Christopher v Independent Commission Against Corruption

Matters in issue

1. The issue for determination in the applicant's substantive application is whether the information, as articulated in the applicant's access application, is an applicant for access to 'excluded information' of the respondent in that the information sought 'relates to' the 'corruption prevention, complaint handling, investigative and reporting functions' of the respondent: GIPA Act, s 43, Sch 2 cl 2.
2. In the alternative, the respondent, having conducted a search for the information it holds falling within the terms of the applicant's access application, contends that there is a conclusively presumed overriding public interest against the disclosure of the information on a number of grounds set out in Sch 1 of the GIPA Act, including the ground that the information is 'excluded information': GIPA Act, s 14(1), Sch 1 cll 1, 2, 5 and 6.
3. The applicant has not been provided with any information about the date, author or recipient of these documents, other than being informed by the respondent, at the hearing, that 15 documents were found to be responsive to his access application. The applicant was also informed that, in some cases, one or more of these documents were responsive to a number of his categories and that no documents were found in response to categories (6), (10), (11) and (15) of his access application.
4. For the reasons that follow, I am not satisfied that the terms of the applicant's access application, in its entirety, is an invalid application under s 43(2) of the GIPA Act.
5. However, I have found that having regard to the terms of category (10), (11), (13), (14) and (15) in the applicant's access application the information he seeks in these categories is 'excluded information' because the information 'relates to' the 'corruption prevention, complaint handling, investigative and reporting functions' of the respondent and to that extent the applicant's application for access is an invalid application; GIPA Act s 43(2).
6. In regard to the remaining categories (other than category (6) for which no information was held), I have considered the respondent's alternative case by considering the information in the documents, provided to the Tribunal in confidence, which the respondent has identified as being responsive to these categories. However, I have only considered the respondent's alternative case in the context as to whether the information in these responsive documents is also 'excluded information'.
7. I have found that the information in the documents that are responsive to category (1) to (5) and (7) to (9) of the applicant's access application is also 'excluded information' in that the information 'relates to' the 'corruption prevention, complaint handling, investigative and reporting functions'. Hence, there is a conclusively presumed overriding public interest against the disclosure of this information: GIPA Act s 14(1) and Sch 1,cl 6.
8. This leaves category (12) of the applicant's access application. I have made no conclusive finding in regard to the documents containing information responsive to this category. Instead I have remitted this for reconsideration by the respondent.

The applicant's access application

1. With the exception of 'any document that records matters concerning corruption prevention, complaint handling, investigative and reporting functions' of the respondent that is 'excluded' information, the applicant sought access to the following 15 categories of communications made and received in the period, 1 January 2015 to 30 June 2015: 1. Copies of any document sent by an officer, employee or representative of the respondent to any member of the NSW Legislative Assembly (MP) or any staff, employee or administrative assistant of any MP that relates to or makes reference to the Amendment Bill (including drafts) or the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. 2. Copies of any document received from any MP or any staff, employee or administrative assistant of an MP by any officer, employee or representatives of the respondent that relates to or makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. 3. Copies of any document sent by any Commissioner or any representative of any Commissioner to any MP or any staff, employee or administrative assistant of any MP that relates to or makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. 4. Copies of any document received from any MP or any staff, employee or any administrative assistant of any MP by any Commissioner or any representative of any Commissioner that relates to or makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. 5. Copies of any document passing between any two or more employees, officers or representatives of the respondent or Commissioners which refer to or relate to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. 6. Copies of any document recording any discussion or consideration by any officer or employee of the respondent or a Commissioner of the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. [Note - the respondent disclosed that it held no document falling within this category] 7. Copies of any document recording any discussion whether by telephone or any other means between any MP, or any staff, employee or representative of any MP, on the one hand and any employee, officer or representative of the respondent or any Commissioner on the other hand about the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. 8. Copies of any document sent by any staff, employee or representative of the respondent, or any Commissioner or any representative of the Commissioner, to the Inspector of the respondent, or any staff, employee or representative of the Inspector of the respondent that makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. 9. Copies of any document received from the Inspector of the respondent, by any staff, employee or representative of the respondent, or any Commissioner or representative of any Commissioner that relates to or makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act. 10. Copies of any document recording communications between any officer, employee or representative of the respondent, or any Commissioner, and the Supreme Court of NSW (including any communications to any Judge, Registrar, officer or employee of that Court) about or in connection with any of the following proceedings: 1. Travers William Duncan v Independent Commission Against Corruption No 2014/00239426; 2. John Vern McGuigan v Independent Commission Against Corruption No 2014/00249038; 3. John Charles Atkinson v Independent Commission Against Corruption No 2014/00319803. 4. [Note - the respondent disclosed that it held no document falling within this category] 1. Copies of any document recording any discussion or consideration by any officer or employee of the respondent or a Commissioner of the impact or effect of the Amendment Bill or the Amendment Act on the following proceedings: 1. Travers William Duncan v Independent Commission Against Corruption No 2014/00239426; 2. John Vern McGuigan v Independent Commission Against Corruption No 2014/00249038; 3. John Charles Atkinson v Independent Commission Against Corruption No 2014/00319803. 4. [Note - the respondent disclosed that it held no document falling within this category] 1. Copies of any document recording any communications between a Commissioner or any officer, employee, or representative of the respondent on one hand, and any journalist or media business on the other hand, that relates to or makes reference to the Amendment Bill or the Validation Act, or the matters the subject of the Amendment Bill or Validation Act. 2. Copies of any document prepared, created, sent or received by any employee, officer or representative of the respondent or any Commissioner that records any consideration of the impact of the decision in the High Court of Australia in Independent Commission Against Corruption v Margret Cunneen & Ors [2015] HCA 14 on the findings of Commissioner David Ipp in his report of July 2013 about the directors of Cascade Cole. 3. Copies of any document prepared, created, sent or received by any employee, officer or representative of the respondent or any Commissioner that records any consideration of, or refers to, the effect of the Amendment Act or Validation Bill on the findings of Commissioner the Hon David Ipp (Ipp) in his report of July 2013 about the directors of Cascade Cole. 4. Copies of any document prepared or created by any employee, officer or representative of the respondent and provided to any Commissioner that refers to or relates to the Amendment Bill or the Validation Act and the effect or impact of either of these instruments on the findings of Commissioner Ipp in his report of July 2013 about the directors of Cascade Cole. [Note - the respondent disclosed that it held no document falling within this category]

