Igini v Department of Primary Industries and Regional Development [2025] NSWCATAD 289;

1. On 20 February 2025, the Tribunal received the application for administrative review, which sought review on the following grounds:

(1) Failure to provide full disclosure: The agency failed to provide complete records regarding the contamination of the batch of bottled water despite the public interest in the matter.

(2) Unjustified redactions: The documents released contained excessive redactions under the broad exemptions without clear justification, obscuring critical information regarding public health risks.

(3) Failure to conduct targeted chemical testing: The agency did not conduct Methanethiol (Methyl Mercaptan) testing, the suspected contaminant, citing a sample size limitation without attempting to obtain additional samples.

(4) Refusal to release consumer complaints: DPI heavily redacted BYTE complaint records, failing to provide transparency on the extent of consumer illnesses linked to the contaminated batch.

(5) No justification for refusing a recall or public safety warning: The agency has not provided documentation to explain why no public recall or warning was issued, despite evidence of consumer health risks.

(6) Failure to enforce regulatory action against the manufacturer: The agency has not disclosed whether it investigated or penalised the manufacturer for failing to provide promised lab reports or responding to consumer complaints.

(7) Excessive delays in response: Despite an extended statutory timeframe, the agency did not provide the requested information is a reasonable period, justifying an immediate external review.

1. On 10 June 2025, the applicant applied to the Tribunal to vacate the hearing on the following grounds:

(1) "Misrepresentation of application scope" - He argued that the respondent asserted that his GIPA request did not include investigation reports, risk assessments or records of internal decisions around testing and notification. However, he explicitly sought this information under the headings of "Relief sought" and "Summary of grounds."

(2) "Inadequate disclosure and redaction" - He disputed the respondent's submission that BYTE complaint redactions were minimal, as critical data was obscured, which raises concern over whether the public health aspects were concealed or neglected.

(3) "Witness objections and procedural fairness" - He acknowledged that he is required to apply to the Tribunal under s 48 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) to call witnesses not relied on by the respondent. He requested the Tribunal's guidance or direction on how to do so as "the respondent indicates that my intention to question Mr Edwards on omissions or bias is "irrelevant" and seeks to limit such questioning." He also asserted that the respondent characterises his intended questions to Ms Stanbury and Mr Shaheen as lacking forensic purpose. He stated, "I believe their input may clarify inconsistencies in the document decision-making process and regulatory response. I am not calling them to review regulatory merits, but to clarify factual inconsistences in disclosure under GIPA."

(4) "Request for adjournment to seek legal advice" - He argued that in the light of "procedural restrictions imposed by the respondent and the complex interpretation of s14 exemptions". He requested additional time to seek legal guidance, as he had failed to secure assistance from Legal Aid and unspecified Community Legal Centres, as to how the Tribunal "will assess contested exemptions and witness admissibility."

(5) "Public interest and departmental accountability" - He argued that there is a genuine public interest in understanding the Respondent's regulatory response to a contaminated product - the released materials are incomplete and fail to disclose whether any safety actions were even considered.

1. Section 36 of the NCAT Act provides that the guiding principle for that Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings". It requires the Tribunal to give effect to the guiding principle when exercising any power given to it by the NCAT Act or the procedural rules, or in interpreting any provision of the NCAT Act or the procedural rules.
2. Section 36(4) of the NCAT Act provides that the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
3. I am satisfied that the applicant would not be denied procedural fairness if the Tribunal conducted an administrative review of the reviewable decision and determined what the correct and preferable decision is based upon all of the information and evidence before it.
4. The applicant chose not to exercise his right to seek an internal review of the reviewable decision, although he had a statutory right to do so. He filed a statement, which appears to comprise both evidence and submissions, and the Tribunal was satisfied that he was given ample opportunity to obtain legal advice and assistance during the case conference process.
5. The Tribunal is satisfied that the applicant's belated argument that he could not proceed with his application without legal assistance is contrary to the approach he adopted during the case conference process, and that to allow the application for adjournment on that basis would be contrary to the guiding principles that it is required to apply. It therefore refused the adjournment application.
6. In relation to the applicant's request to call two officers of the respondent whom the respondent was not calling as witnesses, the Tribunal is satisfied that the applicant's stated reasons for calling them do not disclose any forensic purpose that is relevant to the current administrative review.

