DNM v NSW Ombudsman

Material before the Tribunal

1. In considering my decision I have had regard to the following material: 1. DNM's access application to the Ombudsman dated 11 September 2017; 2. Letter dated 24 June 2014 from the Deputy Ombudsman to DNM; 3. Letter from Ombudsman to DNM dated 18 September 2017 finding DNM's access application invalid because it sought excluded information; 4. Email from DNM to the Office of the Ombudsman, dated 20 September 2017, seeking internal review together with statement of reasons in support; 5. Internal review decision dated 11 October 2017 made by Professor John McMillan, the Acting NSW Ombudsman; 6. Application for administrative review by DNM received at the Tribunal on 19 January 2018 together with report of the Information Commissioner dated 19 December 2017; 7. DNM's legal arguments with attachments filed 18 April 2018 ("the applicant's first arguments"); 8. DNM's written legal arguments filed 2 July 2018 ("the applicant's second arguments"); 9. Respondents submissions filed 20 March 2018. 10. Information Commissioner's submissions filed 2 May 2018.

Decision on papers

1. This matter was referred to me to determine on the papers in accordance with an order made by Principal Member Titterton. Before proceeding to determine the matter, I have satisfied myself, as required by s 50(1) of the CAT Act, that this matter can be adequately determined in the absence of the parties by considering the written submissions and material lodged with the Tribunal.

The NSW Ombudsman and the Public Interest Disclosures Act

1. The Public Interest Disclosures Act 1994 (NSW) ( the PIDA Act ) is an act which provides for the making by public officials of disclosures relating to corrupt conduct, maladministration and waste in the public sector and related agencies. It provides, among other things, for how and to whom such disclosures are to be made for the protection of the person making the disclosure and for the investigation of disclosures. It is intended to protect, among other things, public services whistle blowers in NSW.
2. The objects of the PIDA Act are set out in s 3: (1) The object of this Act is to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration, serious and substantial waste, government information contravention and local government pecuniary interest contravention in the public sector by: (a) enhancing and augmenting established procedures for making disclosures concerning such matters, and (b) protecting persons from reprisals that might otherwise be inflicted on them because of those disclosures, and (c) providing for those disclosures to be properly investigated and dealt with. (2) Nothing in this Act is intended to affect the proper administration and management of an investigating authority or public authority (including action that may or is required to be taken in respect of the salary, wages, conditions of employment or discipline of a public official), subject to the following: (a) detrimental action is not to be taken against a person if to do so would be in contravention of this Act, and (b) beneficial treatment is not to be given in favour of a person if the purpose (or one of the purposes) for doing so is to influence the person to make, to refrain from making, or to withdraw a disclosure.
3. The Ombudsman has a number of roles under the PIDA Act, including receiving disclosures about maladministration. Important, for the purposes of the current application, is the oversight role given to the Ombudsman by s 6 of the PIDA Act. The section provides: 6B Oversight of Act by Ombudsman (1) The Ombudsman has the following functions in connection with the operation of this Act: (a) to promote public awareness and understanding of this Act and to promote the object of this Act, (b) to provide information, advice, assistance and training to public authorities, investigating authorities and public officials on any matters relevant to this Act, (c) to issue guidelines and other publications for the assistance of public authorities and investigating authorities in connection with their functions under this Act, (d) to issue guidelines and other publications for the assistance of public officials in connection with the protections afforded to them under this Act, (e) to monitor and provide reports (monitoring reports) to Parliament on the exercise of functions under this Act and compliance with this Act by public authorities (other than investigating authorities in respect of their functions as investigating authorities), (f) to audit and provide reports (audit reports) to Parliament on the exercise of functions under this Act and compliance with this Act by public authorities (other than investigating authorities in respect of their functions as investigating authorities), (g) to provide reports and recommendations to the Minister about proposals for legislative and administrative changes to further the object of this Act. Note. The Ombudsman is also chairperson of the Steering Committee. (2) A monitoring report is to be provided once every 12 months. An audit report is to be provided whenever the Ombudsman considers it desirable to do so and at least once every 12 months. (3) The Ombudsman must, as soon as practicable after 30 June in each year, prepare and provide a report to Parliament on the Ombudsman's activities under this section for the preceding 12 months. (4) A report to Parliament under this section can be provided by being included in the Ombudsman's annual report under section 30 of the Ombudsman Act 1974 or can be provided as a separate report and provided to the Presiding Officer of each House of Parliament. (5) Section 31AA of the Ombudsman Act 1974 applies to a report to Parliament under this section as if the report were a report made or furnished under Part 4 of that Act.
4. These are additional to and supplementary to the Ombudsman's functions and powers under the Ombudsman Act 1974 (NSW).

