Holman v NSW Rural Fire Service

Current proceedings

1. On 14 August 2023, the applicant filed the current application for administrative review with the Tribunal, and he sought a review of the decision dated 11 August 2023 on the following grounds: Sections 5 and 9(1) of the GIPA Act establish a presumption in favour of disclosure of government information. This provides an applicant with a legally enforceable right to access the information requested unless the authority can stablish that there is an overriding public interest against disclosing such information. I seek the release of document numbers 1, 2022A, 2022F (Note: this document has four attachments: document 2022D, 2022E, 2023E and 2023F(1)), 2023G, 2023H, 2023N, 2023O and 2023R.
2. On 29 January 2024, the matter was heard by Senior Member French SC. The Senior Member reserved his decision.
3. However, Senior Member French SC resigned from the Tribunal after completing the hearing of the matter, but before he issued his determination. Accordingly, it was necessary for the Tribunal to be reconstituted pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
4. On 13 December 2024, President Armstrong made an order under s 52 of the NCAT Act and reconstituted the Tribunal by replacing Senior Member French SC with myself.

Further submissions and evidence

1. I note that the Tribunal asked the parties whether they wished to make submissions regarding the reconstitution of the Tribunal and that on 6 December 2024, the applicant sent an email to the Tribunal in which he purported to make further submissions and to lodge further documents in his case. The issue of the reconstitution of the Tribunal was not addressed by the applicant.
2. On 12 December 2024, the respondent also sent an email to the Tribunal stating that it did not wish to make any submissions regarding the reconstitution of the Tribunal and that it objected to the further submissions and evidence lodged by the applicant on the basis that evidence and submissions in the substantive proceedings closed in January 2024.
3. Neither party has applied to re-open the matter and neither has been granted leave to file and serve further evidence or submissions in the matter. I therefore reject the applicant's purported lodgement of further submissions and evidence in the matter.

Dispense with a further hearing

1. I have reviewed the official transcript of the proceedings before Senior Member French SC on 24 January 2024.
2. Having done so, I am satisfied that the issues in dispute can be properly determined on the basis of the evidence and submissions that were before the Tribunal on 24 January 2024.

The reviewable decision

1. The reviewable decision is that of the respondent dated 11 August 2023, as varied on 1 November 2023 (when further information was released to the applicant).

Respondent's case

1. The respondent stated that the respondent relied upon: 1. Submissions filed 15 November 2023; 2. Statement of Lauren Smith filed 15 November 2023; 3. Statement of Greg Armstrong filed 15 November 2023; 4. Updated bundles of documents that were withheld from and released to the applicant, filed on 15 November 2023; 5. Statement of Lauren Smith dated 16 January 2024; 6. Reply submissions filed 17 January 2024; and 7. Summary of legal arguments filed 17 January 2024.
2. The respondent stated that most of the information identified by the respondent in relation to the GIPA request relates to a bushfire hazard complaint that the applicant made to the respondent concerning the boundary between a property at Belrose and the National Park in 2023. In the decision at first instance, the respondent identified twenty-nine documents that were responsive to the GIPA request and it decided to release nineteen documents in full, two documents in redacted form and to withhold eight documents, on the basis that the information was subject to an overriding public interest against disclosure.
3. The respondent stated that of the twenty-nine of the documents that were listed in the schedule to that decision, twenty-two have been released in full, six documents have been released in part and only one document has been withheld in full.

