These proceedings concern a request that Hugo Flores (the applicant) made to TAFE NSW (the respondent) on 17 November 2021 for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act) relating to himself, as follows:
(a) Complete HR file including contract of employment, documents evidencing changes to his employment, the terms under which he is currently employed, and all correspondence held by HR in relation to him between HR and any other staff member employed by TAFE NSW between 2015 to date;
(b) A job description for position 80018648 and all associated documents;
(c) All records in relation to him held by health and safety including documents in relation to all claims for workers compensation and correspondence between health and safety and any other staff member employed by TAFE NSW and external service providers;
(d) All risk assessments undertaken in relation to the role of class support in the bricklaying team and the carpentry team.
(e) All documents held by staff member (SR) in relation to the FM&L review undertaken this year which deemed his position out of scope.
(f) All email correspondence, notes, text messages, memos or any other recorded medium held by staff member SR in relation to him between 2015 to date.
(g) All email correspondence, notes, text messages, memos or any other recorded medium held by staff member (BJ) in relation to him between 2018 to date.
(h) All policies in relation to:
i. Anti-discrimination;
ii. Transitioning permanent staff members between roles within TAFE; and
iii. Procedures to be followed when such an event described in (a) occurs.
On 20 December 2021, the respondent issued a Notice of Decision under the GIPA Act, which stated, relevantly:
I further advised that, if a time estimate indicates this GIPA will be time-intensive and thus attract high processing charges, it is open to the agency to 'stop the clock' and ask for a 50% advance deposit on processing charges.
Request for 50% deposit on processing charges
An agency may require an applicant to make an advance payment of a processing charge, called an 'advance deposit' (GIPA Act section 68(1)).
This notice must include a statement of the processing charges for work already undertaken by the agency, plus a statement of the estimated processing charges for work still required (section 68(3)(a) and (b)).
So far it has taken more than fifteen (15) hours to process the application. (Note: Your personnel file will be provided free: that search time is not charged to you).
I estimate it will take at least another twelve (12) hours to process your GIPA. This is needed to complete the email archive searches, review all the located information, conduct any additional third party consultation, redact third party information, and write the Notice of Decision.
At this state, I estimate that will cost around $800 to complete your GIPA. This is calculated by the total hours spent to date plus the estimated hours still needed to complete the application, at $30 per hour. This table explains the time and charges:
The respondent set out two tables, which were described as follows:
1. Part 1: Actual time to date dealing with the application. This indicated actual processing costs to date of $450.50;
2. Part 2: Future time estimated to deal with the application. This indicated future estimated processing costs of $382.50. After deducting the application fee, the balance was $803, of which 50% was $401.50.
The respondent stated that the 50% advance deposit was payable by 1 February 2022, failing which it may refuse to further deal with the application. It also stated, relevantly:
If you pay an advance deposit, and the final processing charges are (not?) mote than the deposit you paid, you are entitled to a refund of the extra (section 71(1).
Special note: The estimated total cost above is not definite. It is possible the total processing charges will be higher than $803.00
If TAFE NSW does not decide the application by the due date, you are entitled to a refund of the advance deposit (section 71(2))…
Consideration of financial hardship
In your GIPA application, you indicated that you seek a discount on the basis of financial hardship under the GIPA Act and the Regulations.
According to advice from People & Culture, you are currently employed by TAFE NSW, and being paid (i.e., not currently on leave without pay etc). (This advice was provided solely for the purposes of processing your GIPA application). Can you please advise if this advice is correct or not, because this provides relevant evidence regarding 'financial hardship'.
If the agency is satisfied on the financial hardship claim, you are entitled to a 50% reduction in processing charges. Following Tribunal decisions, agencies are required to apply the 50% reduction at the end of decision making, when the Notice of Decision is finalised..
The respondent advised the applicant of his rights of review and attached a copy of the IPC's Fact Sheet.
On 2 June 2022, the respondent wrote to the applicant, noting that on 16 February 2022, he sought a review of its decision by the IPC and that on 19 May 2022, the IPC made recommendations in a review report. It stated that it was taking action in response to the IPC's recommendations and that it:
1. Confirmed its decision that an advance deposit of $401.50 was payable by 30 June 2022;
2. Advised that the "clock is stopped" on processing the application and will re-start when the advance deposit is received; and
3. Advised him of his rights of review.
In an undated "Notice of Decision - Internal Review", which was apparently issued at the same time as the letter dated 2 June 2022, the respondent stated that it was making a new decision in response to the IPC's recommendations. It noted that the applicant narrowed the scope of the GIPA application on 16 February 2022 by deleting items (d), (e) and (g) of the GIPA request. It estimated that processing charges would be around $802 and stated that while some of the information sought was personal information, some of it was not personal information. It stated, relevantly:
Processing charges for up to twenty (20) hours' time spent on any processing of personal information requests must be waived (s 67 GIPA Act). I have determined that 31 minutes of processing time on the Application to date has been dedicated to processing information that meets the definition of 'personal information' under the GIPA Act. You have not been charged for this processing time.