The Government Information (Public Access) Act 2009

1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in s 3(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. In exercising functions under the Act s 3(2) instructs that - "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."
3. "Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.'
4. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14).
5. Section 14(1) provides that: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
6. Information of the kind specified in Sch 1, is therefore the subject of a conclusive presumption that there is an overriding public interest against disclosure ("a conclusive presumption"). Sch 1 is not short. Among the information it provides is the subject of a conclusive presumption is excluded information.
7. Cl 4 of Sch 1 provides: (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
8. Schedule 2 specifies what constitutes excluded information by reference to whether the information relates to specified functions of nominated agencies . The opening note to the Schedule says: 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. With respect to the office of Ombudsman cl 2 of Sch 2 provides, among other things: The office of Ombudsman - complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993).
9. Where a person seeks access to excluded information s 43 of the GIPA Act provides that: (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.
10. In the present case the Ombudsman decided that the information DNM sought is excluded information of the office of the Ombudsman specified in schedule 2 of the GIPA Act; i.e. "information that relates to any function specified in that Schedule in relation to the agency." (see the interpretive provisions in Schedule 4). It was considered that the monitoring of PIDs at the agency which the Deputy Ombudsman established under section 6B(1)(e) of the PIDA Act, as advised to DNM in the letter of 24 June 2014, fell under the complaint handling, investigative and reporting functions of the Ombudsman. As a result the Ombudsman considered that information DNM sought is excluded information of the office of the Ombudsman, and that DNM's access application was not valid as a consequence.
11. That remains the core issue in contention in this case.
12. With respect to other government information which not subject to a conclusive presumption, the GIPA establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 13 then provides that - 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.
13. Section 14 (2) then provide - (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information
14. It is not necessary to discuss how the provisions relating to the identifying and weighing of competing public interests for and against disclosure work, because in this case the issue for the Tribunal on administrative review is whether or not DNM's access application is invalid because it sought access to excluded information.
15. Part 5 of the GIPA Act (s 80 - 112A) is concerned with the various forms of review of decisions available under the GIPA Act, form internal review through to administrative review by the Tribunal under the Administrative Review Act 1997 (NSW).
16. Section 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides - "The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) a decision that an application is not a valid access application, (b) …
17. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88).
18. Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92), including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).
19. Thirdly, a person aggrieved may seek a review by the Tribunal (s 100). When this provision is read with s 28 and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ( the CAT Act), they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)).
20. Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98). In the present case DNM has sought every type of review possible, before asking for administrative review by the Tribunal.
21. In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides - "(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review."
22. The Tribunal's function on review under s 63 of the ADR Act is to make the correct and preferable decisions having regard to the material before it and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