Evidence of Lauren Smith

1. In her statement dated 15 November 2023, Ms Smith stated that she is the Manager, Legal of the respondent and she has held that position since March 2019. She said that she reviewed the GIPA request in this matter and the first instance decision dated 11 August 2023. That decision was made by Ms W Theresia, who was acting in her role at that time. She also reviewed the consultation records with Department of Planning and Environment (DPE) and the documents sought in the GIPA request.
2. Ms Smith stated that on 18 July 2023, Ms A Jamieson (then Acting Manager, Legal of the respondent) sent a GIPA third party consultation letter to DPE by email, to enquire whether it objected to the release of certain information sought in the GIPA request. That enquiry and email were annexed to her statement and marked "A" and "B," respectively,
3. On 1 August 2023, the GIPA Coordinator at DPE, replied by email, advising that DPE objected to the release of documents 2022F, 2023F, 2023H, 2023N, 2023O and 2023R on the basis that the information in those documents related to a "current investigation" by NPWS. However, DPE did not object to the release of document 2023G in redacted form (referred to as "02-RE Difficult Hazard Situation- redacted") or to the release of documents 2023Q and 2023I (referred to in her email as "2023 Pages from the Briefing Note").
4. After the applicant commenced the current proceedings, Ms Smith stated that she and Ms Jamieson again consulted with DPE about the release of information sought in the GIPA request. They attended a conference with DPE on 23 September 2023, to discuss whether it maintained its objections to the release of certain documents and the basis of the objections.
5. On 16 October 2023, an officer of DPE, advised in writing that DPE maintained its objections to releasing email correspondence between staff of the respondent and NPWS. A copy of her letter was annexed to the statement and marked "C."
6. Ms Smith stated that between 27 and 31 October 2023, she and Ms Jamieson discussed the potential release of further information contained in documents 2023F, 2023H, 2023N, 2023O and 2023R with DPE, following which: 1. It consented to the release of information in documents 2023H and 2023O; 2. It consented to the release of some of the information contained in documents 2023F, 2023N and 2023R; and 3. It maintained its objection to the release of information contained in document 2022F, and to certain information contained in documents 2023F, 2022N and 2023R.
7. Ms Smith stated that as at the date of her statement, her understanding was that NPWS' investigation regarding the applicant's activities was ongoing.
8. In her further statement dated 16 January 2024, Ms Smith described the process involved in managing and responding to a GIPA request and the process that the respondent followed in responding to this GIPA request. She stated that she formed the view that the Field Operations Directorate may have held records in two locations: (1) Local District and Area Offices - these may have held records locally in respect of any communications, investigations or other involvement with the property; and (2) the ICON (Incident Control Online) Database, which is used to record all bushfire incidents that are responded to by the respondent. It was also possible that the Preparedness and Capability Directorate may have held records, as it is responsible for hazard complaints from a policy and advisory perspective and is the owner of the Guardian platform (the database used by the respondent to record and track the management of bush fire hazard complaints. However, she considered that no other directorate was likely to hold any records responsive to the GIPA request.
9. Ms Smith stated that searches were requested from both directorates and those searches were conducted and she provided details of those searches. Those searches produced a total of twenty-six documents (listed in the schedule). She concluded that she was not aware of any additional searches that could reasonably be conducted that would result in information responsive to the GIPA request being identified.
10. Ms Smith stated that in January 2024, she arranged for a further search of the Guardian database to be conducted, to confirm whether there was any "correspondence, photos or video" stored on it that was excluded from the schedule. The search was conducted using the identifier relating to the applicant's bush fire hazard complaint. The search confirmed that there are only three photographs on the database in relation to the hazard complaint - documents 2022C, 2022D and 2022E in the schedule. She was advised that photographs of site visits, when they are taken, are usually uploaded to the Guardian database and are stored on staff members' local drives. When stored locally, photos are typically saved using the address visited and/or the complainant's name and when uploaded, they are stored in the file that has been created to track the relevant complaint.
11. The applicant gave notice that he required Ms Smith to attend for the purposes of cross-examination and she was called and affirmed. She adopted the contents of her statements as being true and correct.
12. In cross-examination, the applicant asked Ms Smith whether she believed that the respondent followed the required statutory process when dealing with that complaint? Ms Smith stated that she could not answer that question.
13. The applicant then asked Ms Smith whether she saw any evidence from NPWS regarding any wrongdoing by him regarding land clearing? Ms Smith replied that the purpose of the consultation with NPWS was not to seek evidence, but to ascertain whether it objected to the release of information under the GIPA request.
14. The applicant then asked Ms Smith whether she asserted that "a mere ongoing investigation is enough reason to withhold the information sought under the GIPA application?" Ms Smith replied that she believed it depended on the investigation and the information that is within the documents.
15. The applicant asked Ms Smith whether she was aware that no action had been taken by NBC or NPWS? Ms Smith replied, "I am not."
16. The applicant then asked Ms Smith whether she was aware that a bush fire hazard letter was issued and whether it indicates that the respondent considered that a bush fire hazard exists? Ms Smith replied that in para 2 of that letter, it states that an officer from the service has undertaken an inspection and has determined that a bush fire hazard did exist.
17. The applicant then asked whether the letter acknowledges that the respondent considered that NPWS was in breach of its obligations under s 63 of the Rural Fires Act? Ms Smith replied that this was not stated in the letter.
18. The applicant subsequently asked Ms Smith if she believed that the respondent had acted in good faith in not providing a letter to him? However, Ms Kirk objected to this line of questioning, on the basis that the purpose of the current proceedings is not to review the respondent's conduct in relation to the applicant's bush fire hazard complaint, but rather to review its decision under the GIPA Act.
19. In response, the applicant asserted that the release of that document changed his case, "because it has shown that an undertaking - a review was undertaken into my complaint and this letter shows that the review showed that the hazard actually existed and that letter was never provided to me. I will deal a bit later as to different parts of the legislation that would have required it to be provided to me but I think it's crucial that this hearing establishes the facts around this letter because this letter actually shows that the Honourable Minister Sharp has been misled as Minister for Environment by the Rural Fire Service. I think it's very important that we get to the bottom of the facts."
20. Ms Kirk replied that the applicant's investment in his complaint is only relevant as a personal factor that weighs in favour of the release of information that was withheld from him. Otherwise, the material he has filed and his submissions regarding the determination of his complaint are not relevant to these proceedings.
21. However, the Senior Member decided to allow the applicant's line of questioning, subject to the fact that his line of questioning should really be directed to the issues of whether the respondent holds any further information and whether it is entitled to rely upon public interest considerations against disclosure that it identified. Your line of questioning really should ultimately be directed at those things.
22. The applicant then raised s 112 of the GIPA Act and he stated that the purpose of his questions was to establish whether the respondent had behaved in good faith and whether NCAT should refer the respondent's conduct to the Minister.
23. The applicant then asked Ms Smith whether she believed that the respondent acted in good faith by not disclosing the letter to him before he commenced the current proceedings? She replied to the effect that there was no evidence before her that suggested anything other than the respondent's officers had acted in good faith.
24. The applicant then referred Ms Smith to a letter from Minister for the environment, the Honourable Penny Sharpe, and to para 3, which stated: As part of the complaint process RFS assessed the fire risk to the shed, school and broader property. The RFS dismissed the complaint, stablishing there is no significant bushfire risk to these areas and a reasonable asset protection is in place on the property to allow for defendable space/ He asked Ms Smith whether the Minister's statement "correctly reflects the situation as far as the letter goes?" Ms Smith replied that she was not aware of the date of that letter and she did not recall the exact course of action. It was possible that the Minister was referring to the second risk assessment or site assessment that was undertaken by the RFS, rather than the first.
25. In response to direct questioning from the applicant, Ms Smith stated that she was not aware of any other documents or reports that may fall within the date range of his GIPA request that have not been provided to the Tribunal in "the closed bundle of documents"?.
26. The applicant asked Ms Smith whether a statement from NPWS would have assisted her to provide justification for the respondent's decision to not release the withheld documents. She replied that NPWS objected to the release of some of the information upon consultation and the respondent relied upon this in applying the public interest test.
27. The applicant put to Ms Smith that the respondent was relying on information from NPWS that was provided "in a hearsay capacity." Ms Smith replied that the respondent relied upon the advice from NPWS as an authoritative statement about its actions and the importance of withholding that information.
28. The applicant put to Ms Smith that by not providing a statement by NPWS, he did not have the ability to test that information. Ms Smith replied that there was sufficient evidence to justify the respondent's decision to withhold the information.
29. The applicant then sought to ask Ms Smith questions about documents that were annexed to Mr Armstrong's statement. Ms Kirk objected to those questions being asked of Ms Smith. The applicant did not press those questions and Ms Smith was excused from the proceedings.