There will likely be additional information that can be classified as personal (including your health information). as explained further in Section 6 of this letter, where information contains a minority of personal information, the percentage of information which is personal contained in that request will be deducted from processing charges in relation to the time spent processing that request (up to a total of 20 hours). This approach is consistent with decisions of the Tribunal.
The respondent stated that it "considered and agreed with" the timeframes set out in the tables to its decision dated 16 February 2022, and it decided that: (1) item (a) is personal information; (2) item (b) is not personal information; (3) the parts of item (c) which reveal his medical and health or employment information are personal information; but (4) items (f) and (g) are business information of the respondent which: (a) does not meet the definition of personal information; and (b) falls within the exception 4(3)(b) because the information reveals nothing more than the fact that the person was engaged in the exercise of public functions.
Accordingly, the respondent stated that information within items (c), (d) and (g), which is personal or health information, will be deduced from the final processing charges. Otherwise, it confirmed its decision dated 16 February 2022 with respect to the issue of financial hardship.
On 21 June 2022, the applicant filed the current application in the Tribunal and sought administrative review of the respondent's decision dated 2 June 2022, on the following grounds: (1) The decision to impose a processing charge is ill conceived, grossly exaggerated and oppressive; (2) The definition of personal information has been narrowly interpreted or misinterpreted by TAFE; and (3) The processing charge does not reflect reality.
On 30 June 2022, the respondent issued a further Notice of Decision, which acknowledged receipt of the current application, but stated that the only reviewable decision that it had made was that to require an advance deposit to be paid. However, it also stated that it had decided to refuse to deal with the GIPA application under s 60(1)(c) of the GIPA Act and s 70 of the GIPA Act, because the advance deposit had not been paid by the deadline (30 June 2022) and it had not received any direct communication from him, and that this is also a reviewable decision under s 80(c) of the GIPA Act.
On 4 July 2022, the applicant sent an email to the Tribunal, seeking to amend the ground of review in the current application to read:
The decision to impose an advance deposit for the estimated processing charge is ill conceived, grossly exaggerated and oppressive.
He also stated that he would like to include the decision to refuse to deal with the GIPA application as part of the current administrative review.
[2]
Procedural directions
On 25 July 2022, Senior Member McAteer conducted a case conference. The applicant appeared in person and Mr S Chester appeared for the respondent. Mr O Flores also appeared as an agent for the applicant. The Senior Member made orders to the following effect: (1) Under ss 101(5) and 101(4) of the GIPA Act, the time to lodge the current application is extended to 21 June 2022; (2) The respondent is to file and serve all evidence and material relied upon in support of its reviewable decisions under ss 80(c) and (j) of the GIPA Act by 8 August 2022; (3) The applicant is to file and serve any material or submissions in reply concerning the "refuse to deal and requirement for an advance deposit and processing charge" and notice of witnesses required for cross-examination at hearing (if any)" by 29 August 2022; (4) The applicant is to advise the Tribunal in writing by 20 August 2022 whether the matter can be determined on the papers; (5) The respondent is to file and serve a reply by 18 September 2022; and (6) The matter is listed for hearing on 22 September 2022.
On 17 August 2022, the applicant sent an email to the Tribunal, advising that he agreed to have the matter determined on the papers. Accordingly, the hearing date was vacated and the matter was referred to me for determination on the papers from 21 September 2022.
[3]
Dispensing with the hearing
Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) Act sets out the circumstances in which a hearing is required for proceedings before the Tribunal and the circumstances in which it may be determined by the Tribunal not to be required:
50 When hearings are required
(1) A hearing is required for proceedings in the Tribunal except:
(a) in proceedings for the granting of leave for an external or internal appeal, or
(b) in connection with the use of any resolution processes in proceedings, or
(c) if the Tribunal makes an order under this section dispensing with a hearing, or
(d) in such other circumstances as may be prescribed by the procedural rules.
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. …"
In applying s 50 of the NCAT Act to the current matter, I am also mindful of and must apply the 'guiding principle' of the Tribunal (and for the parties) as set out in s 36 of the NCAT Act:
36 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it -
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal -
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) ...
The relevant question is whether the issues can be adequately determined on the papers?
Both parties were given an opportunity to make submissions at the case conference about whether a hearing was necessary or should be dispensed with and whether the application could be adequately determined without a hearing (i.e. on the papers). The respondent consented to a hearing being dispensed with during the case conference and the applicant consented to this course on 17 August 2022. I note that both parties have filed written submissions and evidence in support of their respective positions.