1. The respondent stated that after it completed its consultation with third parties under s 54 of the GIPA Act, it decided to release further information to the applicant. This information (in a redacted form) is found at Tab 8 of its open bundle of documents and unredacted copies are found in its confidential bundle of documents.
2. The respondent stated that it decided to withhold two types of information, namely:

(1) Personal information of third parties to which cll 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act applies; and

(2) Information going to the manufacturing process of the spring water to which cll 1(f), 1(h) 4(d) and 6(1) of the Table to s 14(2) of the GIPA Act applies.

1. The respondent stated that s 136(1) of the Food Act is a "secrecy provision" and that the information that the authority obtained cannot be disclosed unless one of the specified exceptions apply.
2. The respondent also redacted information that it considered outside the scope of the GIPA request and this information is found at Tabs 6 and 7 of the open bundle of documents. The documents relate to testing of batches of spring water that were not referred to in the GIPA request.
3. The respondent stated that it does not hold any other information that is responsive to the GIPA request and that it conduced reasonable searches to locate relevant information. After the authority tested the batch, it decided not to take any further regulatory action in relation to the complaint.

1. The respondent relied upon an open bundle of documents, which included an affidavit of Alan Edwards dated 2 May 2025. This was admitted into evidence and marked exhibit R1.
2. Mr Edwards deposed to his position as a Food Safety Officer - Grade 5 - Senior Food Incident Response and complaints Coordinator with the authority. He stated that when a complaint is received, he decides what steps the authority should take next and s 37 of the Food Act empowers an officer to walk into a food business without a search warrant and to require the business to provide all sorts of information relating to it and the food it supplies.
3. Mr Edwards deposed that s 136 of the Food Act exists to balance out the very significant powers that the authority has , it provides protection to businesses that are subject to investigation so that the information that the authority obtains is not released in a way that causes them harm. It is important for the authority to maintain the confidence, respect and trust of the food industry.
4. Mr Edwards also deposed that the authority is also very concerned to preserve the confidentiality of information held relating to food businesses, for the sake of the businesses and the effective regulation of the food industry as a whole and the disclosure of information revealing confidential processe4s could cause very serious harm to a food business. If food businesses believed that the authority would share their confidential information with the world, they would be more reluctant to share information with it and while it might ultimately be able to obtain the information required using is compulsory powers, but this would take more time and resources, delay investigations and delay it taking effective action.
5. Mr Edwards stated that in relation to the complaint that is the subject of these proceedings, he allocated it to an officer within his team, who then conducted the investigation and collected the water samples that were sent for analysis. He decided what tests should be conducted and the test results were released to the applicant. That testing did not indicate any problems with the water and the authority did not consider it necessary to take any further regulatory action against the manufacturer.
6. Mr Edwards also gave evidence as to the searches that were conducted to locate information that is within the scope of the GIPA request.
7. The applicant required Mr Edwards to attend for cross-examination and he was called and sworn. He confirmed that the contents of his affidavit were true and correct subject to 2 minor amendments to para 4. The Tribunal noted the amendments which were not material in nature.
8. In cross-examination, the applicant asked what Mr Edwards' role was at the time of the complaint. He replied to the effect that he was required to triage all complaints about businesses within the Sydney Metropolitan area and complaints of illnesses.
9. The applicant asked whether Mr Edwards or his team prepared any final report? He replied, "No, we don't do that."
10. The applicant requested a period of time in which to review Mr Edwards' affidavit and the Tribunal allowed him a period of 20 minutes in which to do so.
11. When the hearing resumed, the applicant stated that he did not have any further questions for Mr Edwards and the Tribunal excused him from further attendance.