Background

1. The applicant is a partner of the law firm, Webb Henderson. He made his access application on behalf of Mr John McGuigan (Mr McGuigan) and Mr John Atkinson (Mr Atkinson), who are directors of Cascade Coal and clients of his firm.
2. In July 2013, Commissioner Ipp, made corruption findings against the Cascade Cole Directors, including Mr McGuigan and Mr Atkinson. The findings were made, under the ICAC Act, in response to the Operation Japer investigation that was also conducted under that Act.
3. Following those findings, in October 2013, the Cascade Coal Directors filed a summons in NSW Supreme Court seeking judicial review of the findings made against them by Commissioner Ipp. In July 2014, the Supreme Court made orders dismissing the summonses filed by the Cascade Coal Directors: Duncan & Ors v ICAC [2014] NSWSC 1018.
4. Following the decision of the Supreme Court, the Cascade Directors filed a summons in the NSW Court of Appeal seeking leave to appeal from the decision of the Supreme Court.

Cunneen Decision

1. On 15 April 2015, before the Cascade Coal Directors' application for leave to appeal could be heard, the High Court delivered its judgement in the Cunneen proceedings.
2. As noted by the respondent in its submissions, the Cunneen Decision clarified the extent of the s 8 investigation powers of the respondent: ICAC Act, s 8. In that case the question for determination by the Court was the meaning of the expression 'adversely affects, or could adversely affect ... the exercise of official functions by any public official' in the definition of 'corrupt conduct' in s 8(2) of the ICAC Act.
3. At [2] and [3], the majority (per French CJ, Hayne, Kiefel and Nettle JJ) explained that in the context of the ICAC Act there were two possible meanings to the expression 'adversely affect' in s 8(2) of the ICAC Act and summarised its findings as follows: 2. … [Either] it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case. 3. The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act as set out in s 2A. The latter would result in the inclusion in "corrupt conduct" of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act. It would also enable the Independent Commission Against Corruption ("ICAC") to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act. For those reasons, and the reasons which follow, the former meaning is to be preferred.
4. On 20 April 2015, the respondent issued a public statement in regard to the Cunneen Decision in which it said that it had made a submission to the NSW Government to consider, as a matter of priority, amending s 8(2) of the ICAC Act to ensure that the section operated in accordance with its intended broader scope and making any such amendment retrospective.
5. On 23 April 2015, the Office of the NSW Crown Solicitor, wrote to the legal representatives of the Cascade Coal Directors setting out the respondent's position in regard to the effect of the Cunneen Decision on their respective Court of Appeal proceedings and the appropriate manner in which those proceedings were to be resolved. In that regard, based on the law as it stood at that time, the respondent agreed to consent to orders that would grant the Cascade Coal Directors leave to appeal, allow each appeal and set aside the orders of the Supreme Court. It was also agreed that, in substitution of the orders made by the Supreme Court, an order would be made declaring the corrupt conduct findings against each Director as being invalid.
6. On 6 May 2015, the President of the Court of Appeal wrote to the legal representative of the Cascade Coal Director and the respondent advising that the Court had considered their submissions and draft short minutes of order. In her letter, the President proposed an alternative form of declaration and advised that further submissions could be made by either party, on 8 May 2015, when the proceedings were next listed for hearing.

Validation Act

1. On 6 May 2015, the NSW Government introduced and passed the Validation Act. That Act also came into force on the same day. The Act inserted a new Part 13 into Schedule 4 of the ICAC Act. The newly inserted Part operated retrospectively to validate anything done or purporting to have been done by the respondent before 15 April 2015 that would have been, and always to have been, validly done if corrupt conduct for the purpose of the ICAC Act included 'relevant conduct': Validation Act, Sch 1, cl 35. The expression 'relevant conduct' was defined in s 34(1) to mean 'conduct that would be corrupt conduct for the purposes of this Act if the reference in section 8(2) to conduct that adversely affects, or could adversely affect, the exercise of official functions included conduct that adversely affects, or could adversely affect, the efficacy (but not the probity) of the exercise of official functions'.
2. On the same day: 1. the NSW Government announced it would establish an Independent Panel to report on the appropriate scope of the respondent's jurisdiction and any legislative measures that may be required; and 2. having been informed that the Validation Act had been enacted and come into force that day, the respondent's legal representative wrote to the legal representatives of the Cascade Coal Directors to inform them that given the changed circumstances, the respondent would no longer agree to the proposed consent orders.
3. On 8 May 2015, the respondent's legal representative informed the Court of Appeal of the changed circumstances.