Evidence of Greg Armstrong

1. In his statement dated 15 November 2023, Mr Armstrong stated that he is the Supervisor of Strategic Hazards Management and he is responsible for developing State-wide policies for managing bush fire hazard complaints, issuing bush fire hazard reduction notices and training and developing staff in relation to bush fire hazard management. He also supports and provides advice to HMO's across NSW on a daily basis. HMO's usually manage bush fire hazard complaints at a district and area level, but they often consult with him when issues come up that are not straight-forward.
2. Mr Armstrong stated that in preparing his statement, he reviewed the documents that the applicant sought access to under his GIPA request. He was not directly involved in management of the applicant's hazard complaint, he did give general advice by telephone about the process and procedures to be followed in dealing with it.
3. Mr Armstrong stated that under the Rural Fires Act 1997 (NSW) (the RFA), an owner or occupier of land can make a complaint to the Commissioner of the Respondent that "a bush fire hazard exists on land because of the failure of a public authority or owner or occupier of the land to carry out bush fire hazard reduction work on the land". This is called a bush fire hazard complaint. In response, the respondent can take a range of steps, including issuing a "bush fire hazard reduction notice," which requires the owner/occupier or public authority to carry out work to reduce the hazard (referred to as "treating the hazard").
4. Mr Armstrong identified three policies that are currently in place regarding the management of bush fire hazard complaints. He stated that owners and occupiers of land can make such complaints in a variety of ways. Under the RFA, complaints must be made in writing to the Commissioner or the local authority of the local government area. These are received by post, email and fax, but informal complaints can be accepted over the phone. It is the respondent's policy to take action whenever a possible hazard is identified, even if a formal complaint has not been made, but the preferred method is via the online form on the respondent's website, and district officers will generally direct a complainant to that form if they are contacted by phone.
5. When making a complaint, the owner/occupier needs to state who they are, explain where a hazard is located and explain the grounds of the complaint and why they think the person/public authority complained about is responsible for the hazard. Once a complaint has been received, it will be directed to the district office where the hazard is located and allocation to an HMO, who is responsible for investigating whether there is in fact a hazard, what treatment is required and who should be required to do the treatment. Every complaint must be entered into the respondent's Guardian database, which retains all of the information about a complaint and tracks the progress of the investigation until it is closed and any identified hazard is resolved. The database records any correspondence sent and received in relation to a complaint, any site assessments conducted and decisions made about what treatments need to be done to address a hazard, and any environmental/development approvals that need to be obtained to carry out the treatment. The HOM responsible for investigating the complaint is responsible for logging developments in Guardian as the investigation proceeds.
6. The Guardian database also allows HMOs to conduct a "pre-inspection" or "desktop" assessment of a complaint by mapping out where the hazard complained of is apparently located and viewing satellite images of the land and its surrounds. While conducting this assessment, the HMO may be able to identify what the hazard is, what kind of land it is located on or near, what assets (such as houses) are located in the area etc. The HMO will also take that opportunity to try to identify who owns the land on which the hazard is located and who owns any neighbouring parcels of land.
7. Following a desktop assessment, the HMO will carry out an in-person site inspection. If the complaint is about a hazard on public land, the HMO will invite a representative from the relevant public authority to participate in the inspection, and to discuss whether a hazard exists and what was required to treat it. If the land is privately owned, the HMO may make arrangements with the hazard owner to visit their property, or if they do not have the hazard owner's contact details, my just attend the property on the day.
8. When a public authority is responsible for the hazard that is complained about, the HMO will consult with them about how they are managing the land, if they consider that a hazard exists and how they propose to respond to the hazard. For example, where the public authority is the NPWS, they will generally have procedures in place to manage hazards on the land (i.e. hazard reduction programs as part of its fire management programs). They may also have additional concerns about managing a threatened species on the land, or protecting a site.
9. During the inspection, the HMO will also usually meet with the complainant. This is an opportunity for the complainant to provide further information, including why they are concerned about the hazard. The risk assessment process if different when there is an asset on land that could be affected by a bush fire.
10. When conducting a site inspection, HMOs will assess any assets that could be affected by the hazard. It is the respondent's policy to consider taking action to reduce hazards that could cause a bush fire to spread to adjoining lands, even when there are no assets located on those lands. However, the level and type of protection that is appropriate will vary for different types of assets, such as hospitals, schools, dwellings or major buildings. For example, if the asset is a far shed, it may only be necessary to mechanically clear vegetation for a distance of up to 10m from the asset.
11. Further, HMO's may require information from the owner about the types of materials used in construction of any assets - whether they comply with any bush fire construction standard, what resources they have at their disposal to respond to bush fires, escape routes or refuges and access and egress from the property. An HMO will exercise discretion as to whether it is appropriate to have the complainant participate in the site inspection at the same time as the hazard owner complained about. However, there is often a history of disputes between the complainant and the hazard owner and to avoid exacerbating these problems, it is usually preferable to consult with the parties individually,
12. Mr Armstrong stated that an informed HMO is able to explain the appropriateness of treatments to manage the hazards and where treatment options will and will not address the owner's concerns. In his experience, the respondent is often asked to consider a hazard management complaint when the parties have been unable to resolve a dispute and is called-in as a third party circuit breaker. In those cases, the HMO needs to use their discretion about how to maintain good lines of communication and a working relationship with all the parties involved. That is often achieved by communicating with the parties separately and keeping the details of what one says about the other confidential.
13. After conducting a site visit, an HMO may engage in further deliberations with other staff within the respondent, and further consultation with the complainant, the hazard owner and other government agencies. They often rely heavily on obtaining information from the local council, which can help the respondent to identify whether an environmental approval is already in place to authorise the hazard treatment required, or whether further approval needs to be obtained. They can also provide information on whether the complainant and the hazard owner or public authority has been managing their land appropriately, which may influence the HMO's assessment of who should be required to treat the hazard and whether issuing a hazard reduction notice is necessary. The respondent will not require a person to treat a hazard, including by issuing a hazard reduction notice, if those steps are already required to be taken by some council approval, and should instead be enforced by the council.
14. Mr Armstrong also deposed as to the procedure that applies if there is a new or renovated development in bush fire prone land, including the making on enquiries with the local council. He stated, relevantly: 30. Although it is the RFS's responsibility to assess bush fire hazards, including hazards that might affect assets, the RFS is conscious that it should not carry out unnecessary work, where that work involves interfering with neighbouring properties. For example, particularly where the property containing the hazard is a national park and/or Crown land. HMOs will be reticent to destroy areas of bush land where the asset being protected may be illegal, or the owner of the asset has not taken appropriate steps to protect it themselves in accordance with building codes and standards.
15. Mr Armstrong stated that he understand that the NWPS was concerned that the applicant had conducted significant land clearing and levelling on his property, possibly without appropriate approval. There were also concerns that he had refurbished a shed on his property. As per standard procedure, the HMO responding to the complaint contacted NBC to enquire about the approvals in place in relation to the property. In doing so, the HMO learned that there was an ongoing Council investigation and that the NPWS was investigating and considering other environmental concerns at the relevant site.
16. Mr Armstrong stated that when HMO's communicate with private landowners, local councils and public authorities in relation to hazard management complaints, there is an expectation that the information shared will be kept confidential and not shared with other parties. There is no explicit requirement in the hazard management policy documents to that effect, but in managing complaints, the respondent's staff adhere to the Service Standard 1.1.13 Personal Information and Privacy, and the respondent's Policy P7.1.2 Public Complaints Management, which set out the principles for protecting the personal information and privacy of complainants and the details of public complaints. The same principles of accessibility, responsiveness, fairness and confidentiality are generally adhered to in the management of all complaints.
17. When consultations with public authorities and local councils involve discussion of past, ongoing or potential investigations into a landowner, it is crucial that HMOs are able to obtain information about those investigations to assist them in responding to hazard management complaints effectively and appropriately. If public authorities or local councils thought that this information would be disclosed to individual landowners, particularly where their investigations are ongoing, they would be much less likely to cooperate with the respondent in its investigations. The information obtained from public authorities and local councils is crucial for the respondent to exercise its functions in relation to hazard management. If that information could not be obtained, the respondent would be limited in its ability to effectively conduct hazard management investigations.
18. There are also some types of information, which are routinely obtained from public authorities, that it is particularly important to keep confidential. For example, Crown Lands or the NPWS may be aware that there is a sacred Aboriginal site on their land, and will be careful not to disclose information about its location to the public. However, it is still important for the respondent to have this information so that it does not take any hazard management action that could damage the site.
19. Mr Armstrong concluded that in order to have a robust process for dealing with bus fire hazard complaints, HMO's and other RFS staff need to be able to conduct consultations with stakeholders, particularly public authorities, in confidence, and that those consultations can be kept confidential where it is appropriate to do so because of a factor such as an ongoing investigation or interaction with other regulatory processes, or because of the nature of the information.
20. In relation to the documents sought in this GIPA request, Mr Armstrong stated that in considering how to respond to the applicant's hazard complaint, the respondent consulted with the NPWS and NBC regarding compliance issues on the land. Emails containing those consultations are in documents numbered 2022A, 2022F, 2023N and 2023R in the schedule of documents, and these documents were either withheld or released to the applicant in redacted form.
21. Further, documents numbered 01, 2023F and 2023G in the schedule of documents evidence the respondent's internal deliberations and decision making, which refer to information obtained through the consultations with NBC and NPWS. Those documents were also withheld.
22. Mr Armstrong stated that disclosure of documents of this type would prejudice the respondents exercise of its functions regarding hazard management, as it would compromise the HMOs' ability to communicate openly with, and to obtain information from, other agencies and private landowners. It would deter those agencies from sharing information in circumstances where they had undertaken, or were undertaking, investigations or enforcement actions in relation to the landowner, because of the risk that the information would be disclosed to the landowner. This information is crucial in order for HMO's to assess whether a hazard exits, and what type and level of risk it poses, and what steps (if any) should be taken to treat it.
23. Mr Armstrong also stated that disclosing documents of this kind would compromise the ability of HMOs to effectively conduct investigations where it is necessary for them to obtain internal advice from other officers of the respondent. It is crucial for the respondent's staff to be able to speak freely when they are conducting these internal consultations, in order to ensure that any potential red flags relating to a hazard complaint are understood and dealt with appropriately.