1. The applicant relies upon a bundle of documents headed "Schedule of documents," to which there eight indexed attachments including his "Statement to NCAT" dated 2 June 2025. This was admitted into evidence and marked Ex A1.
2. In his Statement to NCAT, the applicant summarised the grounds of review that are set out in the current administrative review application and stated that he sought full and unredacted disclosure of all of the information requested in the GIPA request. He also argued that the respondent's alleged failure to take appropriate regulatory action against the manufacturer is a breach of public duty and undermines public confidence.
3. The applicant complained of a lack of transparency by the respondent and that images that it provided to him are not relevant (see Tab 3).
4. The Tribunal asked the applicant what he understood "commercial in confidence" to mean? He replied that para 6 (cl 6 of the Table to s 14(2) of the GIPA Act) relates to investigations and investigation findings. He pressed his request for emails and notes that discussed closure of the investigation.
5. The Tribunal asked the applicant for his views about the public interest considerations against disclosure that the respondent relies upon, which are clearly set out in its Submissions in reply. He responded that cl 1(f) relates to Court proceedings, however, the Tribunal noted that cl 1(f) is not referred to in those submissions.
6. The Tribunal asked the applicant whether he agrees or disagrees that the public interest considerations against disclosure relied upon by the respondent apply? He replied, "I need more time." However, he then conceded that cl 6 applies, but that it should be given less weight than the respondent gave it. He stated that he was "not prepared to give a full answer for why he holds that view."
7. The applicant then argued that cl 1(h) does not apply to the matter. The Tribunal asked him to state why he formed that view, and he replied, "I can't answer that as I am not 100% sure".
8. The applicant then asserted that the BYTE record does not show that a proper investigation was conducted. However, the Tribunal stated that it is not relevant to the administrative review of the decision under the GIPA Act as it does not have any power regarding the conduct of investigations under the Food Act.
9. In relation to cl 4(d) of the Table to s 14(2) of the GIPA Act, the applicant stated that he is not seeking information of the type set out in para 66 of his Submissions.
10. The Tribunal asked the applicant whether he agreed that cll 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act apply to the matter. He relied that he was not able to continue.
11. The Tribunal asked the applicant what he wished to say about the respondent's implied decision that certain information is not held and whether its searches were reasonable. He stated that he could not continue without assistance from the Tribunal., but the Tribunal confirmed that its role is to conduct the administrative review and to make the correct and preferable decision based on all of the evidence before it. It does not act as an advocate for either party.

1. The respondent stated that an issue for determination is whether the manufacturing processes for the spring water are subject to cl 6 of the Table to s 14(2) of the GIPA Act. This applies to investigations in response to a complaint, which included a site visit. During that site visit, the authority obtained information regarding the manufacturing processes etc and the photographs provided to the applicant are indirectly relevant to the GIPA request.
2. The respondent stated that Mr Edwards' evidence was not challenged in cross-examination and the Tribunal should accept his evidence regarding the public interest considerations against disclosure and the weight that should be given to them.
3. In relation to cl 1(h) of the table to s 14(2) of the GIPA Act, the respondent noted that the applicant argued that a final report is needed for this to apply. However, Mr Edwards' evidence is that the authority did not consider it necessary to undertake any further investigations after testing was completed.
4. In relation to the issue of whether reasonable searches were conducted, the evidence of the searches that the respondent undertook is set out in the open bundle of documents and the Tribunal should be satisfied that these were appropriate and reasonable.
5. The respondent argued, based on the evidence of Mr Edwards, that the Tribunal should be satisfied that there is no reason to expect that it holds any further information relating to regulatory action. It relied upon the Appeal Panel's decision in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) in this regard.
6. Accordingly, the respondent concluded that the correct and preferable decision is to affirm the decision under review.

1. The Tribunal considered it necessary to conduct a hearing in relation to the disputed information under s 107 of the GIPA Act. This was conducted in the applicant's absence.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]

Determination regarding the disputed information

1. The Tribunal is satisfied that the redactions in the disputed information were appropriately made under cll 3(a) and 3(b) of the table to s 14(2) of the GIPA Act.
2. However, the Tribunal is also satisfied that the name "Dominic" at page 7 of the disputed documents should be disclosed to the applicant, as this does not disclose his identity.
3. As the applicant did not press his claim for access to the remainder of the disputed information, it was not necessary for the Tribunal to make a determination.

1. Section 3 provides that the object of the Act is to open government information to the public and subs (2) provides that it is the intention of Parliament that (a) the GIPA 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 that 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 and provides general examples.
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

...

(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...

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)...

1(f) - prejudice the effective exercise by an agency of the agency's functions,...

1(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) ...

3(a) - reveal an individual's personal information,...

3(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,...

4(d) - prejudice any person's legitimate business, commercial, professional or financial interests,...

6(1) - There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

1. 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.

1. Section 54 provides:

54 Consultation on public interest considerations

(1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that -

(a) the information is of a kind that requires consultation under this section, and

(b) the person may reasonably be expected to have concerns about the disclosure of the information, and

(c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

(2) Information relating to a person is of a kind that requires consultation under this section if the information -

(a) includes personal information about the person, or

(b) concerns the person's business, commercial, professional or financial interests, or

(c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or

(d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government).

Note -

The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.

(2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements -

(a) that information concerning the application is likely to be included in the agency's disclosure log and that the person can object to this,

(b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection.

(3) If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased.

(4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

(5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

(6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending.

(7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.

1. Section 58 provides:

58 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.