2015 Amendment Act

1. On 27 May 2015, the NSW Government commissioned the foreshadowed Independent Panel to review the jurisdiction of the ICAC.
2. In September 2015, the NSW Government passed the Amendment Act, to implement the recommendations made by the Independent Panel. That Act inserted a new s 8(2) into the ICAC Act: Amendment Act, Sch 1, cl 3. It also amended s 13(1)(e) to (j) of the ICAC Act and inserted a new s 13A (i.e. investigation of referrals by the Electoral Commission): 2015 Amendment Act, Sch 1, cll 8 and 10.

Applications for leave to appeal by the Cascade Coal Directors

1. On 16-18 February 2016, the NSW Court of Appeal heard the leave to appeal applications of the Cascade Coal Directors. On 22 June 2016, the Court of Appeal dismissed each application for leave to appeal: see Duncan v Independent Commission Against Corruption [2016} NSWCA 143.

NSW Parliamentary Committee on the Independent Commission Against Corruption (ICAC Parl Committee)

1. On 8 May 2020, the ICAC Parl Committee instituted an inquiry into the reputational impact on an individual being adversely named in investigations conducted by the respondent under the ICAC Act. On 7 October 2020, the respondent responded to a list of questions asked of it by the ICAC Parl Committee in regard to the introduction of the Validation Act and the effect of that Act on the proposed agreed orders in the Cascade Coal Directors Court of Appeal proceedings.

Applicant's access request

1. As I have already noted, the applicant's access application was lodged with the respondent on 23 October 2020.

GIPA Act

1. The object of the GIPA Act is as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. The expression 'government information' is defined in s 4(1) of the GIPA Act to mean 'information contained in a record held by an agency'. The word 'record' is broadly defined in cl 10 of Sch 4 of the GIPA Act.

Making an application for access to government information

1. Division 1 of Part 4 of the GIPA Act contains three provisions relating to the making of an application to a government agency for access to government information. Section 41(1) in this Division provides that an application or request for government information is not a valid application unless it complies with the requirements set out in that subsection.
2. Section 42 in that Division prescribes what additional information a person can include in their access application.
3. Section 43 in that Division provides that an access application cannot be made for 'excluded information' and is in the following terms: 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note - Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.
4. As indicated in the note above, the expression 'excluded information of an agency specified in Schedule 2' is defined in cl 1 of Sch 4 of the GIPA Act to mean 'information that relates to any function specified in the Schedule in relation to the agency'.
5. Clause 2 of Sch 2 of the GIPA Act prescribes information relating to the complaint and investigation functions of specified government agencies to be 'excluded information'. Included in the list of specified government agencies in cl 2 is the respondent and the Office of the Inspector of the respondent. That clause relevantly provides as follows: Schedule 2 Excluded information of particular agencies 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. … 2 Complaints handling and investigative information … The Independent Commission Against Corruption - corruption prevention, complaint handling, investigative and reporting functions. The office of Inspector of the Independent Commission Against Corruption - operational auditing, complaint handling, investigative and reporting functions.
6. The word 'function' is defined in cl 1 of Schedule 4 of the GIPA Act to include 'a power, authority or duty'. The expression to 'exercise a function' is defined in the same clause to include 'perform a duty'.

Public interest considerations

1. Part 2 of the GIPA Act sets out a number of general principles that apply in accessing government information under that Act.
2. Section 5 in Division 1 of Part 2 contains a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) in this Division provides that a person who makes an access application for government information is given a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act, unless there is an overriding public interest against disclosure of the information.
3. Division 2 of Part 2 contains provisions in regard to public interest consideration. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that public interest considerations in favour of disclosure are not limited.
4. Section 14(1) of the GIPA Act provides that the information prescribed in Sch 1 of that Act, is information for which there is a conclusive presumption of an overriding public interest against disclosure. That is, the information prescribed in Sch 1 is information for which access is restricted because there is an overriding public interest against the disclosure of that information, which includes Cabinet information, information falling within the secrecy provisions in specified Acts (e.g. the ICAC Act), Executive Council information, legally privileged information, 'excluded information' and other sensitive information.
5. Clause 6 of Sch 1 makes provision for 'excluded information' and relevantly provides as follows: 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) … (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.
6. As I have noted above, Sch 2 of the GIPA Act sets out what is 'excluded information' of specified agencies, including the respondent.
7. If the information sought is not 'excluded information' or information for which there is otherwise a conclusively presumed public interest against disclosure, the public interest test in s 13 applies: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
8. The permissible and only permissible public interest considerations against disclosure are those prescribed in the Table to s 14 of the GIPA Act.