Cross-examination of Mr Armstrong

1. The applicant required Mr Armstrong to attend for cross-examination. He took an oath and adopted the contents of his statement as being true and correct.
2. From the outset, the applicant sought to cross-examine Mr Armstrong regarding his experience and knowledge of the respondent's procedures for managing a bush fire hazard complaint, rather than asking its decision regarding his GIPA request.
3. For reasons that are unclear to the Tribunal, the Senior Member allowed the applicant to persist with this line of questioning over objections raised by the respondent on the basis of relevance to the issues to be determined by the Tribunal in this administrative review.
4. In particular, the applicant questioned Mr Armstrong about whether his bush fire hazard complaint was entered into the Guardian database, although Mr Armstrong stated that he did not manage that complaint and he did not know the answer.
5. The applicant questioned Mr Armstrong regarding s 6 of the Bushfire Hazard Complaint and Notice Guidelines, and particularly whether a site inspection was carried out by the respondent. Again, Mr Armstrong stated that he did not know.
6. The applicant asked Mr Armstrong whether a Fuel Hazard Assessment Form needed to be filled out, and Mr Armstrong replied that he did not know. He then asked whether the BRIN system (a predecessor of Guardian) was searched to provide documents for his GIPA request? However, Ms Kirk replied that this was addressed in Ms Smith's second statement.
7. The applicant then asked Mr Armstrong to express an opinion about clearing vegetation to reduce fuels for a distance of ten metres from the farm shed. Ms Kirk objected on the basis that the Tribunal was not reviewing the merits of the hazard complaint, but the Senior Member replied: I understand but I allowed a similar line of questioning in relation to Ms Smith and my view would be that the line of questioning should be permitted for the reasons I said there, unless you wish to argue any further Ms Kirk?
8. A lengthy discussion took place between the Tribunal and the parties in Mr Armstrong's absence, during which Ms Kirk pressed her objection to this line of questioning. In response, the applicant asserted that he was attempting to show that the respondent failed to disclose documents to him in order to cover-up a failure in its proper processes and that it should have undertaken appropriate research into the information they it was provided by NPWS.
9. Ultimately, the Senior Member made the following ruling: So, I'm going to allow the line of questioning, It may end up, Mr Homan, that none of this has much to do with anything I have to decide, but I'm going to allow you to explore the possibility that it does at this point, and for the reasons that I've indicated in discussion with you both…
10. The applicant asked Mr Armstrong whether an aerial photograph of his land met the requirements of an IPA. Mr Armstrong replied that it is very difficult to indicate from aerial imagery what are trees and what are shrubs or other vegetation and that he was not familiar with this area of the National Park.
11. The applicant then asked Mr Armstrong whether the imagery showed some disconnection of canopy in the northern section of the property. Mr Armstrong replied that there appeared to be a reduction in the vegetation, but as to whether or not that met the standard for an IPA, he would have to rely upon a site inspection.
12. The applicant then referred Mr Armstrong to s 74 of the RFA, which provides that if any action is to be taken by the Commissioner in relation to a bushfire hazard complaint, the complainant must be notified of the actions taken as soon as possible, and he asked if Mr Armstrong was aware whether any action was taken on his complaint. Mr Armstrong replied to the effect that he was not sure what action was taken.
13. The applicant then sought to question Mr Armstrong regarding a letter that was sent by the respondent to NPWS, which pre-dated his GIPA request. Ms Kirk objected on the basis that it is not relevant to the management of the GIPA request, but the Senior Member decided to allow it and he stated, "…Whether it is ultimately relevant to anything I need to determine, I'll leave to deliberation..."
14. Mr Armstrong replied that as the letter was issued, it indicates an action and the respondent would have an obligation to notify the complainant. However, as he was not a party to the actual process, he did not know whether or not a notification was issued. The applicant then stated that the letter was provided to him, but only after the Crown Solicitor became involved in the proceedings.
15. The applicant then asked Mr Armstrong whether NPWS appealed the letter to the Commissioner. Mr Armstrong stated that he did not know, but that para 2.14 of the Policy refers to a s 66 Notice, and that this letter was not a s 66 Notice. Rather, it was advice to the landowner to take some action and there is no right of appeal against it. If the letter is issued and nothing else has occurred, then the letter stands.
16. The applicant then stated that the letter was asking NPWS to undertake works and he wanted to ascertain whether the respondent carried out a further inspection, or if they ignore the letter and not carry out the work. Mr Anderson stated that he did not know.
17. The applicant then asked whether a site visit form should have been completed if the respondent conducted a site inspection. Again, Ms Kirk objected on the basis of relevance, but the Senior Member allowed the question
18. The applicant argued that the purpose of these proceedings is "to determine whether documents do or do not fall within the date range of what I've requested" and that he was hoping that further information like forms would have been provided to the Tribunal, so that an assessment could be made as to whether or not they are "correspondence." Ultimately, Mr Armstrong stated that he did not know if a particular form existed that recorded information from a site inspection.
19. The Senior Member asked whether such forms are completed as a matter of general policy. Mr Armstrong replied that the form is available for use, and that field officers would generally take photographs.
20. The applicant then referred to part 3.11 of the Policy - titled "Record Keeping," which states that a paper file is to be created for each complaint. He put to Mr Armstrong that it is reasonable to assume that the listed documents should have been filled out for a site visit. Mr Armstrong replied that those documents should exist if they were used for the complaint, but that this policy did not specifically apply to bush fire hazard complaints.
21. The applicant then took Mr Armstrong to two photographs, which he asserted showed the boundary of the property and the national park, and asked whether there was a need to clear a 10m area and whether there was a bush fire hazard? Mr Armstrong replied that this would depend on whether it had been determined that 10m was the appropriate distance for the hazard and he did not know if that was the distance that had been determined.
22. The applicant then tasked Mr Armstrong whether he believed that the letter from Minister Sharp accurately reflected the situation regarding his complaint. Mr Armstrong replied that he did not have enough information to make that judgment.
23. The applicant then put to Mr Armstrong that there appeared to be "a disparity" between the respondent's letter to NPWS, advising it to carry out works, and the Minister's letter. Mr Armstrong noted that there was a time lapse between those letters and he did not know what had occurred during that time and he could not answer the question.
24. The respondent did not seek to re-examine the witness and he was excused from further attendance.

