Jeray v Office of the Information Commissioner

NCAT Administrative and Equal Opportunity|2024-04-05

Background

These proceedings concern a request (the GIPA request) that Ivan Jeray (the applicant) made to the Information and Privacy Commission (the respondent) for the release of information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) on 20 June 2023. The GIPA request was in the following terms: All records that indicate the reasons why the Information Commissioner: - did not appear and be heard in case no […] and […] and - chose to appear and be heard in case no. […] In the NSW Civil and Administrative Tribunal.
On 27 July 2023, the respondent made a decision that the GIPA request was invalid by operation of s 43(2) of the GIPA Act, because it sought access to 'excluded information' within the meaning of cl 2 of Sch 2 of the GIPA Act.
On 4 October 2023, the applicant filed the current application for administrative review, in which he named the respondent as the Information Commissioner of NSW. He sought a review of decision dated 27 July 2023 on the following grounds: The Information Commissioner of NSW has wrongly decided the applicant's GIPA application is invalid under s 43 of the GIPA act because it's wrongly alleging it is requesting excluded information under cl 2 of schedule 2 of the GIPA Act that relates to the review and complaint handling functions of the Office of the Information Commissioner.

Application for a stay of proceedings

Senior Member French heard the application for a stay on 12 February 2024. The applicant was self-represented and Mr G Farrugia, Crown Solicitor's Office, appeared for the respondent.
The applicant complained that the order on 6 November 2023 was made in his absence, which was a denial of procedural fairness, and that the description of the respondent as "Information and Privacy Commission NSW" is "incorrect and misleading". He argued that there is a public interest in ensuring that the respondent is correctly identified in proceedings and a strong public interest in negating the conflation of the roles of the Information Commissioner and Privacy Commissioner.
In relation to this issue, the applicant relied upon his Notice of Appeal, which provided, relevantly: 2. It is in the public interest to ensure that the Office of the Information Commissioner, the Office of the Privacy Commissioner and the Information and Privacy Commission are correctly established, named and functioning in accordance with the applicable legislation of NSW… 4. It is in the public interest to formally declare and correct the Information Commissioner's misplaced belief that the Office of Information Commissioner and Office of Privacy Commissioner were dissolved when the Information and Privacy Commission was created by the Privacy and Government Information Legislative Amendment Bill 2010. 5. It is in the public interest to formally declare and correct that the insertion of sections 14(4) and 94(2) into the Government Information (Public Access) Act 2009 by the Privacy and Government Information Legislative Amendment Bill 2010 compromise the integrity of the Officer (sic) of Information Commissioner and the independence of the Office of Privacy Commissioner.
The respondent argued that the impugned order should be set aside, and while it did not accept that the amended description of the respondent disclosed an error, the description contended for by the applicant "was also acceptable". It stated that as the administrative review did not turn on the alternative descriptions of the respondent, the agency should be described in the manner sought by the applicant "so that the substantive matter could be heard and determined in accordance with the existing timetable". In any event, the Tribunal has no role in reviewing the legislative and administrative arrangements of government (as contended for by the applicant).
Senior Member French refused the application for a stay and he decided to amend the name of the respondent to "Information Commissioner".
On 20 February 2024, the Senior Member issued written reasons for his decision: Jeray v Information Commissioner, in which he identified the following issues for determination: 1. What principles are to be applied in determining if a stay should be granted in the circumstances of this case? 2. Having regard to these principles, should the proceedings be stayed pending the outcome of the applicant's internal appeal? 3. What other orders, if any, ought to be made having regard to the issue that gives rise to the stay application?
The Senior Member stated, relevantly: 32. The overriding principle governing the exercise of discretion to grant a stay is what the interests of justice require in the circumstances of the case: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18]; applied in Bentram v Sabbarton [2014] NSWCATAP 37 at [9] (Bentram) and Antworks Pty Ltd v Mac [2016] NSWCATAP 240 (Antworks). In this respect: i. The applicant bears at least a practical onus of placing or identifying material before the Tribunal that would justify such an order being made, ii. The mere lodgement of an appeal is not sufficient to justify such an order, iii. Significant weight will be given to circumstances where a stay is reasonably necessary to secure the effectiveness of an appeal; that is, to circumstances where an appeal would be rendered worthless or futile if a stay were not granted, iv. the strengths of the applicant's case on appeal is also a relevant consideration. (Bentram at [9] and Antworks at [16] and the authorities cited there). 33. This is not a case where the appeal would be rendered worthless or futile if a stay of the first instance proceedings is not granted. The substantive proceedings are of very narrow compass. They require the Tribunal to determine if the agency's decision that the applicant's access application was invalid is incorrect. The agency has not sought to avoid that application because of its description by either the applicant or as amended by the Tribunal. It has responded to the applicant's administrative review application by participating in the proceedings and it has filed evidence and submissions in response to the Tribunal's procedural directions. There is no reason to believe that the agency would not comply with any remedial order made by the Tribunal because of any inaccuracy in its description pending the outcome of the Appeal. 34. The applicant contends that his appeal serves the important public purpose of drawing attention to what he views as an inappropriate merger of the Information Commissioner's functions with the Privacy Commissioner's Functions, including the establishment of an entity named the "Information and Privacy Commission". He says that the correctness of these administrative arrangements should be decided before the administrative review is completed. 35. However, I cannot see that there is any connection between the issue of the proper description of the agency, and the reviewable decision it made. As I have said, the agency (however described) is before the Tribunal in the proceedings. It does not dispute its responsibility for making the reviewable decision or for assisting the Tribunal in this administrative review. 36. Additionally, NCAT exercises limited statutory jurisdiction only. In the circumstances of this case that is the jurisdiction conferred by the GIPA Act. That jurisdiction does not extend to reviewing the appropriateness of government administrative arrangements for the purpose of governmental functions conferred under legislation. 37. Consequently, while I am satisfied that the applicant's complaint about the re-description of the agency to "Information and Privacy Commission NSW" has substantial merit for the reasons set out below, I am not satisfied that his stated objective of pursuing his appeal is capable of bearing fruit. Having regard to that, the merit of the appeal does not weigh in favour of a stay being granted. 38. In any event, I am satisfied that the inaccuracy in the description of the agency can and ought to be rectified immediately consistent with the Tribunal's guiding principle (as to which see following)… 45. The term 'agency' is defined in s 4 of the GIPA Act to mean, relevantly, '(d) a public office'. That definition is elaborated in Schedule 4, clause 3(a)(a) of the GIPA Act to mean "an office established or continued for a public purpose by or under the provisions of a legislative instrument". The term "Information Commissioner" is defined in clause 1 of Schedule 4 to mean "the Information Commissioner under the Government Information (Information Commission) Act 2009". 46. The Information Commissioner of appointed by the Governor: s 4(1) of the GI(IC) Act. Pursuant to s 10(1) of that Act, the Information Commissioner is a 'statutory office' to which the Government Sector Employment Act 2013 does not apply. 47. Having regard to these provisions I am satisfied that the proper description of the respondent party in these proceedings is the 'Information Commissioner'. 48. As I have stated above, in his Administrative review application the applicant described the 'Information Commissioner NSW'. That description of the agency has no statutory foundation and is therefore not correct…
The Senior Member determined that while cl 2 of Sch 2 of the GIPA Act determines the scope or definition of 'excluded information' for the purpose of s 43 of the GIPA Act, it plays no part in identifying the agency that is responsible for the administration of the GIPA Act legislative scheme, and therefore, the proper respondent in these proceedings.
The Senior Member expressed an opinion that the use of that description in Sch 2 of the GIPA Act is to be understood having regard to s 12 of the Government Information (Information Commissioner) Act 2009 (NSW) (GIIC Act) and s 59 of the Government Sector Employment Act 2013 (NSW) (GSE Act). It is a reference to the body of persons employed in the public service to enable the Information Commissioner to exercise her functions. While that body is an agency for the purposes of the GSE Act (s 3), by operation of s 59(1)(b) and Part 3 of Sch 1 of that Act, a reference to the Information and Privacy Commission is taken to be a reference to the "Information Commissioner" as head of the agency.
The Senior Member concluded that his order did not have the effect of determining the applicant's internal appeal.