ICAC Act

1. The principal objects of the ICAC Act are: 2A Principal objects of Act The principal objects of this Act are - (a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body - (i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and (ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and (b) to confer on the Commission special powers to inquire into allegations of corruption.
2. Section 13 of the ICAC Act sets out the principal functions of the respondent and relevantly provides as follows: 13 Principal functions (1) The principal functions of the Commission are as follows - (a) to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that - (i) corrupt conduct, or (ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or (iii) conduct connected with corrupt conduct, may have occurred, may be occurring or may be about to occur, (b) to investigate any matter referred to the Commission by both Houses of Parliament, (c) to communicate to appropriate authorities the results of its investigations, (d) to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct, (e) to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated and the integrity and good repute of public administration promoted, (f) to advise public authorities or public officials of changes in practices or procedures compatible with the effective exercise of their functions that the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt conduct and to promote the integrity and good repute of public administration, (g) to co-operate with public authorities and public officials in reviewing laws, practices and procedures with a view to reducing the likelihood of the occurrence of corrupt conduct and to promoting the integrity and good repute of public administration, (h) to educate and advise public authorities, public officials and the community on strategies to combat corrupt conduct and to promote the integrity and good repute of public administration, (i) to educate and disseminate information to the public on the detrimental effects of corrupt conduct and on the importance of maintaining the integrity and good repute of public administration, (j) to enlist and foster public support in combating corrupt conduct and in promoting the integrity and good repute of public administration, (k) to develop, arrange, supervise, participate in or conduct such educational or advisory programs as may be described in a reference made to the Commission by both Houses of Parliament. (1A) … (2) The Commission is to conduct its investigations with a view to determining - (a) whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has occurred, is occurring or is about to occur, and (b) whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and (c) whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct. (2A) Subsection (2) (a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur. (3) The principal functions of the Commission also include - (a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and (b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations. …
3. As I have already noted, s 13(1)(e) to (j) were amended by the 2015 Amendment Act. In my view nothing turns on this in this application.
4. Section 19 of the ICAC Act, sets out the incidental powers of the respondent. That section relevantly provides: 19 Incidental powers (1) The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions, and any specific powers conferred on the Commission by this Act shall not be taken to limit by implication the generality of this section.
5. Part 5A of the ICAC Act makes provision for the appointment of an Inspector of the respondent. Section 57B in that Part sets out the principal functions of the Inspector. That section relevantly provides as follows: 57B Principal functions of Inspector (1) The principal functions of the Inspector are - (a) to audit the operations of the Commission for the purpose of monitoring compliance with the law of the State, and (b) to deal with (by reports and recommendations) complaints of abuse of power, impropriety and other forms of misconduct on the part of the Commission or officers of the Commission, and (c) to deal with (by reports and recommendations) conduct amounting to maladministration (including, without limitation, delay in the conduct of investigations and unreasonable invasions of privacy) by the Commission or officers of the Commission, and (d) to assess the effectiveness and appropriateness of the procedures of the Commission relating to the legality or propriety of its activities. (2) The functions of the Inspector may be exercised on the Inspector's own initiative, at the request of the Minister, in response to a complaint made to the Inspector or in response to a reference by the Joint Committee or any public authority or public official. …
6. The powers of the inspector are set out in s 57C of the ICAC Act and provides as follows: 57C Powers of Inspector The Inspector - (a) may investigate any aspect of the Commission's operations or any conduct of officers of the Commission, and (b) is entitled to full access to the records of the Commission and to take or have copies made of any of them, and (c) may require officers of the Commission to supply information or produce documents or other things about any matter, or any class or kind of matters, relating to the Commission's operations or any conduct of officers of the Commission, and (d) may require officers of the Commission to attend before the Inspector to answer questions or produce documents or other things relating to the Commission's operations or any conduct of officers of the Commission, and (e) may investigate and assess complaints about the Commission or officers of the Commission, and (f) may refer matters relating to the Commission or officers of the Commission to other public authorities or public officials for consideration or action, and (g) may recommend disciplinary action or criminal prosecution against officers of the Commission.

Material before the Tribunal

1. In support of its case, the respondent relied on the affidavit, sworn on 26 February 2021, by Roy Waldon, solicitor for the respondent and.
2. In his affidavit, Mr Waldon said that Commissioner Rushton SC had made a direction, under s 111(4) of the ICAC Act, permitting him to divulge the information contained in his affidavit and the annexures to it for the limited purpose of: 1. the affidavit (without the annexures marked A and B) being provided to the Tribunal, the applicant and his legal representative; and 2. the annexures to the affidavit to be provided to the Tribunal, in confidence, and not provided to the applicant, his legal representatives, or otherwise.
3. The respondent also claims that the information in the annexures to the affidavit of Mr Waldon is 'excluded information' for which there is a conclusively presumed public interest against disclosure of that information: see GIPA Act s107. Hence, it was appropriate to make a non-disclosure and non-publication order in respect of those annexures, under s 64 of the NCAT Act.
4. The respondent also relied on its written submissions of 26 February 2021 and reply submissions of 29 March 2021.
5. In support of his case, the applicant relied on his affidavit, sworn on 19 March 2021, and written submissions filed with the Tribunal on the same day.
6. In his affidavit, the applicant set out the background to his application. Attached to the applicant's affidavit were a number of documents including the transcript of portions of the hearing before the 2020 ICAC Parl Committee.
7. In accordance with the Information Commissioner's role of assisting the Tribunal on issues of construction, the Information Commissioner also filed and served written submissions that were dated 29 March 2021.