1. Section 61 provides:

61 Notice of decision to refuse to provide access

Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following -

(a) the agency's reasons for its decision,

(b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based,

(c) the general nature and the format of the records held by the agency that contain the information concerned.

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part -

... (d) a decision to provide access or to refuse to provide access to information in response to an access application,

(e) a decision that government information is not held by the agency,

(f) a decision that information applied for is already available to the applicant,

(g) a decision to refuse to confirm or deny that information is held by the agency,

(h) a decision to defer the provision of access to information in response to an access application, ...

1. Section 100 provides that a person who is aggrieved by a reviewable decision of an agency may apply to this Tribunal for administrative review, but an aggrieved person who is not the access applicant is not entitled to apply to NCAT for administrative review of a decision if the person is still entitled to apply for an internal review of the decision under Division 2.
2. Section 105 provides:

105 Onus on agency to justify decisions

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

(4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.

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.

Administrative Decisions Review Act 1997 (NSW) (the ADR Act)

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.

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it -

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal -

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

64 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.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

The Food Act

1. Section 136 provides:

Disclosure of certain confidential information

(1) A person who has, in connection with the administration or execution of this Act, obtained information relating to manufacturing secrets or commercial secrets or confidential processes must not disclose that information unless the disclosure is made -

(a) with the consent of the person from whom the information was obtained, or

(b) in connection with the administration or execution of this Act, or

(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(d) in accordance with a requirement imposed by or under this Act or any other law, or

(e) to a person administering or enforcing a law of another jurisdiction that corresponds to this Act or any other law prescribed by the regulations, or

(f) to the Commonwealth Food Authority, or

(g) to a law enforcement authority, or

(h) with other lawful excuse.

Maximum penalty - 500 penalty units.

(2) A person is not guilty of an offence under this section if the information was publicly available at the time the disclosure concerned was made.

1. The legal principles are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act. The relevant time for determination of the correct and preferable decision is the time that the decision is made: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
2. 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.
3. 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.
4. 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) to (d) operate to promote disclosure of information (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.
5. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. In this matter, the onus is on the applicant "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).

Public interest considerations in favour of disclosure

1. The respondent identified the following considerations, in addition to the general presumption in favour of disclosure of Government information:

(1) Disclosure could reasonably be expected to promote open discussion of public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance;

(2) Disclosure could reasonably be expected to inform the public about the operations of agencies and, in particular, the policies and practices for dealing with members of the public;

(3) Disclosure could reasonably be expected to provide the public with information about the handling of food-related complaints processes and investigations within New South Wales. ensure effective oversight of the expenditure of public funds;

1. The applicant did not raise any specific public interest considerations in favour of disclosure, although he made a general complaint in his statement that there had been "inadequate" disclosure and that the redactions to complaint data (BYTE) had obscured critical data, which "raises concern over whether the public health aspects were concealed or neglected."
2. I am satisfied that the public interest considerations identified by the respondent are both appropriate because of the limited scope of the dispute. I am further satisfied that these considerations should be afforded significant weight.

Public interest considerations against disclosure

1. The respondent identified cll 1(f), 1(h), 3(a), 3(b), 4(d) and 6(1) of the Table to s 14(2) of the GIPA Act.

Clause 1(f) - disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions

1. I accept the evidence of Mr Edwards that disclosure of the disputed information could reasonably be expected to prejudice the effective exercise of the authority of its functions under the Food Act. He stated that s 136 of the Food Act exists to balance out the very significant powers that the authority has. It provides protection to businesses that are subject to an investigation so that the information that is obtained is not released in a way that causes them harm and it is important for the authority to maintain the confidence, respect and trust of the food industry.
2. Mr Edwards also deposed that the authority is also very concerned to preserve the confidentiality of information that it holds in relation to food businesses, for the sake of the businesses and the effective regulation of the food industry as a whole. If food businesses believed that the authority would share their confidential information with the world, they would be more reluctant to share information with it and while it might ultimately be able to obtain the information required using is compulsory powers, but this would take more time and resources, delay investigations and delay it taking effective action.
3. Mr Edwards stated that he allocated the complaint in this matter to an officer within his team, who then conducted the investigation and collected the water samples that were sent for analysis. He decided what tests should be conducted and the test results were released to the applicant. That testing did not indicate any problems with the water and the authority did not consider it necessary to take any further regulatory action against the manufacturer.

Based on this evidence, I am satisfied that cl 1(f) applies and that it should be given substantial weight. Clause 1(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)

1. I accept the evidence of Mr Edwards that disclosure of the disputed information could reasonably be expected to prejudice 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).