Application for leave to appeal against interlocutory decision

On 19 March 2024, the applicant filed a Notice of Appeal against the decision of Senior Member French dated 12 February 2024, on the following grounds: 1. The Information Commissioner of NSW is legally the incorrect respondent named in Order 1 of 12 February 2024 in the Tribunal proceedings below, as the Government is not an agency for the purposes of the Government Information (Public Access) Act 2009. The correct respondent is "The Office of Information Commissioner" of NSW. 2. The Information Commissioner of NSW is legally the incorrect respondent named in decision 2 of the Tribunal's reasons of 20 February 2024, as the Commissioner is not an agency for the purposes of the Government Information (Public Access) Act 2009. The correct respondent is "The Office of Information Commissioner" of NSW.
There were other grounds of appeal, but these are not set out in this decision.

Application for stay refused

On 25 March 2024, Principal Member Simon ordered that an oral hearing of the application for a stay of be proceedings be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). She also refused the application for a stay for reasons that included the following: 5. On 20 March 2024, the Tribunal made directions seeking the views of the parties in relation to the application for a stay of the proceedings and whether a hearing could be dispensed with in relation to that stay application. 6. On 22 March 2024, the respondent provided submissions in relation to the stay application. The applicant provided his submissions on 24 March 2024. On 24 March 2024, the respondent sent an email to the Registry. I have considered those submissions in coming to my decision in relation to the application for a stay… 11. Having considered the submissions of the parties, I refuse to grant a stay of the application pending the outcome of the appeal. 12. The decision under appeal is an interlocutory decision and would require leave of the appeal panel. The Information Commissioner is the presently named respondent in these proceedings. The applicant's grounds of appeal appear to be that the Information Commissioner is not an "agency" for the purposes of the GIPA Act. The applicant now seeks that the respondent be named as "The office of the Information Commissioner". It is unclear whether the applicant sought that amendment before the tribunal on 12 February 2024. 13. The Information Commissioner is an office established under s 6 of the Government Information (Information Commissioner) Act 2009 (a "public office" and an "agency" for the purposes of the GIPA Act) see the relevant definitions in s 4 and cl 3 of Sch 4 to the GIPA Act. 14. In any case, of the applicant seeks to make a further application for the amending of the name of the respondent, it is open to him to make that application as part of these proceedings and that amendment can be dealt with as part of the final hearing. 15. It is not consistent with the guiding principles of "just quick and cheap" to grant the stay application. I refuse the application for a stay of the proceedings. It is open for the applicant to make an application for a stay as part of the appeal proceedings. 16. The current directions for the exchange of documents remain on foot and the final hearing remains listed for 5 April 2024.