Respondent's case

1. The respondent contends that the 'exemption' for 'excluded information' in Sch 1 and Sch 2 of the GIPA Act is to be given a broad construction. In this regard, the respondent contends that the words 'relates to' are wide words signifying some connection between two subject matters. The respondent went on to submit that the connection or association signified by the words 'relates to' may be direct or indirect and the sufficiency of the connection or association will be a matter for judgment and will depend on the context: HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126 (HP Mercantile) at [34]-[39]. Hence, what constitutes 'excluded information' should be broadly construed.
2. The respondent submitted that in other matters, the Tribunal has made it clear that information does not need to have been generated directly in the exercise of the identified functions in order to relate to those functions. In support of this contention, the respondent cited Miller v Director of Public Prosecutions [2012] NSWADT 38 (Miller) and Bergi v Department of Planning, Industry and Environment [2019] NSWCATAD 243 (Bergi).
3. It is the respondent's contention, that given the subject matter of the Validation Act and the Amendment Act, its internal and external communications involving these legislative instruments will necessarily relate to the scope of its investigative and corruption prevention functions. In this regard, the respondent noted that the Validation Act operated retrospectively to validate past conduct that had occurred in the course of the respondent's exercise of its investigative and corruption prevention functions set out in s 13(1) of the ICAC Act. Hence, the communications sought by the applicant in regard to that Act related to its investigative and corruption prevention functions.
4. The respondent contends that its internal and external communications in regard to the Amendment Bill also related to the scope of its investigative and corruption prevention functions, because the primary purpose of that Bill and the subsequent Act was to clarify its jurisdiction in regard to those functions.
5. The respondent submitted that information that 'relates to' its corruption prevention, investigative and reporting functions is broad enough to cover all of the matters connected with a particular investigation including its outcome, and any further action taken in respect of that investigation. This includes any court proceedings challenging its findings of corrupt conduct made as a result of an investigation. Hence, to the extent the applicant sought access to information relating to the Court of Appeal proceedings, this also 'related' to the respondent's corruption prevention, investigative and reporting functions as those proceedings were 'connected' with a particular investigation, including its outcome.

Applicant's case

1. The applicant submitted that the respondent's interpretation of 'relates to' is 'overly broad' and has the effect of shielding any access request made to it under the GIPA Act. In this regard, the applicant noted that information may relate to more than one matter and where there is a 'tangential or non-substantive connection with the subject matter of the exemption', this is 'insufficient to exempt information from production'.
2. The applicant submits that in construing Sch 2 of the GIPA Act and the words 'relates to', a judgement must be made in the context of the ICAC Act, the GIPA Act, the GIPA request and the nature of the information sought and not by reference to the application of 'relates to' in the context of other government agencies, freedom of information legislation and circumstances.
3. It is the applicant's contention that the respondent's corruption prevention, complaint handling, investigative and reporting functions are all matters that go to the discharge or exercise of its powers, but not the powers themselves, in particular the respondent's conduct in 'lobbying' for increased powers following the Cuneen Decision. The applicant went on to submit that, to the extent the respondent 'lobbied' for the continuation of the 'previously … understood' construction of s 8(2) of the ICAC Act, this was not an exercise of its corruption prevention, complaint handling, investigative and reporting functions.
4. The applicant went on to submit that the respondent, having adopted an advocacy role, 'cannot sensibly suggest that it has acted in the ordinary course of discharging its functions such that the various protections (including for non-disclosure of documents in this setting) must apply.'
5. The applicant contended that, as the information he sought relating to the Validation Act, the Amendment Bill and the Cunneen Decision post-dated the conclusion of the Operation Jasper investigation (including the July 2013 corruption findings made against the Cascade Coal Directors), it could not be said that the information sought related to the respondent's corruption prevention, complaint handling, investigative and reporting functions.
6. The applicant made a similar submission in regard to the information he sought in regard to the Court of Appeal proceedings.
7. Finally, the applicant contended that communications between the respondent and any journalist or media business that relates to or makes reference to Validation Bill, the Validation Act, the Amendment Bill or the Amendment Act are inherently unlikely to relate to the respondent's functions and should be presumed to relate to other activities.

Submissions of the Information Commissioner

1. In her submissions, the Information Commissioner noted that the GIPA Act is concerned with the content of a record (including a document) held by a government agency and not the record itself, or particular categories of record as was the case under its predecessor, the Freedom of Information Act 1989 (NSW) (FOI Act).
2. Nevertheless, certain 'types' of government information (including 'excluded information') are characterised according to the specific terms and meaning given to them by the GIPA Act: Betzis (supra), at [40] and Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98, at [40].
3. The Information Commissioner went on to note that: 1. Section 43(2) of the GIPA Act recognises that an access application is invalid only 'to the extent' the information requested is 'excluded information'. Hence, an agency must distinguish (if applicable) government information that is not 'excluded information' from that which is 'excluded'; 2. Whether information is 'excluded information' in that it 'relates to' the agency's Sch 2 complaint handling and investigation functions is a question of fact; 3. In respect of a decision that an application is not a valid access application by reason of section 43, the agency decision-maker must still engage in a decision-making task with respect to the access application, including in its initial decision as to invalidity. I understand, the Information Commissioner to contend that while an agency to which Sch 2 of the GIPA Act applies may discern from the terms of the access application that the information sought is 'excluded information' this does not extinguish the agency's obligation to examine and consider the information sought. This in turn will require the agency to search for the information for which access is sought in accordance with its obligations under s 53 of the GIPA Act; and 4. As the Tribunal has given a wide threshold to the expression 'relates to', information not necessarily created for a specific or individual investigation matter may nevertheless be captured by what an agency might discern from the terms of an access request. In these circumstances, the Information Commissioner submits it would become relevant for the Tribunal, as the decision-maker on administrative review, to consider the purpose or character of the information the subject of the application in considering whether clause 2 of Schedule 2 applies.