As required by s 38(6) of the NCAT Act, I am satisfied that the parties have been given a reasonable opportunity to make submissions and provide all relevant materials on the real issues to be determined and that I should dispense with the need for a hearing under s 50 of the NCAT Act.
[4]
The reviewable decision
I am satisfied that the reviewable decision in this matter is the respondent's Notice of Decision dated 30 June 2022.
[5]
The evidence
On 25 July 2022, the respondent filed its completed GIPA review questions and on 9 August 2022, it filed its submissions and the following annexures:
1. The GIPA Application, dated 17 November 2021;
2. Notice of decision, dated 20 December 2021;
3. Email chain between the applicant and respondent between 19 November 2021 and 16 February 2022;
4. Letter/Decision by the respondent, dated 16 February 2022;
5. Review report from the IPC, dated 19 May 2022;
6. Notice of Decision - Internal Review, dated 30 June 2022
On 28 August 2022, the Tribunal received the applicant's submissions and the following annexures:
1. The GIPA Application, dated 17 November 2021;
2. Notice of decision, dated 25 November 2021;
3. Letter from respondent/decision dated, 20 December 2021;
4. Request for internal review dated, 9 February 2022;
5. Letter, dated 16 February 2022;
6. Email, dated 16 February 2022;
7. Notice of Decision, dated 16 February 2022;
8. Review report of the IPC, dated 19 May 2022;
9. Email from the respondent, dated 2 June 2022 enclosing letter dated 2 June 2022 and undated Notice of decision - Internal review;
10. Notice of decision, dated 30 June 2022;
11. Letter from Minter Ellison Lawyers to the respondent, dated 19 April 2022 and Applicant's Anti-Discrimination complaint against the respondent, dated 25 May 2022; and
12. Applicant's pensioner concession card.
On 20 September 2022, the Tribunal received the respondent's submissions in reply.
[6]
Respondent's submissions
The respondent argued that the only grounds of review that have been accepted by the Tribunal are those under ss 80(c) and (j) of the GIPA Act. After setting out a lengthy background, including summaries of its numerous decisions, it stated, relevantly:
15. In relation to s 70(1) of the GIPA Act, the applicant had not made an application for review under part 5 of the decision to require an advance deposit. The applicant's application to NCAT for review was on the grounds underlined in paragraph 4 of these submissions, which do not include the grounds for the requirement of an advance deposit (s 80(j) of the GIPA Act).
16. As at the date of this submission on 9 August 2022, no decision on the Applicant's GIPA Application has been made, as the respondent refused to deal with the application on 31 June 2022, pursuant to sections 60 and 70 of the GIPA Act for failing to pay an advance deposit.
Ground for review 1: Section 80(j): a decision to impose a processing charge or to require an advance deposit
17. The applicant has sought an administrative review from NCAT on the ground of s 80(j) of the GIPA Act: a decision to impose a processing charge or to require an advance deposit.
18. The respondent submits that the respondent has not yet imposed a processing charge, but instead the respondent has provided an estimated processing cost for the purpose of the advance deposit, and as required under s 68(3) of the GIPA Act. The act of advising a GIPA applicant of the estimated processing charges for the purpose of an advance payment is not a decision to impose processing charges: Fisher v Upper Lachlan Shire Council [2019] NSWCATAD 185.
19. As no decision to impose a processing charge has been made, the only ground for review under s 80(j) of the GIPA Act is the requirement of an advance deposit.
20. The respondent submits that the requirement for the applicant to pay an advance deposit was fair and reasonable, and complied with sections 68-71 of the GIPA Act.
21. The respondent has complied with sections 68-71 of the GIPA Act in relation to the requirement of the applicant to pay an advance deposit as follows:
(a) The respondent issued a notice on the applicant regarding the requirement to make an advance deposit of a processing charge by letter on 3 June 2022 (Attachment F): s 68(1) of the GIPA Act;
(b) The respondent's letter dated 3 June 2022 complied with the requirements of s 68(3) of the GIPA Act as follows:
i. The letter included a statement of the processing charges for work already undertaken by the agency in dealing with the application;
ii. The letter included a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application;
iii. The letter specified a date by which the advance payment must be paid (being a date at least 20 working days after the date the notice is given); and
iv. The letter included a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited.
(c) The respondent's letter complied with s 69 of the GIPA Act by requiring a maximum advance deposit of 50% of the amount the agency estimated to be the total processing charge, which was $401.50 (50% of the estimate of $803);
(d) The applicant's advance deposit was due on 30 June 2022. As at 30 June 2022, the applicant had not made a payment of the advance deposit to the respondent. As such, on 30 June 2022, the respondent issued the letter dated 30 June 2022 (attachment G), which refused to deal with the access application on the basis of the failure to pay the advance deposit. This action was compliant with s 70 of the GIPA Act.