Consideration

1. As already noted all parties have filed written submission in support of their respective positions.
2. The Ombudsman's submissions seek to traverse issues that go beyond what is necessary for the Tribunal to determine the issue in this case; which is whether DNM's access application sought excluded information and was therefore invalid. I have therefore, not considered the Ombudsman's submissions that the Ombudsman and officers are not competent or compellable to give evidence in this proceeding. It is not necessary to decide that matter; this should not be taken as indicating agreement with the submission. The submissions insofar as they relate to the matter for decision are discussed below.
3. DNM's submissions consist of his first arguments (40 pages, single typed, plus attachments) and second arguments (23 pages, single typed). Mention needs to be made of a number of matters which DNM raised in his written arguments that are not central to the issue of whether or not his access application sought access to excluded information of the office of the Ombudsman.
4. First, DNM sought to have the Respondent's submissions disregarded due to the Ombudsman's failure to comply with the direction that they be served on DNM, which Legal Counsel admits did not occur on time, to DNM's prejudice. A consideration of the procedural history of the matter, however, demonstrates the Tribunal and the other parties sought to remedy any prejudice DNM suffered, by enabling him to file further arguments and then extending the time he was given to do so significantly. DNM did not ask the Tribunal to punish the Respondent by disregarding its submission when the order allowing him to file further submissions on 8 May 2017 was made. His request for time to be extended for him to make those submission (which he made later in May) did not contain any mention of him seeking to exclude the Ombudsman's submissions. The first time he asked for the Ombudsman submissions to be rejected (and a punishment imposed) was when he was writing the last submissions, at a time when there was no clear opportunity for the Ombudsman to respond.
5. In my view, the issue of costs aside, it is now too late for DNM to ask the Tribunal to exact a penalty on the Ombudsman for the prejudice he has suffered , and it would be unjust and unfair to do so, when action has already been taken to remedy the prejudice he suffered, and the Ombudsman has no opportunity to respond.
6. DNM spent considerable time in his written arguments attacking the honesty and professional integrity of legal counsel for the Ombudsman. He did so in a manner which would lead me refer his conduct to an ethics committee were he a qualified legal representative. A detailed consideration of DNM's numerous complaints about the conduct of legal counsel for the Ombudsman will not advance the determination of the real issue in this proceeding, which is essentially a relatively simple matter of statutory interpretation. Attacks on the credibility of individuals are not of assistance when discerning the meaning of statutory instruments: the focus is on the language in issue, the statutory context and statutory purpose.
7. At the heart of the issue for determination in this case is the meaning of the words 'to monitor and provide reports (monitoring reports)' in s 6B(1)(e) of the PIDA Act (set out in full in paragraph [16] above). The Ombudsman takes the view that this provision assigns a single function: a monitoring and reporting function. This, the Ombudsman argues, falls within the 'complaint handling, investigative and reporting functions' of the Ombudsman's office and is therefore excluded information of the office of the Ombudsman under the GIPA Act, with the result that DNM's access application is invalid under s 43 of the GIPA Act. DNM on the other hand says that this involves an incorrect reading of s 6B(1)(e) of the PIDA Act, which he says gives the Ombudsman two separate functions, a monitoring and a reporting function. DNM says that only the reporting function falls within the 'complaint handling, investigative and reporting functions' of the Ombudsman's office referred to in cl 2 of sch 2 of the GIPA Act.
8. Relying on the letter from the Ombudsman of 24 June 2014, DNM then argues that the Deputy Ombudsman only referred to it being appropriate 'for this office to exercise its monitoring power' and that there was no evidence of the Ombudsman intending to use, or actually using, its reporting powers with respect to that monitoring. As a consequence DNM submits that the monitoring conducted by the Ombudsman does not fall within that offices 'complaint handling, investigative and reporting functions' and is not excluded information as a consequence.
9. Central to DNM's submission is that the word 'and' in s 6B(1)(e) not be given its ordinary and general accepted conjunctive meaning but instead be read disjunctively, as if it meant 'or'. I have grave difficulties with this submission for a number of reasons.
10. First there is nothing in the context of the section, or indeed of the PIDA Act as a whole, that suggests that the word 'and" in the sub-section should be given anything other than its ordinary and general meaning. Indeed, the textual indications point the intention being that 'and' in the context, be read conjunctively. The precise words used in the sub-section are "to monitor and provide reports (monitoring reports)'. The fact that the legislature saw fit to name the product of that function, 'monitoring reports', points very strongly to the function being a single one: 'to monitor and report." S 6B(2) then reinforces this by providing how often the Ombudsman must provide monitoring reports. Further, in the context of s 6B(1)(e), had the intention been to assign two separate functions in the Ombudsman, the draftsman could readily have made that clear by either having separate sub-sections for each function or using express words, such as "to monitor and to report."
11. DNM argued that the words 'to monitor and report' in s 6B(1)(e) constituted a list, which should be read disjunctively. He relied on Re Licensing Ordinance (1968) 13 FLR 143 where Blackburn J noted cases: … in which there was a list of items, the items being joined by 'and' and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word 'and', which is used to join the items in the list, is truly cumulative; it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorize the class, as a whole, as a class of alternatives … the word 'and' inside the class does not have dispersive or alternative force; its force is wholly cumulative; it is the words outside the class which give the dispersive effect.