Consideration

1. As I have noted, s 43(1) of the GIPA Act provides that an access application cannot be made to an agency for access to information that is 'excluded information' of the agency. In my opinion, for the reasons that follow the application of this section must be distinguished from that which applies to the application of s 14(1) of the GIPA Act in regard to information that is 'excluded information'. The application of the former has the effect of determining, based on the terms of the person's access application, that the application is an invalid application. The application of the latter has the effect of determining that there is a presumed conclusive overriding public interest against the disclosure of the information 'held' by the agency which has been identified by the agency to fall within the terms of the person's access application.
2. It is accepted that, unlike the former FOI Act, the focus of the GIPA Act is 'government information' and not documents. Nor does the GIPA Act contain expressions such as 'exempt bodies and offices' or 'exempt document': see FOI Act, ss 9 and 25(1)(a) and Sch 1 and Sch 2. However, the concepts underling these expressions were not entirely abandoned in the GIPA Act. For example, the list of 'exempt bodies and offices' in Sch 2 of the FOI are the same government agencies listed in Sch 2 of the GIPA Act. The prescribed function of each body or government agency listed in both Schedules is also the same. The difference between the two schedules is in their application to a request for access to a document under the FOI Act or government information under the GIPA Act.
3. For example, under s 9 of the FOI Act, the listed bodies in Sch 2 were exempt from the operation of that Act in 'in relation to such of the functions of the body or office' as specified or described in that Schedule.
4. Under the GIPA Act, the government agencies listed in Sch 2 are not exempt from the operation of that Act. However, information that 'relates to' the listed functions of the agency in that Schedule is 'excluded information'. Hence, where a person makes an application for access to an agency listed in cl 2 of Sch 2 and the access application specifically seeks access to information that 'relates to' the specified functions of the agency in that Schedule, this is an application for 'excluded information', which by reason of s 43(2) of the GIPA Act, makes the access application an invalid application.
5. In my opinion, where an agency relies on a 43(2), there is no obligation on the agency to first conduct a search for the information it holds that is responsive to the access application of the applicant. However, the agency does need to be satisfied that the terms of the access application is in fact an application for 'excluded information' in that the information sought 'relates to' the specified functions of the agency in Sch 2 of the GIPA Act. On administrative review, the onus is on the agency to prove that this is the case.
6. An application of this kind was the subject of review in DNM v NSW Ombudsman [2018] NSWCATAD 186. In that application, the applicant had sought access to 'All records your office holds relating to the monitoring exercise undertake by your office as communicated by letter of 24 June 2014' held by the respondent. The letter to which the applicant referred was the letter he had received from the Deputy Ombudsman regarding 'Monitoring of public interest disclosures (PIDs) and purported PIDs made to [an agency]'.
7. The Ombudsman determined that DNM's application was not a valid application because the information for which he sought access 'related to' its 'complaint handling, investigative and reporting functions': GIPA Act, s 43(2), Sch 2 cl 2. The reporting function relied on by the Ombudsman was that contained in s 6B of the Public Interest Disclosures Act 1994 (NSW).
8. On review, the Tribunal identified the issue for determination as being whether the words 'to monitor and provide reports' in s 6B(1)(e) of the Public Interest Disclosures Act assigns a single function on the Ombudsman or whether they are separate functions: DNM v NSW Ombudsman [2018] NSWCATAD 186 at [46]. At [55] and [56], the Tribunal found it was a single function and that the information for which the applicant sought access in his access application was an application for 'excluded information', as defined in cl 2 of Sch 2 of the GIPA Act.
9. On appeal, at [35], the Appeal Panel said that the Tribunal should have identified the issue more broadly by asking whether the requested information 'related to' the Ombudsman's 'excluded information functions': DNM v NSW Ombudsman [2019] NSWCATAP 7 (DNM).
10. Where an access application made to an agency listed in cl 2 of Sch 2 is not found to be invalid under s 43(2), as noted by the Information Commissioner, the agency is required to deal with that application in accordance with the provisions in Division 3 and 4 of Part 4 of the GIPA Act. This includes the obligation under s 53(2) to conduct reasonable searches for the information sought and to make a determination in regard thereto under s 58. The determinations that can be made are set out in s 58 of the GIPA Act and includes a decision to refuse to provide access to the information sought because there is an overriding public interest against disclosure of the information sought: GIPA Act s 58(1)(d).
11. As I have already noted, s 14(1) of the GIPA Act provides that 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. Included in this Schedule is 'excluded information', which has the same meaning as that contained in s 43(2): see GIPA Act, Sch 1 cl 6. However, that clause (i.e. cl 6 in Sch 1) has a wider application to that of s 43(2) in that it also applies to 'excluded information' of an agency listed in cl 2 of Sch 2 that is held by another agency: see for example Coppock v Willoughby City Council [2021] NSWCATAD 166 and Hooper v Willoughby City Council [2021] NSWCATAD 208.
12. Clause 6 in Sch 1 of the GIPA Act also contains a proviso in that it does not apply where the agency has consented to the disclosure of the information in issue. The expression 'disclose information', is defined in cl 1 of Schedule 4 of the GIPA Act to include 'make information available and release or provide access to information'.

Is the applicant's access application an application for access to excluded information of the respondent?