22. The respondent submits that as the respondent has complied with the GIPA Act in relation to the requirement to charge an advance deposit for a processing charge, there are no valid grounds for NCAT to overturn this decision. Whilst the applicant may argue that the amount of the advance deposit is too high, this is not a ground of review under s 80(j), which states 'a decision to impose a processing charge or to require an advance deposit'. The respondent has not made a decision to impose a processing charge, and as detailed in these submissions, the requirement of an advance deposit was correctly applied as per the GIPA Act. The respondent submits that it is only the 'requirement' that can be administratively reviewed by NCAT, not the merit, value or amount of the advance deposit. As the requirement has been complied with by the respondent in accordance with the GIPA Act, the respondent submits that the decision to require an advance payment should be upheld by NCAT.
23. Further, or in the alternative, should NCAT wish to review the amount of the advance deposit (which the respondent denies is within the jurisdiction of s 80(j) of the NCAT Act for the reasons above), the respondent submits the following:
(a) The estimate and calculation of the advance deposit by the respondent was reasonable, as per the respondent's letter dated 3 June 2022 (Attachment F), the respondent provided significant detail explaining what searches had been conducted, what searches remained, and the estimated cost of processing. In Fisher v Upper Lachlan Shire Council [2019] NSWCATAD 185, NCAT affirmed the decision of the agency, and held that at [26]:
It also appears to me on the evidence that the agency's estimate of the additional time to finalise the decision is reasonable. I am also satisfied that the applicant's interests are protected by receiving a detailed time sheet, having the ability to challenge the imposition of a processing charge and to argue for a discount on certain grounds (e.g. s 66), and by the possibility of a refund of some of the advance deposit if the time estimate turns out to be excessive (s 71).
(b) The respondent submits that as per the letter to the applicant on 3 June 2022 (Attachment F), the respondent has set out in two tables:
i. Part 1: The actual time to date dealing with the application. This table set out that significant time was already spent on the access application, which totalled $466.
ii. Part 2: Future time estimated to deal with the application. This table set out that an estimated $382.50 of processing time remained.
(c) The respondent submits that the estimated hours and cost of processing the access application was significant, and as such, the respondent is entitled to the security of an advance deposit, provided the deposit is calculated in accordance with the estimate and the GIPA legislation: Manning v Bathurst Regional Council [2018] NSWCATAD 176 at paragraph [45].
(d) The respondent has correctly calculated the estimated processing time and cost, and has taken into account reductions for any personal information of the applicant that forms part of the access application (which is provided free of charge to the applicant for the first 20 hours of processing time for personal information). This was outlined to the applicant by the respondent in the letter dated 3 June 2022 (Attachment F).
(e) The respondent rejects any submissions from the applicant that it has erroneous (sic) calculated the estimated processing cost and advance deposit, by including personal information in the agency's calculation. By way of the letter dated 3 June 2022 (Attachment F), the respondent has provided an explanation to the applicant regarding what information from the applicant's GIPA application is personal information, and what information is not personal information. This is outlined at section 6 of the respondent's letter dated 3 June 2022 (Attachment F). The respondent was (sic) taken this into consideration for the purpose of calculating the estimated processing costs and advance deposit.
Ground for Review 2: Section 80(c): a decision to refuse to deal with an access application (including such a decision that is deemed to have been made)
24. The applicant has also sought administrative review from NCAT on the ground of s 80(c) of the GIPA Act: a decision to refuse to deal with an access application (including such a decision that is deemed to have been made).
25. The respondent submits that s 80(c) of the GIPA Act allows an agency to refuse to deal with an access application, if the applicant has failed to pay an advance deposit that is payable in connection with the application.
26. The respondent submits that the respondent has complied with s 60 of the GIPA act, and has reasonably and correctly applied the decision to refuse to deal with the access application as follows:
(a) The respondent made a decision to require an advance deposit from the applicant in relation to the GIPA application, which was communicated to the applicant by letter on 3 June 2022 (Attachment F). as per the letter dated 30 June 2022 sent from the respondent to the applicant (Attachment G), the applicant failed to pay the advance deposit by the due date.
(b) In accordance with s 60(c) of the GIPA Act, the respondent was entitled to refuse to deal with the access application.
(c) By letter dated 30 June 2022 (Attachment G), the respondent notified the applicant of the refusal to deal decision.