Respondent's oral submissions

1. The respondent relied upon its written submissions. However, it noted that the applicant is seeking a review of two decisions made by it, namely: (1) a decision to refuse access to disputed information; and (2) the decision that it does not hold any further information in response to the GIPA request.

(1) Decision to withhold information

1. The respondent stated that this decision now applied to only six documents that are still withheld in part and only one document that has been withheld in full. These documents contain email correspondence, which record the respondent's internal deliberations regarding the applicant's hazard complaint and its consultations with the NPWS in relation to that complaint. There is some overlap between the information that has been withheld and the information in the documents that have been released in redacted form. In other words, there are three recurring emails that have had the same information redacted each time they appear - they are dated 15 December 2022, 1 February 2023 and 2 February 20223 and they are labelled as documents 1, 2022A, 2023F, 2023G, 2023N and 2023R, respectively.
2. The only document that had been withheld in full is 2022F, which contains two other emails (each dated 20 December 2022). The respondent argued that in relation to this document, there is an overriding public interest against disclosure.

Clause 1(d) to the table in s 14(2) of the GIPA Act

1. The respondent argued that cl 1(d) applies to three documents, which are numbered 2022F, 2023N and 2023R. The former was withheld in full but the latter contains the same information (which has been redacted). 2023N and it relies upon six public interest considerations against disclosure. It argued that disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
2. These documents contain emails between the respondent and NPWS, including an investigation that NPWS was running. Mr Armstrong gave evidence about the respondent's reliance on information obtained from complainants, neighbours, local councils, public authorities, private land owners and other stakeholders, to assist it in exercising its statutory functions under the RFA of investigating bush fire hazard complaints. He also gave evidence about the importance of maintaining the confidentiality of these consultations and he stated that disclosing the withheld information would make stakeholders less likely to cooperate with future investigations.
3. The Senior Member then asked the respondent whether it was the NPWS that was exercising statutory functions. The respondent replied that the NPWS has obligations under its own Act or Acts and that in this case, the applicant's complaint was about the NPWS and that the RFS has a general power to undertake an investigation, but it does not have power to require information to be provided. While the applicant asserted that the respondent has investigative powers under the RFA, it does not have a power to compel other agencies or individuals to provide information.
4. Mr Armstrong's evidence is that the respondent relies upon co-operation from complainants and those who were the subject of complaints, including public land managers and private landowners.
5. Ms Smith also gave evidence that NPWS objected to the release of the information in these documents and she annexed a document from NPWS, confirming that it provided information to the respondent in confidence and with an expectation that this would not be disclosed to the applicant. It also stated that disclosure of that information would impact its trust in and willingness to cooperate with the respondent in future for fear of prejudicing both this and other investigations.
6. The respondent argued that cl 1(d) should be given substantial weight in applying the public interest test.

Clause 1(e) of the table to s 14(2) of the GIPA Act

1. The respondent argued that this consideration applies to all of the information that has been fully or partially withheld from the applicant. This provides applies where the withheld information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
2. The respondent argued that whilst its deliberations regarding the applicant's hazard complaint have concluded, disclosure of this type of information would prejudice its deliberations in relation to future hazard complaints, because it would compromise the ability of its staff to be frank and open when conducting internal and external consultations about how to deal with a complaint. It is not the case that disclosure would cause embarrassment to the respondent, but rather that it would have a chilling effect on its ability to seek internal advice as to how to deal with hazard complaints.
3. In Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221, the Appeal Panel stated that the focus of cl 1(e) goes beyond prejudice to particular deliberative processes and includes prejudice to an agency's deliberative processes generally. Further, in Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [107], the Tribunal stated: 107. Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45. Callinan and Heydon JJ. Stated at paragraph [121]: 121. The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed...
4. Similar comments were made in ECN v Commissioner of Police [2020] NSWCATAD 153, at paras [63]-[69]. The Tribunal stated that in relation to the disclosure of internal deliberations about a complaint regarding police conduct: 68. Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that a public interest that supports the effective oversight of complaints under Pt 8A of the Police Act should be given significant weight. From my review of the information before the Tribunal, the information contained in document four has not previously been disclosed to the applicant. On balance, I consider that the applicant's personal interests and the public interest in the operations of agencies and how they will deal with members of the public should be given less weight. Accordingly, document four should not be disclosed.
5. The respondent argued that based on Mr Armstrong's evidence, cl 1(e) should be given significant weight.

Clause 1(f) of the table to s 14(2) of the GIPA Act

1. Clause 1(f) provides that there is a public interest against disclosure if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
2. The respondent argued that the reasons relied upon in relation to cll 1(d) and 1(e) also support reliance on cl 1(f) and that this should also be given significant weight.

