose excluded information to enable others to carry out their important functions would be severely compromised.
8. The respondent further submits that the question of whether consent has been provided goes to whether the conclusive presumption applies, and not to whether the information is excluded information. The time when the question of consent arises is when an access application for information including excluded information is made, and the issue is whether the agency at that time consents to disclosure.

Discussion and findings

1. The Tribunal addressed the question of consent to disclosure by reference to the respondent's response to the access applications by Ms Beregi, and concluded at [34] that the fact that information may have already been released in other circumstances does not change the character of the information as "excluded information".
2. The first question is whether the consequence of consent to disclosure of excluded information is that the information is no longer excluded information, or that the conclusive presumption of an overriding public interest against disclosure no longer applies. While it is possible to read the final sentence in para [34] as reflecting the former, when para [34] and [30] are read in context, the Tribunal was, in the view of the Appeal Panel, proceeding on the basis that the respondent could not rely on the conclusive presumption against disclosure that applied to excluded information under cl 6 of Sch 1 in respect of information which it had disclosed in responding to Ms Beregi's access applications.
3. Ms Beregi contends that the Tribunal erred in not regarding prior disclosures of some of the information to the Commissioner, or to the Minister, as constituting consent for the purposes of cl 6(1); and in confining the consideration of consent to determination of the access applications.
4. The Appeal Panel is of the view that there was no error in the Tribunal's approach to the question of consent under cl 6(1), for the following reasons.
5. First, as submitted by the respondent, cl 6 should be read as a whole, in the context of an agency determining an application for access to the information. Both cl 6(1) and (2) operate at the point that an agency is determining the application. An agency determining an access application for information which it holds, but which is "excluded information" because it relates to the functions of another agency specified in Sch 2, would be required to refuse access to that information on the basis that the information was subject to a conclusive presumption of an overriding public interest against disclosure. In that situation, cl 6(2) requires the agency holding the information to consult the other agency, which could consent to disclosure of the information; and if that other agency consents to disclosure, cl 6(1) would operate so that there would not be a conclusive presumption that there is an overriding public interest against disclosure. Clause 6(1) applies whether the information is excluded information of the agency determining the access request, or the other agency consulted under cl 6(2). While cl 6(1) uses the past tense in "has consented to the disclosure of", cl 6(3) makes clear that in either case, the decision to consent or refuse to consent to disclosure of excluded information is not a reviewable decision. That provision, and in particular the reference to a refusal to consent, is relevant only in the context of the time when an access application is determined. Read in that light, cl 6(1) is referring to consent to disclosure at the time an access application is determined, and not any past consent to disclosure.
6. Secondly, the interpretation adopted by the Tribunal is consistent with the scheme of the GIPA Act as a whole, and is supported by previous decisions of the Tribunal.
7. Information may be obtained or used by an agency for a number of purposes. In Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 the Tribunal considered statements obtained by the Local Health District in the course of an internal investigation into a complaint about a hospital, and provided as part of its response to the Health Care Complaints Commission which was also determining a complaint. The Tribunal concluded at [65] that the statements had a dual purpose, and were not prepared for the sole purpose of the investigation into the HCCC complaint. They were obtained in the exercise of the HCCC's investigative function, and were excluded information. A similar view conclusion was reached in Achieve Australia Ltd v Department of Family and Community Services [2014] NSWCATAD 171 concerning a report of an investigation into the applicant undertaken by the Ombudsman, paid for by the respondent Department; the Tribunal concluded at [32] that while the report was prepared for the Department's purpose, as well as being prepared in connection with the Ombudsman's complaint handling and/or investigative functions, the information was excluded information.
8. In contrast with situations such as disclosure of documents under summons solely for the purpose of the legal proceedings in which that summons is issued, other than in limited circumstances such as for medical or psychiatric information no conditions as to use or disclosure of information for which access has been provided under the GIPA Act can be imposed: s 73 GIPA Act. The fact that information the subject of these access applications may have previously been disclosed to the Commissioner, or to the Minister, for the purposes of the public inquiry or in respect of the other processes and considerations under Chapter 13, including the decision to hold a public inquiry, could not determine whether consent should be granted to disclosure in response to an access application made after those events. The fact that some of the information may have been provided to Ms Beregi, or any other person or witness to the inquiry, possibly for some specified purpose or subject to some undertaking or restriction as to use, could not constitute consent to the disclosure to the world under the GIPA Act.