1. It is accepted that the expression 'relates to' is of broad import.
2. I note that in HP Mercantile, at [35], the Full Federal Court said: 35 … [It] was common ground that the words "relates to" are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found.
3. In that case, the relevant legislative context was the Commonwealth GST legislation.
4. In this case, the legislative context is the GIPA Act and the ICAC Act. However, the same principles were applied by the Appeal Panel in DNM where, at [36], the Appeal Panel noted (some citations omitted): 36 … [the] context will determine the matters to which it extends: …. As French CJ and Hayne J held in Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [25], the context includes both the legislative context and the factual context: It may also be accepted that 'the subject matter of the enquiry, the legislative history, and the facts of the case' are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that . . . (there is the necessary degree of connection) (Words in brackets added.)
5. Although the object of the GIPA Act is to open 'government information' to the public in order to maintain and advance a system of responsible and representative democratic Government, as noted by the Appeal Panel, at [39], in DNM, the same object is equally achieved by restricting access when there is an overriding public interest against disclosure of government information. In my opinion, for the reasons set out above, s 43(2) is consistent with this restriction.
6. The expressions 'complaint handling, investigative and reporting functions' in cl 2 of Sch 2 of the GIPA Act are in general terms and not by reference to any specific legislative provision: DNM, at [46] and [47]. It is accepted that these expressions should be given their natural meaning: Bergi (supra), at [23] - the Tribunal went on to say that, based on cases in other related fields, 'a significant breadth of information is capable of falling within' these terms.
7. There is no dispute that the functions of the respondent includes investigating allegations of corruption and making findings of corrupt conduct as a result of such investigations or making recommendations on what action should be taken in regard thereto.
8. As I have noted, s 19 of the ICAC Act gives the respondent the power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions.
9. I do not agree with the applicant that the respondent's investigatory functions end when findings are made. Section 18 of the ICAC Act specifically gives the respondent the power to continue an investigation or furnish reports in connection with an investigation despite any proceedings before a court or tribunal. Additionally, as demonstrated in this case, adverse findings made by the respondent against a person the subject of an investigation can be the subject of judicial review or appeal. The respondent is the respondent to such proceedings and the subject matter of those proceedings are the findings that were made by the respondent in its investigation of corrupt conduct under the ICAC Act.
10. As noted in the introduction, the 15 categories of information sought by the applicant in his access application fall into four distinct groups as follows: 1. Group 1 internal and external communications that relate to or make reference to the Validation Act and the Amendment Bill (category (1) to (9) and (12)); 2. Group 2 any communication between the respondent and the Supreme Court in regard to the proceedings initiated in the Court by the Directors of Cascade (category (10)); 3. Group 3 any document that records any consideration of the impact of the 15 April 2015 Cunneen Decision of the High Court on the July 2013 findings of the respondent made against the Directors of Cascade Coal, pursuant to an investigation conducted by the respondent under the ICAC Act (category (13)); and 4. Group 4 any document that contains any consideration of or refers to the effect of the Validation Act or Amendment Bill on: 1. the July 2013 findings of the respondent made against the Directors of Cascade Coal (category (14) and (15)), or 2. the Court of Appeal proceedings initiated by the Cascade Coal Directors (category (11)).
11. In my opinion, the information sought by the applicant in his access application in the Group 3 and Group 4 categories (i.e. categories (11), (13), (14) and (15)) is information that 'relates to' the respondent's 'corruption prevention and investigative' function and is thereby 'excluded information' under cl 2 of Sch 2 of the GIPA Act.
12. I make this finding despite the respondent having disclosed that it does not hold any information in regard to category (11) or (15), because the information sought in the applicant's access application specifically seeks information that has a direct connection to the respondent's investigation, conducted pursuant to its functions under s 13 of the ICAC Act, and the findings it made against the Cascade Coal Directors as a result of the investigation.
13. Hence, I am satisfied that, pursuant to s 43(2) of the GIPA Act, the access application of the applicant is invalid to the extent it seeks the information specified in categories (11), (13), (14) and (15) of his access application.
14. For completeness I note that the respondent has disclosed that it does not in any event hold any information that is responsive to the information sought in category (11) and (15). [CONFIDENTIAL - NOT FOR PUBLICATION].
15. However, I am not satisfied that the information sought by the applicant in the Group 1 categories (i.e. category (1) to (9) and (12)) is information that relates to the respondent's 'corruption prevention and investigative' function and is 'excluded information' under cl 2 of Sch 2 of the GIPA Act.
16. The information sought in this group is information that relates to the Validation Act and Amendment Bill. As is evident from the April 2015 press release issued by the respondent following the Cunneen Decision, the preparation of legislative instruments is not a function of the respondent, even where the legislation concerns the scope of its legislative powers and functions: see also ICAC Act s 2A which provides that the principal object of that Act is to constitute a Commission that is an 'independent and accountable body'.
17. Accordingly, I am not satisfied that the decision of the respondent in regard to Group 1 categories (i.e. category (1) to (9) and (12)) is not the correct and preferable decision and should be set aside.
18. By reason of my findings above, I also find that the applicant's access application in regard to this Group of categories is a valid application.
19. However, as I have explained above, this does not mean that the communications held by the respondent that are responsive to this Group of categories do not contain 'excluded information', or information for which there is another presumed conclusively overriding public interest against disclosure.
20. As this is a ground on which the respondent relies in its alternative case, I have dealt with this issue in more detail below.
21. Finally, the information sought in Group 2 (i.e. category (10)) of the applicant's access application is a little difficult to understand. I assume that the applicant only seeks access to communications between the respondent and the Supreme Court that was not provided to the applicant or his clients during the course of the proceedings, initiated by the Cascade Coal Director's, in that Court at first instance and their subsequent application for leave to appeal. That is, the applicant is only seeking access to any communication between the respondent and the Supreme Court that had not been provided to the Cascade Coal Directors.
22. Whether I am correct or not in my assumption, for the reasons set out above in regard to the Group 3 and Group 4 categories, I would make a similar finding that this is also an invalid application as the information sought in this category is also 'excluded information' of the respondent (i.e. it is information that relates to the respondent's 'corruption prevention and investigative' functions).
23. Again, I make this finding despite the respondent having disclosed that it does not hold any information falling within this Group (i.e. Group 2), because the issue is not whether the respondent holds the information sought. Instead, it is a question as to whether the actual terms of the applicant's access application is such that it seeks access to information that 'relates to' the respondent's 'corruption prevention and investigative' functions .
24. In conclusion, I find that the decision of the respondent in regard to the information sought by the applicant in category (10), (11), (13), (14) and (15) of his access application is correct and preferable decision and should be affirmed in this respect.