(d) As required by s 60(5) of the GIPA Act, the respondent advised the applicant of the reasons for the refusal by way of the letter dated 30 June 2022, which was due to the failure to pay the advance deposit by 30 June 2022 (s 60(1)(c) of the GIPA Act).
27. The respondent submits that as the respondent has complied with the GIPA Act in relation to the decision to refuse to deal with the applicant's access application, and (sic) there are no valid grounds for NCAT to overturn this decision on administrative review.
The respondent concluded that the Tribunal should "confirm" its decisions dated 30 June 2022, to require an advance deposit from the applicant and to refuse to deal with the access application on the basis that he did not make payment of the advance deposit.
[7]
Applicant's submissions
After setting out a "background" to the current dispute, including an allegation that his employment with the respondent was "interrupted" when he was injured at work "after being required to perform one of the most physically demanding roles the respondent has to offer which: (i) was not suitable for a person my age; and (ii) was not the role I was hired to perform", the applicant responded to the respondent's submissions. I have summarised his submissions below.
1. In relation to s 80(j) of the GIPA Act, he argued that the "merit, value or amount" of the advance deposit form part of the reasons for the decision and that the Tribunal is routinely tasked in the exercise of assessing reasons for a decision in an effort to discover the correct and preferable decision. This includes an assessment of the time required to complete the estimated tasks as well as an assessment of the characterisation of personal information in order to make the s 67 waiver accessible to an applicant for his/her personal information.
2. The IPC (in Annexure H) stated that the respondent had not properly characterised the personal information and therefore failed to apply the waiver for personal information correctly. The information requested is personal information because it will reveal more than the fact that he was engaged in the exercise of public functions. Further, the IP raised concerns with some of the charges that were included and stated that some of the charged items do not align with its Guideline 2, which indicates that notification of a valid application and advance deposit letters cannot be charged for, and that the charges under the heading "decision making" within the table in the notice of decision "goes beyond what the Information Commissioner considers constitutes time spent dealing efficiently with the application."
3. The respondent has chosen to ignore the IPC recommendations and increase the estimated processing charges in response to the IPC report. In relation to the calculations relied upon for the advance deposit, the applicant stated:
i. Records Team 578 minutes
It is my submission that I should not be penalised for the respondent's poor record keeping or the lack of competence of its search officers, and in the alternative further evidence to support this activity should be provided. It is also unclear which pay of my request this activity is related to.
ii. Logistics for review documents
It is unclear which part of my request this activity is related to. I submit that further evidence of this activity should be provided.
iii. Consultations with GP's
This information is my personal health information. any objection raised by the third party should be set aside and the information should be released to me on balancing the public interest. The applicant submits that these consultations are unnecessary as medical professionals routinely expect their professional opinions to be shared with their patients.
iv. IT, for archived email retrieval and IT… (estimate one hour x 3 email boxes)
It is my submission that I should not be penalised for the respondent's poor record keeping or the lack of competence of its search officers. Additionally, it should not take 1 hour to return a simple search by a phrase such as :Hugo Flores". The respondent should provide further evidence of the searches that will justify 1 hour per box and how this time was actually estimated.
v. Review of located information for third parties and "OPIADs (estimated 300 pages @ 1 minute each). Redaction of third party personal information (estimated 50 pages @ 1 minute each)
It is unclear what information is being reviewed and redacted and whether any of my personal information would constitute any of these minutes. I submit that further evidence of the estimate is required to clarify what component of the 300 minutes is my personal information and a breakdown of highlighting which parts of my application are responsible for which minutes.
1. The applicant stated that the caselaw outlined by the IPC report indicates that it is an accepted position that information or an opinion about an employee's conduct in the course of undertaking their duties, is the employee's personal information, notwithstanding the clause 4(3)(b) exception.
2. In relation to the decision to require an advance deposit, he argued that: (a) Point (b) is a job description of his current role and is therefore his personal information; (b) Point (c) is associated with his workers compensation matters and would constitute personal and health information; (c) Points (f) and (g) are information concerning individuals who are the subject of his anti-discrimination complaint against the respondent and it is therefore considered to be his personal information.
3. He said that he relied upon the decision in EMC v University of Sydney [2021] NSWCATAD 234, where the s 4(3)(b) exclusion was found not to apply because the information also discloses that the named individuals are the subject of a complaint.
4. As the information that he has requested has not been reviewed, the respondent "has erred on the side of expensive and decided that the requested information about me is not my personal information. He asserted that "most if not all of the information" is his personal information and that the decision is not in keeping with s 3(2)(v) of the GIPA Act.
5. Otherwise, he argued that in calculating the advance deposit, the respondent has "taken a narrow view of what constitutes personal information and has not appropriately applied the s 67 waiver…" He concluded, relevantly:
28. I submit that this is a "strategy" employed by the respondent, whether deliberate or otherwise, to discourage me from requesting my information by making it unaffordable and, if that fails, to provide the information at the most expensive price possible".