12. In the present case there is not a list, but two conjoined descriptors of a function: "to monitor and report." If one were to accept that those words constituted a list, there are no governing words in the section that words constitute a class of alternatives. That was the case Associated Newspapers v Wavish (1956) CLR 226 where the words 'includes', before two enumerated lists which were joined by an 'and', was found to evidence a legislative intention that the provision be read disjunctively. That is not the case here. Further there is nothing in the objects of the PIDA Act, or in the statute as a whole, which points to a legislative purpose which requires that s 6B(1)(e) be given other than its ordinary and general meaning.
13. It follows that I agree with the Ombudsman that a single function 'to monitor and report' is assigned to him by s 6B(1)(e). That is not to say that in other contexts monitoring and reporting on other matters may be separate functions of an agency. That is not the case here.
14. DNM advanced and relied on a large number of extrinsic materials (from parliamentary speeches and learned articles concerning the GIPA Act to UN Declarations) which he said pointed to a legislative intention that his interpretation is correct. Apart from making two comments concerning that evidence I do not intend to embark on the exercise of considering them as an aid to interpretation of s 6B(1)(e) of the PIDA Act.
15. The extrinsic evidence advanced by DNM relates to the GIPA Act, not the PIDA Act. It has no utility when considering the PIDA Act. DNM has not asked me to consider specific material, such as the second reading speech relating to the PIDA Act. Secondly, as both a literal and purposive interpretation of s 6B(1)(e) of the PIDA Act lead to the same interpretation of the words "to monitor and record", this is not a case where the Tribunal would readily engage with a consideration of relevant, extrinsic evidence in the light of the following passage from the ADT Appeal Panel in Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10 that [36] - By virtue of sub-s (2) the second reading speech, or other extrinsic material, may be `considered' in the interpretation of the provision of an Act. But in our view it is not appropriate to proceed to a consideration of the second reading speech, or other extrinsic document, without first seeking to interpret the provision in issue. It is necessary first to examine and analyse the provisions of the Act for the purpose of determining whether or not there are good reasons to resort to the second reading speech, or other extrinsic document: see esp. Saraswati v R (1991) 172 CLR 1 at 23 per McHugh J; Cooper Brookes (Wollongong) Pty Ltd v Fed Cmr Taxation (1981) 147 CLR 297 per Gibbs CJ at 304 and 305; and for a useful discussion see also Oxley & Anor v Imperial Charter Pty Ltd (1996) NSW Conv R para 55-783 at pp 56,008-9 (NSW Commercial Tribunal)."
16. As a result all the above I am satisfied that the Ombudsman's function under s 6B(1)(e) of the PIDA Act is a single function under which the Ombudsman is empowered to monitor and report.
17. One then turns to the question of whether information relating to that function of the Ombudsman is excluded information for the purposes of the GIPA Act: see Cl 2 of sch 2. There is agreement among the parties that the words 'relates to a function" in the note to sch 2 should be given it usual wide meaning: see Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130, at [59] and Sinclair v Psychology Council [2017] NSWCATAD 8 at [71]. I accept that is the case. I accept that the information DNM requested in his access application, being, "All records your office holds relating to the monitoring exercise undertake by your office as communicated by letter of 24 June 2014", relates to the function given to the Ombudsman by s 6B(1)(e) of the PIDA Act
18. As a consequence that information is excluded information for the purposes of the GIPA Act and DNM's access application is invalid. As a result I will affirm the Ombudsman's decision that DNM's access application is invalid.
19. Before concluding, I note that the Information Commissioner made some submissions regarding the applicability of my decision in Yee v Medical Council of NSW [2017] NSWCATAD 370. I do not think that case analogous to the present circumstances. There the Tribunal was dealing with functions exercised by another agency under a co-regulatory model. Here the functions under the PIDA Act are expressly given to the Ombudsman by that Act.

Costs

1. DNM claims costs because he was forced to do additional work because he was not served with the Ombudsman's original submissions in time. As a result he wrote an additional 23 pages of submissions. He acknowledged that he is not entitled to legal costs and suggests that he might recover his application fee from the Ombudsman by way of costs
2. Costs in the Tribunal can only be awarded where there are special circumstances. Section 60 provides: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
3. In the present case and without hearing from the Ombudsman and the Information Commissioner, I am not persuaded that there are special circumstances given: 1. the fact that, in my view, DNM's administrative review was destined to fail; 2. many of his arguments were irrelevant or misconceived; 3. despite DNM's assertions to the contrary, I am not persuaded that the Ombudsman's set out to deliberately disadvantage him in the conduct of the proceedings; 4. the dismissal of his application on the merits; 5. the very small sum he would likely obtain if he were to get a costs order in his favour; 6. the extra costs and time involved in inviting submissions on costs; and 7. the guiding principle of the CAT Act that requires the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings: see s 36(1).

Conclusion 1. The decision of the Ombudsman that DNM's application was invalid is affirmed. 2. No order as to costs.

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: 20 August 2018