Do the documents located by the respondent include excluded information of the respondent?

1. As I have noted in the introduction, the respondent has disclosed that in the Group 1 categories, it did not hold any information falling within category (6). However, it did hold information falling within the remaining categories and in some cases a single document was responsive to more than one category. The responsive documents are identified in confidential Attachment A to the affidavit of Mr Waldon and a copy of each document is included at confidential Attachment B to Mr Waldon's affidavit.
2. I have carefully considered the information in each document the respondent has identified as being responsive to the Group 1 categories, other than category 6, in the applicant's access application.
3. For the reasons set out above, I am satisfied that the information in the documents that are responsive to categories (1) to (5) and (7) to (9) of the applicant's access application is 'excluded information' in that it is information that 'relates to' the respondent's 'corruption prevention' and 'investigative' functions under the ICAC Act, and for which the respondent has not consented to the disclosure thereof: GIPA Act Sch 1 cl 6(1).
4. [CONFIDENTIAL - NOT FOR PUBLICATION].
5. Hence, I am satisfied that there is a conclusively presumed overriding public interest against the disclosure of this information: GIPA Act s 14(1).
6. Accordingly, I find that the decision of the respondent in regard to the information in category (1) to (5) and (7) to (9) of the applicant's access application is not the correct and preferable decision and should be set aside. Instead thereof, I find that the correct and preferable decision in regard to the information in the documents that are responsive to category (1) to (5) and (7) to (9) of the applicant's access application is to refuse access to that information because there is an overriding public interest against disclosure of that information: GIPA Act, s 58(1)(d).
7. In the event I am wrong in my findings at [102] and [103] above, I would make a similar finding in regard to the information in the documents to which these paragraphs refer.
8. This leaves the documents the respondent has identified as being responsive to category (12) of the applicant's access application. These are communications between the respondent and any journalist or media business.
9. I accept that there may be some information contained in these communications for which there is an overriding public interest consideration against disclosure either by reason of s 14(1) or 14(2) of the GIPA Act. There may also be an argument that the circumstances in which the communications were made that there has been a disclosure of the information, or the respondent consented to its disclosure.
10. In any event, in my opinion, the respondent should be given an opportunity to reconsider its decision in regard to the information in these documents.
11. Accordingly, for the reasons set out above, I find that the decision of the respondent in regard to the information in category (12) of the applicant's access application is not the correct and preferable decision and should be set aside and remitted, under s 63(3)(d) of the ADR Act for reconsideration by the respondent in accordance with these reasons for decision.

Conclusion

1. For the reasons set out above, I have found: 1. the decision of the respondent in regard to the information sought by the applicant in category (10), (11), (13), (14) and (15) of his access application is correct and preferable decision and should be affirmed in this respect; 2. the decision of the respondent in regard to the information in category (1) to (5) and (7) to (9) of the applicant's access application is not the correct and preferable decision and should be set aside. Instead, I find that the correct and preferable decision in regard to the information in the documents that are responsive to category (1) to (5) and (7) to (9) of the applicant's access application is to refuse access to that information because there is an overriding public interest against disclosure of that information; 3. the decision of the respondent in regard to the information in category (12) of the applicant's access application is not the correct and preferable decision and should be set aside and remitted, pursuant to s 63(3)(d) of the ADR Act for reconsideration by the respondent in accordance with these reasons for decision.

Orders

1. Accordingly I make the following orders: 1. The decision of the respondent in regard to the information sought by the applicant in category (10), (11), (13), (14) and (15) of his access application is affirmed. 2. The decision of the respondent is otherwise set aside and the following decision and orders are made: 1. A decision to refuse access to the information in the documents that are responsive to category (1) to (5) and (7) to (9) of the applicant's access application because there is an overriding public interest against disclosure of that information. 2. Pursuant to s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW), remit the decision of the respondent in regard to the information sought by the applicant in category (12) of his access application. 1. Disclosure to the applicant of the confidential material at Attachment A and Attachment B to the affidavit of Roy Waldon, sworn on 26 February 2021, is prohibited, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Publication of the confidential material at Attachment A and Attachment B to the affidavit of Roy Waldon, sworn on 26 February 2021, is prohibited, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW)

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 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: 02 September 2021