Clause 1(g) of the table to s 14(2) of the GIPA Act

1. Clause 1(g) provides that there is a public interest against disclosure if disclosure of the information could reasonably be expected to find an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
2. The respondent argued that the reasons relied upon in relation to cll 1(d) and 1(e) also support reliance on cl 1(g) and that this should also be given significant weight.

Clauses 1(h) and 2(b) of the table to s 14(2) of the GIPA Act

1. Clause 1(h) provides that there is a public interest against disclosure if disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
2. Clause 2(b) provides that there is a public interest against disclosure if disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law.
3. The respondent argued that cll 1(h) and 2(b) apply to the withheld information in documents 2022F, 2023N and 2023R. In particular: 1. Clause 1(h) applies because at the date of the hearing, the evidence indicates that the investigation by NPWS regarding the applicant's property was still continuing. This is indicated in the letter from NPWS that is annexed to Ms Smith's first affidavit. Documents 2022F, 2023N and 2023R include more specific information regarding the subject matter of the investigation and its progress at relevant times. 2. Clause 2(b) applies because release of the withheld information could reasonably be expected to prejudice the investigation that was being conducted by NPWS.
4. The respondent argued that these considerations should be given significant weight.
5. The respondent accepted that there are public interest considerations in favour of disclosure, which include that disclosure could reasonably be expected to inform the public about the respondent's operations as an agency and its practices for dealing with bushfire hazard complaints and responding to potential bushfire hazards. Further, the information sought in the GIPA request contains some personal information of the applicant, as it relates to the property that he occupies and a bushfire hazard complaint that he made in that capacity.
6. Ms Kirk stated that the respondent is personally interested in how his bushfire hazard complaint was determined by the respondent and this is a personal factor which can be taken into account as a consideration that favours disclosure of information under s 55(2) of the GIPA Act. However, this Tribunal is not the appropriate forum to review the management of the applicant's bush fire hazard complaint by the respondent. She argued that the public interest in favour of disclosure of the information to the applicant about the respondent's investigation of his bush fire hazard has been substantially met by its letter to the applicant dated 20 April 2023, which dismissed his hazard complaint, and the further disclosure on 1 November 2023.
7. Ms Kirk concluded that the public interest considerations against disclosure of the withheld information outweigh those in favour of disclosure. Therefore, the Tribunal should find that there is an overriding public interest against the disclosure of that information.
8. Ms Kirk also argued that the Tribunal should find that the respondent does not hold any information other than that included in the schedule. This is supported by the evidence of Lauren Smith.
9. Ms Kirk relied upon the decision of the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska). I note that the Appeal Panel stated, relevantly: 43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
10. Ms Smith provided evidence of the searches that the respondent conducted of its internal systems to identify information that was responsive to the GIPA request, including searches of Guardian and its predecessor - BRIMS. These searches took more than eight hours, excluding the additional searches that she undertook in January 2024. Her evidence is that she is not aware of any additional searches that could reasonably be undertaken to locate any additional information that is responsive to the applicant's GIPA request.
11. Ms Kirk also argued that the respondent is not obliged to create new records in order to provide an explanation of its decision to dismiss the applicant's hazard complaint. The evidence indicates that an explanation was provided to him on 20 April 2023, and that document was released to him.

Applicant's case

1. The Senior Member administered an oath to the applicant and he proceeded to read from an "introduction" that he had prepared. He stated that there is an independent Christian primary school on the relevant property, as well as a house and a farm building. All buildings and land uses "are legal."
2. The applicant expressed his opinion that NPWS is in breach of s 63 of the Rural Fires Act, as it is not taking practicable steps to prevent the occurrence of bushfire on and to minimise the danger of spread of the bushfire. He lodged a complaint with the respondent about this on 13 September 2023 and it was dismissed eight months later (on 20 April 2023). He stated, relevantly: …My position is the RFS and the National Parks and Wildlife Service have failed in their statutory duty to prevent bushfires. I plan on taking legal action against both the Rural Fire Service and the National Parks and Wildlife Service.
3. The applicant also expressed the view that the Minister for Environment was misled by the respondent, as follows: The summary of the situation is that there is one document which is 2022F which is currently being withheld and there are six other documents which are withheld in part through redactions. Since the release of document 2023F1, that is the letter from the RFS to the National Parks by the Crown Solicitor's Office, there are now doubts as to whether the RFS has correctly identified all correspondence covered by my GIPA application. So, what I am seeking?
4. The applicant stated that he wants NCAT to set aside the decision under review and that it should take action under s 112 of the GIPA Act. He stated, relevantly: I believe that these proceedings have shown that the RFS has failed to exercise in good faith the functions conferred on it. As such, I believe NCAT should bring this matter to the attention of the Minister for Environment as she has been misled in this letter and also the minister for the Emergency Services who is the appointer of the Commissioner of the New South Wales Rural Fire Service. I might just leave it there, Mr French, that's really my introduction. I really would, the next bit is about a summary and trying to wrap up my thoughts on things…
5. The applicant then made extensive submissions in which he speculated regarding the reasons for NPWS to object to the release of information sought in his GIPA request. He asserted that NPWS could have been involved in these proceedings by providing a statement, although I note that he took no action to join NPWS to these proceedings. He asserted that there is no basis for NPWS taking any action against him and that the respondent's reliance on information that there is an ongoing NPWS investigation "seems, I think, unacceptable."
6. The Senior Member asked the applicant if this is relevant because the emails that have been withheld relate to the NPWS investigation? The applicant replied, "That's right, Mr French." He argued that the term "ongoing investigation" has been loosely thrown around. He also speculated to the effect that the respondent and the Crown Solicitor's Office "have formed the view that certain documents are not correspondence. And therefore, have likely not been provided in the closed bundle to NCAT." With respect to the applicant, he has not filed any evidence to support that speculation.
7. Otherwise, the applicant's evidence and submissions were focussed on the investigation of his bush fire hazard complaint rather than the administrative review of the respondent's decision under the GIPA Act. I have not set those submissions out in this decision as they are not relevant to the issues that the Tribunal is required to determine.

Respondent's case in reply

1. The respondent replied to the applicant's request for a determination under s 112 of the GIPA Act on the basis that it had failed to act in good faith in the exercise of its functions. It stated that this section applies if the Tribunal is of the opinion - upon the completion of an administrative review - that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. However, the applicant is asserting a lack of good faith in the respondent exercising its functions under the Rural Fires Act and this is not relevant to the current proceedings.

Documents lodged with the Tribunal on a confidential basis

1. The respondent lodged copies of the withheld information with the Tribunal on a confidential basis and it is necessary for the Tribunal to apply the public interest test to that information.
2. For that reason, I determined that it was appropriate to consider the confidential information in chambers, in the absence of the applicant, pursuant to s 107 of the GIPA Act.
3. I also considered that it was necessary to make an order under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), prohibiting the disclosure of evidence lodged with the Tribunal on a confidential basis, as the transcript did not indicate that such an order was made by the Senior Member during the hearing of the matter.
4. I refer to the index of documents attached to the updated evidence that was lodged by the respondent on a confidential basis and I have adopted the numbering in that document for the purposes of applying the public interest test.