1. In relation to s 80(c) of the GIPA Act - decision to refuse to deal with the application, he argued that the respondent has acted unlawfully and has breached s 116 of the GIPA Act.
2. He argued that the respondent was on notice of the current proceedings and "conveniently exploited his error and utilised s 60(c) of the GIPA Act "to their advantage". He stated, relevantly:
33. The respondent chose to ignore the fact that the IPC proceedings were in regard to section 80(j), therefore, it follows logically that a further external review would also be on the same reviewable decision…
35. It was open for the respondent to contact me or this Tribunal and clarify the nature of my grievance if they were confused or unsure by my NCAT application prior to deciding to refuse to deal with my application.
36. The refuse to deal decision speaks to the "intention" of the respondent's officer as one of haste and opportunism in "shutting down" my application the moment the advance payment fell due, without opportunity to extend the deadline or any discussions or clarifications.
37. I submit that it is the correct and preferable decision for this tribunal to order the refuse to deal decision to be set aside and recommend a section 16 (sic) breach to the appropriate authority for further investigation into the practices and tactics employed by the respondent and its officers in response to legitimate requests for information under the GIPA Act.
1. In relation to the issue of financial hardship, he referred to his current pensioner concession card and argued that under s 10 of the GIPA Act, he is entitled to a 50% discount of the processing charges. He sought an order that the respondent be required to apply that discount.
[8]
Respondent's submissions in reply
In its submissions in reply, the respondent confirmed that no notice of decision has issued with respect to the GIPA application as it refused to deal with it under ss 60 and 70 of the GIPA Act because the applicant failed to pay an advance deposit. It has complied with the requirements of the GIPA Act and there are no valid grounds to overturn the decision on administrative review.
The respondent confirmed that it has not yet imposed a processing charge, but has instead provided an estimated processing costs for the purpose of the advance deposit, as required under s 68(3) of the GIPA Act. As the Tribunal held in Fisher, the act of advising an applicant of the estimated processing charges for the purpose of an advance deposit is not a decision to impose processing charges.
The respondent disputed the applicant's allegation that it has breached s 116 of the GIPA Act, as it has complied with the GIPA Act at all times.
Finally, the respondent rejected the applicant's submissions (at paras 38 to 42 of his submissions) that it has not taken into consideration his financial hardship. It stated that in accordance with the decisions of Shoebridge v Officer of Environment and Heritage [2018] NSWCATAP 144 (Shoebridge) and National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 (Southern Cross) at [36], the requirement or entitlement of an applicant to a processing charge is to be determined at the time access is granted, not at the time an advance deposit is required. It stated that a Notice of Decision has not yet been made and it is not yet required to take into account any processing charge discount available under the GIPA Act. Further, any processing charge discount for the applicant will be determined when a notice of decision is made, and in accordance with the GIPA Act.
Otherwise, the respondent relied upon its previous submissions.
[9]
Relevant legislation
The objects of the GIPA 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) 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.
Section 64 provides:
64 Processing charge for dealing with access application
(1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.
Note.
The decision to impose a processing charge is reviewable under Part 5.
(2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in:
(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or
(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).
(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.
(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.
Section 65 provides:
65 Discounted processing charge - financial hardship
(1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the applicant is suffering financial hardship.
Note.
The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64.
(2) The agency may refuse to allow the discount if satisfied that the applicant is making the application on behalf of another person in order to obtain the discount for that person.
(3) The regulations may prescribe circumstances that constitute financial hardship.
Note.
A decision to refuse to reduce a processing charge is reviewable under Part 5.
Clause 9 of the GIPA Regulation provides:
9 Discounted processing charge
An agency is required to reduce, by 50%, the processing charge payable under the Act for dealing with an access application if the applicant provides evidence that the applicant:
(a) is the holder of a Pensioner Concession card issued by the Commonwealth that is in force, or
(b) is a full-time student, or
(c) is a non-profit organisation (including a person applying for or on behalf of a non-profit organisation).
Section 67 of the GIPA Act provides:
67 Waiver of processing charge for personal information application
If an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.
Section 68 provides:
68 Advance deposit for payment of processing charge
(1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an advance deposit).
Note.
The decision to require an advance deposit is reviewable under Part 5.
(2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency.
(3) The notice requiring an advance deposit must:
(a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and
(b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and
(c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and
(d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited.
(4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid).
Section 71 provides:
71 Refund of advance deposit
(1) An applicant is entitled to a refund of advance deposits paid by the applicant to the extent (if any) that the advance deposits paid exceed the total processing charges payable for dealing with the application.