Based on Mr Edwards' evidence, I am satisfied that this consideration should also be given substantial weight. 3(a) - disclosure could reasonably be expected to reveal an individual's personal information,

1. Clause 4(1) of Sch 4 of the GIPA Act defines "personal information" as meaning "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion."
2. Clause 4(2) provides that it includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. However, by operation of sub-cl (3), it does not include: (a) information about an individual who has been dead for more than 30 years; (b) information about an individual (comprising their name and nonpersonal contact details, including their position title, public functions and the agency in which they work) that reveals nothing more than the fact that they were engaged in the exercise of public functions; (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. Therefore, personal information is "information or an opinion" about an individual whose "identity is apparent or can reasonably be ascertained from the information or opinion."
3. A comparable definition is found in s 4 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA). Considering the reach of that definition, in Office of Finance and Services v APV and APW [2014] NSWCATAP 88, the Appeal Panel held at [4]:

To be "personal information" the information or opinion must be about an individual "whose identity is apparent or can reasonably be ascertained from the information or opinion." We have decided that this phrase does not mean that the individual's identity must be apparent or reasonably ascertainable solely from the information or opinion. Depending on the circumstances, other information may be consulted in order to ascertain the identity of the person concerned. In the circumstances of this case where APV's and APW's identity could be ascertained from the information or opinion in combination with information on a website controlled by the agency itself, the information was personal information.

1. In DRP v Orange City Council [2020] NSWCATAD 220, the Tribunal observed that telephone numbers also have a bearing on the issue:

The Administrative Decisions Tribunal found that the mobile, home and work telephone numbers, and email addresses of an objector to a prospective development application was personal information (see Donnellan v Ku-ring-gai Council (2013) NSWADT 115 (at [39]-[43]).

The following principles may be derived from the above cases about when information is "personal information":

the information must be information or an opinion about an individual;

that individual's identity must be apparent or must reasonably be ascertainable from the information or opinion;

other information may be consulted in order to determine whether the identity of the person concerned can reasonably be ascertained;

mobile, home and work telephone numbers, and email addresses may be personal information.

1. Based on the evidence before me, and after reviewing the unredacted information lodged on a confidential basis, I am satisfied that disclosure of the disputed information could reasonably be expected to reveal an individual's personal information, including their names and contact details. I am therefore satisfied that cl 3(a) applies to the disputed information, with the exception of the name "Dominic" on page 7 of the confidential bundle of documents, and that this should be afforded significant weight.

3(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

1. Based on the decisions in Office of Finance and Services v APV and APW and DRP v Orange City Council, I am satisfied that cl 4(b) also applies to the disputed information and that this consideration should be afforded significant weight.

4(d) - Disclosure could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests,

1. I accept the evidence of Mr Edwards in relation to this issue. His evidence was not challenged and clearly indicates that disclosure of the disputed information could reasonably be expected to prejudice the legitimate business, commercial, professional or financial interests of the manufacturer who was the subject of the investigation by the authority.
2. I am satisfied that this consideration should be afforded substantial weight.

6(1) - There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

1. I accept the evidence of Mr Edwards that s 136 of the Food Act is a secrecy provision and that none of the stated exceptions to s 136 apply to this matter.
2. The respondent afforded this consideration medium weight and I consider this to be appropriate based on the evidence before me.

1. I have applied the public interest test in the manner set out by the Administrative Decisions Tribunal in Flack and Hurst, by starting with the presumption in favour of disclosure of information and: (1) identifying the public interest in favour of disclosure (s 12); (2) identifying the public interest against disclosure with reference to the items listed in the table in s 14(2) of the GIPA Act; and (3) determining whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
2. As previously indicated, I am satisfied that the public interest considerations in favour of should be given substantial weight.
3. However, I am satisfied that the public interest considerations against disclosure should be afforded significant weight.
4. It follows that I am satisfied that with the exception of the name "Dominic" on page 7 of the confidential bundle, the public interest considerations against disclosure of the disputed information outweigh those in favour of disclosure and that there is an overriding public interest against disclosure.

1. I am satisfied that the correct and preferable decision is to vary the reviewable decision by ordering the respondent to disclose to the applicant the name "Dominic" on page 7 of its confidential bundle, but that it is otherwise affirmed.

(1) The respondent is to disclose to the applicant a copy of page 7 of the confidential bundle with the name "Dominic" unredacted.

(2) The reviewable decision is otherwise 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.

04 December 2025 - Removing the duplicate line at the end of decision;

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