GIPA Act

1. Section 3(2) states that the object of the Act is to open government information to the public and: (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. Section 5 provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
3. Section 9 confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
4. Section 12 provides for public interest considerations in favour of disclosure.
5. Sections 13 and 14, relevantly provide: 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. 14 Public interest considerations against disclosure (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. (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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)- (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, or… (f) prejudice the effective exercise by an agency of the agency's functions, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)… 2. Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - …(b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,
6. Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles- (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
7. Section 53 provides: (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
8. Section 54A provides: Consultation with other agencies (1) An agency may, in response to an access application, consult with any other agency for the following purposes - (a) to determine whether there is an overriding public interest against disclosure of the information, (b) to identify a person that may be required to be consulted under section 54. (2) An agency may be consulted under this section even if the agency would not reasonably be expected to have concerns about the disclosure of the information.
9. Section 55 provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application" ) into account as provided by this section-- (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note : An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
10. Section 58 provides: How applications are decided (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note - These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
11. Section 80 sets out those decisions which are 'reviewable decisions' under Part 5. Relevantly, 'a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)' is a reviewable decision pursuant to s 80(i).
12. A person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision (s 100 of the GIPA Act). The onus on the agency is to establish that its decision is justified (s 105(1) of the GIPA Act).
13. Section 107 provides: Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

The ADR Act

1. Section 63 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, 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.

The NCAT Act

1. As previously indicated, the Tribunal was reconstituted pursuant to an order made under s 52 of the NCAT Act, which provides: Reconstitution of Tribunal during proceedings (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member - (a) becomes unavailable for any reason, or (b) ceases to be a member, or (c) ceases to have a qualification required for participation in the proceedings, or (d) is directed by the President not to take part in the proceedings. (2) The President may not replace a member unless the President has first - (a) afforded the parties an opportunity to make submissions about the proposed replacement, and (b) taken any such submissions into account. (2A) The President must not make a direction under subsection (1)(d) in relation to a member unless the President - (a) has consulted the member, if it is reasonably practicable to do so, and (b) is satisfied that making the direction is - (i) in the interests of justice, and (ii) in the interests of achieving the expeditious and efficient conduct of the proceedings, and (iii) otherwise appropriate having regard to the objects of this Act. (2B) The President may give directions as to the member or members who are to constitute the Tribunal after the consideration of a matter by the Tribunal has commenced. (3) The Tribunal as reconstituted under this section is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.
2. Section 64 provides, relevantly: Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

Consideration

1. The legal principles are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
2. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
3. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
4. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
5. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act.
6. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified.
7. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
8. In Wojciechowska, the Appeal Panel considered the nature of the issues on an application to review a decision that information is not held and it stated (at [40]-[42]): 40. In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal's power when reviewing an "information not held" decision, stating at [33]: The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. 41. I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". I do not understand the Appeal Panel in Klaric to suggest otherwise. 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.
9. Applying these principles, the Appeal Panel considered the correct approach to be: 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: a. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1)-(5); b. determine whether the agency has proved any relevant factual issues on the balance of probabilities; c. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; d. applying those findings, decide what the correct or preferable decision is; e. affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
10. The Tribunal has affirmed the decision in Wojciechowska in a number of subsequent matters, including Seremitis v Commissioner of Police [2020] NSWCATAD 317; Tisdale v Cumberland City Council [2021] NSWCATAD 132 and CLT v Secretary, Department of Education [2022] NSWCATAD 34. However, principles that were developed under Shepherd remain relevant to considering the factual questions that Wojciechowska requires the Tribunal to ask and, particularly whether the obligation under s 53 of the GIPA Act has been complied with. Therefore: 1. What constitutes a reasonable search will vary with the circumstances; However, key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. 2. A key question is whether further searches will locate other documents: Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80 at [51]; Mino v Legal Aid NSW [2015] NSWCATAD 245 at [30]; and 3. While there may be an expectation or obligation that an agency holds the information requested, a failure to locate the information does not automatically mean that the agency has failed to comply with the requirements of s 53(2). Rather, it can also mean that the agency does not hold the information, which is a decision open to the agency to make under s 58(1)(b) of the GIPA Act: Fisher No 2;
11. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher No 1); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
12. The Appeal Panel considered the operation of s 112 in Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [48]-[60], and it stated, relevantly: 49. Section 112 has four elements: (1) the formation of the opinion ("if NCAT is of the opinion"); (2) the circumstances in which the opinion may be formed ("as a result of an NCAT administrative review"); (3) the nature of the opinion ("that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act"); and (d) the fact that bringing the matter to the attention of the Minister is discretionary ("may bring the matter to the attention of the Minister"). 50. The second element is that the opinion must be formed "as a result of an NCAT administrative review". The administrative review is the review of any reviewable decision the Department has made under the GIPA Act. We agree with the Tribunal's finding that s 112 does not give the Tribunal power to carry out an inquiry into the officer's conduct that is separate from or additional to the administrative review proceedings… 58. The Tribunal and the Appeal Panel have specific powers to take certain action in accordance with s 111 and s 112 of the GIPA Act. The power in s 111 is to refer any matter to the Information Commissioner that NCAT considers is "indicative of a systemic issue in relation to the determination of access applications …" The power in s 112 is to bring to the Minister's attention a failure of an officer to exercise in good faith a function conferred on the officer. Although s 112 is headed 'improper conduct', headings to these sections are not part of the GIPA Act: Interpretation Act 1987, s 35(2). The Tribunal does not have power to bring to the attention of the Minister any conduct that the Tribunal may regard as improper. An opinion must be formed that the conduct is "a failure to exercise in good faith a function conferred on the officer." Nor does the Tribunal have the power under s 112 to bring to the attention of the Minister an alleged offence under the GIPA Act unless the conduct concerned also meets the test set out in s 112… 59. The Tribunal has discussed what is meant by good faith in Saggers v Environment Protection Authority [2013] NSWADT 204 and Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189 at [36]. We note that many of the submissions Mr Zonnevylle made in these proceedings were made and addressed by the Tribunal in previous proceedings: Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47.
13. In Saggers, the Administrative Decisions Tribunal held that the concept of "good faith" included a subjective element. Therefore, if in carrying out their functions under the GIPA Act, the relevant officer made a real and genuine attempt to answer the request for information, and to perform the function correctly, the officer will have exercised their functions in good faith: (at [50]-[51]).
14. In Joseph v Kiama Municipal Council (No 3) [2023] NSWCATAD 243 (Joseph) , the applicant sought to run a case that was focussed on obtaining a referral to the Minister at an interlocutory stage of administrative review proceedings brought under the GIPA Act. In determining that matter, I drew the parties' attention to the Tribunal's decision in Zonnevylle, and I expressed the view that the Tribunal's role was to conduct an administrative review of the decision made in relation to the GIPA Act and not to conduct an investigation into the conduct of the respondent and its officers.
15. In Joseph, the applicant rejected the Tribunal's view and he argued that the Tribunal has a duty to refer the matter to the relevant Minister under s 112 of the GIPA Act. I rejected that argument and ultimately found, based on the evidence before me, that the applicant's allegations under s 112, with respect to the management of his GIPA request, had not been made out and I declined to make any referral.
16. For the reasons stated in Joseph, at [195], I remain of the view that it is not the role of this Tribunal to conduct an investigation into the conduct of the respondent and its officers in investigating the applicant's bush fire hazard complaint.
17. This Tribunal does not have jurisdiction to review the conduct of the respondent and/or any other agency (such as NBC and NPWS) in relation to the management and investigation of the applicant's bushfire hazard complaint.
18. Accordingly, I am satisfied that the applicant's lengthy submissions on this issue are misconceived and irrelevant to the administrative review of the reviewable decision under the GIPA Act.
19. I note the applicant's assertions that the respondent holds further information, which has not been disclosed, because he believes that certain forms should have been completed during the investigation of his bushfire hazard complaint. However, with respect to those assertions, the respondent's obligation to create and maintain records arises under the State Records Act 1998 (NSW) and not under the GIPA Act.
20. This Tribunal does not have jurisdiction to consider a dispute under the State Records Act in the context of administrative review proceedings that have been commenced under the provisions of the GIPA Act.
21. Accordingly, I regard the applicant's allegations regarding the respondent's record keeping as being irrelevant to the current administrative review under the GIPA Act.
22. Based on the evidence of Ms Smith and Mr Armstrong, which was not seriously challenged by the applicant in his cross-examination in relation to relevant matters, I am satisfied that the respondent conducted reasonable searches and that it does not hold any further documents that are within the scope of the GIPA request.