(2) An applicant is entitled to a refund of any advance deposit paid if the agency does not decide the access application within time.
Note.
An agency cannot impose a processing charge if it does not decide an application within time.
Section 80 of the GIPA Act provides, relevantly:
Which decisions are reviewable decisions
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part -
…
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), …
(j) a decision to impose a processing charge or to require an advance deposit, …
Section 100 of the GIPA Act provides:
100 Administrative review of decision by NCAT
(1) A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).
(2) An aggrieved person who is not the access applicant is not entitled to apply to NCAT for an NCAT administrative review of a decision if the person is still entitled to apply for an internal review of the decision under Division 2.
Section 105 of the GIPA Act provides:
105 Onus on agency to justify decisions
(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.
Section 116 of the GIPA Act provides:
Offence of acting unlawfully
An officer of an agency must not make a reviewable decision in relation to an access application that the officer knows to be contrary to the requirements of this Act.
Maximum penalty - 100 penalty units.
Section 127 of the GIPA Act provides:
127 Waiver, reduction or refund of fees and charges
An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations.
However, a decision to waive or refuse to waive under s 127 is not reviewable by this Tribunal.
In reviewing a decision, s 63(1) of the Administrative Review Act 1997 (NSW) (the ADR Act) provides that the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. Under s 63(2), the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
Section 63(3) of the ADR Act provides that in determining the application, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal
[10]
Consideration
The respondent concedes that its decisions dated 30 June 2022, to require the applicant to pay an advance deposit and to refuse to deal with the GIPA application because the advance deposit was not paid by the due date, are administratively reviewable under s 80 of the GIPA Act. It relies upon the Tribunal's decision in Shoebridge.
However, the applicant disputes this and argues that the respondent has acted unlawfully and has breached s 116 of the GIPA Act.
In Shoebridge, the respondent submitted, and the Tribunal accepted, that the only reviewable decision made was its decision to require an advance deposit (s 80(j)), and that no decision had been made in relation to refusing a reduction in a processing charge (s 80(k)). The Tribunal also commented on when the entitlement to a discount on a processing charge could be determined.
The following statement in Southern Cross at [36], was approved by Senior Member Dinnen in Shoebridge:
36 The GIPA Act contemplates that an applicant's entitlement to a discount of a processing charge is to be determined at the time access is granted, not at the time an advance deposit is required. Sections 65(1) and 66(1) of that Act provide for an applicant's entitlement to a reduction in a processing charge "imposed by an agency." Imposition of a processing charge may only occur when an application has been determined.
It is relevant to note that the decision in Shoebridge was appealed to the Appeal Panel (Shoebridge v Office of Environment and Heritage [2018] NSWCATAP 144). The Appeal Panel noted that a failure to determine an application for a discount at the time of requiring an advance deposit was not a reviewable decision, and said at [31]:
In our view, the Tribunal's findings about when a decision in response to an application for a discount must be made were not an essential part of the Tribunal's decision. Lawyers sometimes call such opinions obiter dicta. Those opinions are not internally appealable decisions. Neither the Tribunal nor the Appeal Panel has power to give a binding advisory opinion about the meaning of a legislative provision.
The Senior Member's finding in Shoebridge that the only reviewable decision before the Tribunal was a decision to impose an advance deposit, was based on the facts of the case and an interpretation of s 80. The only relevant decisions listed in s 80 are a decision to impose a processing charge or to require an advance deposit (s 80(j)), and a decision to refuse a reduction in a processing charge (s 80(k)).
In Manning v Bathurst Regional Council [2018] NSWCATAD 176 (Manning), the Tribunal considered a matter in which the respondent required the payment of an advance deposit and determined issues including how the advance deposit should be calculated, whether financial hardship can be considered in estimating the processing charges and whether the decision to require an advance deposit should be set aside. The Tribunal held that, the only decision which was made and which can be reviewed was the decision to require an advance deposit.
It is necessary to consider whether the respondent's decision dated 30 June 2022 is the correct and preferable decision.
The respondent argues that it complied with the provisions of the GIPA Act and that its decision dated 30 June 2022 is valid.
However, the applicant argues to the effect that the decision: (1) did not take into account the fact that some of the information was his personal information; and (2) did not give him a discount on the basis of financial hardship.
In Manning, the Tribunal held that the decision to impose an advance deposit is to be made and the amount calculated on the basis of the estimated processing charge. As stated in Page v Southern Cross University [2017] NSWCATAP 89 at [43]:
As their description connotes, the 'advance deposits' provisions involve the giving of a kind of security deposit calculated against an estimate. They are 'advance' deposits in the sense that the amount is calculated in advance of the process being undertaken (or substantially in advance of the process being undertaken) and before a final costing is possible.