Conclusion

1. The Appeal Panel concludes that there was no error in the Tribunal's interpretation of cl 2 of Sch 2, or in its application of cl 6(1) of Sch 1 to the access requests, and no error in its determination of the access applications on the basis of the conclusive presumption of an overriding public interest against disclosure. Subject to determining the remaining issues with the information falling within Clause 3 of the access application made on 3 October 2018, the appeal should be dismissed.

Clause 3 documents

1. As noted above, the Tribunal made no express reference to the documents within the scope of Clause 3 of the second access application, being included in Exhibit LB-2 to the statement of Ms Brown dated 14 June 2019, on a USB drive. The decision under review in matter 2018/00349983 was that that information fell within the complaint handling and investigative functions conferred by or under the LG Act on the OLG, and that it was therefore excluded information, and the application for access to that information was not a valid access application under s 43(1) and (2) of the GIPA Act.
2. The respondent's position on the appeal was that the arguments concerning whether or not the information sought by Clause 3 of the second access application was excluded information, and the evidence in support of those arguments, were the same as the arguments and evidence in relation to the balance of the documents containing the information in dispute. The respondent submitted at para [29] of the written submissions that the decision to affirm the decision under review other than in releasing documents as consented to by the respondent ought to be understood as affirming that part of the decision on the second access application that Clause 3 was invalid. In oral submissions on the appeal the respondent submitted that if the Appeal Panel were to determine the matter itself, the difference is that the documents in two of the files included in the Clause 3 documents had not been provided to the public inquiry in that form.
3. In oral submissions on the appeal Ms Beregi submitted that it had been assumed that those documents were provided to the public inquiry, and so the the same argument in relation to consent to disclosure of the information applied.
4. The Appeal Panel is of the view that, in the interests of clarity and finality, a determination of whether the information in the Clause 3 documents was excluded information should be made.
5. The Appeal Panel has the documents the subject of the Clause 3 request, the transcript of the confidential part of the hearing, and the written submissions by both parties before the Tribunal and on the appeal. The issues were identified in the written submissions on the appeal, and addressed by both parties in oral submissions. It would be preferable, in the interests of the just, quick and cheap determination of the issues in dispute, for the Appeal Panel to exercise the power conferred by s 80(3) of the NCAT Act, and deal with part of the appeal, being the issue concerning the Clause 3 documents, "by way of a new hearing" on the basis of the evidence before the Tribunal, rather than remitting the matter to the Tribunal.
6. The evidence before the Tribunal included Ms Brown's evidence in para 94 of her statement of 14 June 2019 that the Clause 3 documents provided in Exhibit LB-2 contain documents which are, by definition, part of the investigative process, and as such, by their very nature those files contain information relating to the OLG's complaint handling and investigative functions. Having considered the documents and the parties' submissions, the Appeal Panel agrees with that characterisation of the information. The Appeal Panel is satisfied that consistent with the reasons above as to the interpretation of the provisions of cl 2 of Sch 2 and cl 6 of Sch 1 to the GIPA Act, and in particular in [83] above, the information relates to the OLG's complaint handling and investigative functions as conferred by or under Chapters 13 and 14 of the LG Act.

Orders

1. The orders of the Appeal Panel are: 1. The time in which to lodge the appeal is extended to 8 January 2020; 2. The decision under appeal in matter 2018/00205665 is affirmed; 3. The internal appeal in relation to the information the subject of Clause 3 of the access application the subject of matter 2018/00349983 is dealt with by way of a new hearing based on the evidence before the Tribunal at first instance; 4. The respondent's decision in relation to that part of the access application referred to in (3) is affirmed; 5. The decision under appeal in relation to the remainder of the information the subject of application 2018/00349983 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 07 September 2020 - File number corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2020