Public interest considerations in favour of disclosure

1. I am satisfied that the respondent has correctly identified the relevant public interest considerations in favour of disclosure of the withheld information and those considerations against disclosure because the considerations that have been identified are supported by the evidence before me.
2. Section 12(1) of the GIPA Act provides that "there is a public interest in favour of the disclosure of government information". Section 12(2) provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. The respondent identified the relevant public interest considerations as being: (1) the general public interest in favour of the disclosure of government information, relying on ss 3 and 12(1) of the GIPA Act; and (2) the information is personal information of the applicant.
3. In Commissioner of Police, NSW Police Force v Barrett (No 2) NSWCATAP 86 at [52], the Appeal Panel found that the weight to be attributed to the first of those considerations will depend on the "functions of the agency to which the access application is directed, and the character of the information".
4. The applicant has complained about the respondent consulting with NPWS and acting upon its objections to the disclosure of the withheld information. In particular, I regard the applicant's argument that the objection received from NPWS was "hearsay," as being misconceived. I am satisfied that the respondent consulted with NPWS as required by s 54A of the GIPA Act and that it was entitled to rely upon the information that NPWS provided in response.
5. Based on the extensive evidence before me, I am satisfied that the public interest considerations in favour of disclosure of the withheld information should be given moderate weight.

Public interest considerations against disclosure

1. In my view, cll 1(d), 1(e), 1(f), and 1(h) of the table to s 14(2) of the GIPA Act applies to document 01 in the Schedule, as the withheld information could reasonably be expected to have one or more of the following effects: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e)); 3. prejudice the effective exercise by an agency of the agency's functions (1(f)); 4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)).
2. In my view, cll 1(d), 1(e), 1(f), 1(h) and 2(b) of the table to s 14(2) of the GIPA Act applies to document 2022A, as the withheld information could reasonably be expected to have one or more of the following effects: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e)); 3. prejudice the effective exercise by an agency of the agency's functions (1(f)); 4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)). 5. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (2(b)).
3. In my view, cll 1(d), 1(e), 1(f), 1(h) and 2(b) of the table to s 14(2) of the GIPA Act applies to document 2022F, as the withheld information could reasonably be expected to have one or more of the following effects: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e)); 3. prejudice the effective exercise by an agency of the agency's functions (1(f)); 4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)). 5. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (2(b)).
4. This is also evidence of consultation between agencies for the purposes of s 54A of the GIPA Act.
5. In my view, cll 1(d), 1(e), 1(f), 1(h) and 2(b) of the table to s 14(2) of the GIPA Act applies to document 2023F, as the withheld information could reasonably be expected to have one or more of the following effects: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e)); 3. prejudice the effective exercise by an agency of the agency's functions (1(f)); 4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)). 5. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (2(b)).
6. In my view, cll 1(d), 1(e), 1(f) and 1(h) of the table to s 14(2) of the GIPA Act applies to document 2023G, as the withheld information could reasonably be expected to have one or more of the following effects: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e)); 3. prejudice the effective exercise by an agency of the agency's functions (1(f)); 4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)).
7. In my view, cll 1(d), 1(e), 1(f), 1(h) and 2(b) of the table to s 14(2) of the GIPA Act applies to document 2023N, as the withheld information could reasonably be expected to have one or more of the following effects: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e)); 3. prejudice the effective exercise by an agency of the agency's functions (1(f)); 4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)). 5. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (2(b)).
8. In my view, cll 1(d), 1(e), 1(f), 1(h) and 2(b) of the table to s 14(2) of the GIPA Act applies to document 2023R, as the withheld information could reasonably be expected to have one or more of the following effects: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1(e)); 3. prejudice the effective exercise by an agency of the agency's functions (1(f)); 4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (1(h)). 5. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (2(b)).
9. I am satisfied that each of the public interest considerations against disclosure of the withheld information that are relied upon by the respondent have been properly applied.
10. In my view, each of the identified public interest considerations against disclosure should be given substantial weight.

Balancing the public interest

1. In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack and Hurst.
2. I have decided that the public interest considerations in favour of disclosure should be given moderate weight, but that the public interest considerations against disclosure should be given substantial weight.
3. I am therefore satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by those identified as relevant in the Table to s 14.

Conclusion

1. I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 11 August 2023, as varied on 1 November 2023.

Orders

1. I make the following orders: 1. Pursuant to s 64(1)(c) of the NCAT Act the disclosure of documentation lodged by the respondent with the Tribunal on a confidential basis is prohibited. 2. The respondent's decision dated 11 August 2023, as varied on 1 November 2023, is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 03 March 2025