The GIPA application in this matter initially comprised 8 paragraphs, which were numbered a to h, but items d, e and h were subsequently deleted by the applicant. While some of these paragraphs are reasonably specific, others such as items f and g are more general in nature and it can be inferred that searching for the requested information would involve wide ranging searches in various forms.
On 30 June 2022, the respondent provided the applicant with detailed information about how the past processing times and costs of $466 and future estimated processing times and costs of $382.50 were calculated.
While the applicant argues to the effect that he should not be penalised for the respondent's poor record keeping or the lack of competence of its search officers", he has not filed any evidence that supports a finding that the respondent's record keeping is poor and/or that its search officers lack competence.
Based upon the evidence before me, I am satisfied that the respondent is entitled to the security of an advance deposit. However the deposit must be calculated against the estimate, as stated by Deputy President O'Connor in Page, and comply with the legislation. This is relevant to the additional points raised by the applicant.
[11]
Personal information
The respondent clearly advised the applicant that under s 67 of the GIPA Act, the first 20 hours of processing time for personal information requests should be free of charge and, that:
* To the extent that information contains a minority of your personal information, the percentage of time spent processing personal information will be deducted from the processing charges.
The applicant argued to the effect that it was not made clear in the tables in the notice that processing time for personal information had been excluded or properly calculated. However, s 68(3) of the GIPA Act does not require this information to be included in the notice to the applicant.
While the onus is on the respondent to demonstrate that its decision was the correct and preferable one, for the purposes of the advance deposit it is only necessary to show that the first 20 hours of processing were not included. This is clearly indicated in the notice of decision dated 30 June 2022 and there is no contrary evidence before me. I am therefore satisfied that the estimate excluded the relevant 20 hours.
[12]
Financial hardship
The applicant states he is an Age Pensioner and claims he would be entitled to a financial hardship discount.
The respondent initially disputed that he was entitled to a discount of 50% on the basis that he was still employed by it and was being paid. However, the applicant has filed a copy of his Pensioner Concession Card and he asserts that he also lodged this with his GIPA application. Therefore, it is necessary to consider whether his apparent eligibility for a discount on the basis of financial hardship is relevant to determining what is the correct and preferable decision.
In Page, Deputy President O'Connor commented that "it may be easy to establish at the beginning of the process whether an applicant fits one of the hardship categories set out in the regulations" ([42]). The advance deposit is "advance payment of a processing charge" (s 68(1)) - that is, it is a deposit on the eventual charge to be paid by the applicant, which can be reduced for reasons of financial hardship.
The notice of the advance deposit must include "a statement of the estimated processing charges for work expected to be required to be undertaken". The applicant's eligibility for a financial hardship discount could reduce the estimate of the processing charges by half. It could be argued that an estimate should take into account the fact (if known) that the applicant is entitled to a financial hardship discount. Indeed the Fact Sheet issued by the IPC on Fees and Charges recommends this approach. The GIPA Act states that it is the intention of Parliament that the discretions conferred by the Act "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information." This supports a view that the decision-maker should take financial hardship into account when using its discretion to determine the advance deposit required.
In my view, discretions of that kind are not reviewable by this Tribunal, however, a decision to refuse a reduction in a processing charge is made expressly reviewable (s 80(k)). Also against any view that the Tribunal can review the amount of an advance deposit for not considering financial hardship is s 69(1), which says the maximum deposit that can be required is 50% of the total estimated processing charge, "ignoring any reduction to which the applicant may be entitled".
In the end it is for the respondent to determine if it is satisfied on the financial hardship issue once the processing charge has been imposed. However, as no processing charge has yet been imposed by the respondent, I am satisfied that financial hardship is not a matter that I should consider in determining the correct and preferable decision in this matter.
[13]
Conclusion
I am satisfied that the respondent's decision dated 30 June 2022, to require an advance deposit to be paid and to refuse to deal with the GIPA application because the said deposit was not paid by the due date, is the correct and preferable decision.
Based on the evidence before me, the size and scope of the GIPA application and the estimate of the time involved justify the estimate, and it does not exceed the maximum permitted by the Act. Accordingly, there is no reason to justify setting aside the respondent's decision.
I am also satisfied that in making its decision dated 30 June 2022, the respondent has not breached s 116 of the GIPA Act.
[14]
Order
The respondent's decisions dated 30 June 2022 are affirmed.
[15]
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: 25 October 2022
Parties
Applicant/Plaintiff:
Flores
Respondent/Defendant:
TAFE NSW
Legislation Cited (6)
Administrative Decisions Review Act 1998(NSW)
Government Information (Public Access) Regulation 2009(NSW)
Government Information (Public Information) Act 2009(NSW)