Is a grant of leave to proceed against the Information Commissioner required from the Supreme Court?

On 25 March 2024, Principal Member Simon made the following further orders: Orders 1. The respondent is to provide to the applicant and the Tribunal, written submissions in relation to s 42 of the Government Information (Information Commissioner) Act 2009 (NSW) on or before 4pm on 28 March 2024. 2. The applicant is to provide to the respondent and the Tribunal, written submissions in relation to s 42 of the Government Information (Information Commissioner) Act 2009 (NSW) on or before 4pm on 2 April 2024. Notes: 1. Section 42 of the Government Information (Information Commissioner) Act 2009 (NSW) relevantly provides: 42 Immunity of Commissioner and others (1) Neither the Commissioner nor a member of staff of the Commissioner is liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. (2) Civil of criminal proceedings in respect of any act or omission referred to in subsection (1) cannot be brought against the Commissioner or a member of staff of the Commissioner without the leave of the Supreme Court. (3) The Supreme Court is not to grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith. 2. The parties' attention is also drawn to the decision of the Court of Appeal in The Ombudsman v Koopman & Anor [2003] NSWCA 277. 3. The parties need to address in their submissions: (i) Whether leave is required, from the Supreme Court, under s 42 of the Government Information (Information Commissioner) Act 2009 (NSW) in respect of these proceedings. (ii) If leave is required, the applicant will need to establish that leave has been obtained and provide supporting evidence that leave has been granted. 4. The issue of whether leave is required under s 42 for these proceedings to proceed will be dealt with at the outset of the final hearing on 5 April 2024.
On 2 April 2024, the respondent filed written submissions in relation to s 42 of the GIIC Act. The respondent argued that: 1. If the respondent is properly described, the issue of whether s 42 of the GIIC Act has any application to the applicant's application for administrative review in this Tribunal does not arise for consideration; and 2. In the alternative, the applicant does not require leave of the Supreme Court under s 42(2) of the GIIC Act to bring his application for administrative review.
The respondent argued that these administrative review proceeds are not "a civil proceeding" within the meaning of s 42(1) of the GIIC Act. However, if the Tribunal rejects that argument, it follows that the applicant requires leave of the Supreme Court and the current matter should be dismissed for want of jurisdiction under s 55(1)(b) of the NCAT Act.
On 5 April 2024, the applicant filed submissions in which he also argued that s 42 of the GIIC Act does not apply to these proceedings "because they are neither against the Information Commissioner nor a member of staff od (sic) the Information Commissioner". He also stated, relevantly: 5. The applicant considers the correct legal respondent in these proceedings is the "Office of Information Commissioner" and not the "Information Commissioner" because the latter is not a public office and therefore not an agency for the purposes of the GIPA Act. Respectfully, whether the Information Commissioner is or is not an agency for the purposes of the GIPA Act is now a matter to be argued before and determined by the Appeal Panel in case no. 2024/104869.

The hearing

The matter came before me for hearing on 5 April 2024. The applicant appeared in person and Mr Farrugia of the Crown Solicitor's Office appeared for the respondent.
When the matter commenced, I advised the parties that in accordance with the orders made by the Tribunal on 25 March 2024, I intended to deal with the following issues: 1. Whether the name of the respondent should be further amended as per submissions lodged by the applicant; 2. Whether a grant of leave to proceed against the respondent is required from the Supreme Court under s 42(2) of the GIIC Act; and 3. Administrative review of the decision made under the GIPA Act.

(1) Whether the name of the respondent should be further amended as per submissions lodged by the applicant

I noted that the Tribunal refused to stay of the proceedings and that Senior Member French made an interlocutory decision and amended the name of the respondent to "Information Commissioner", but that the applicant appealed against that decision and made submissions to the effect that the name of the respondent be further amended to "Office of the Information Commissioner".
I asked the parties to indicate why the hearing of the administrative review could not proceed before the determination of an application for leave to appeal?
The applicant replied, "Why are you asking that? … Why are you bringing it up now?"
The Tribunal stated that the issue of whether the name of the respondent should be further amended required resolution before the administrative review could proceed. However, the applicant then said: Well, I didn't think this would be an issue here… because it's before the Appeal Panel… This is not an Appeal Tribunal… I'll ask you. Well, you're asking out of the blue without explaining to me what's going on. So that's why I asked you that question. Why are you asking me that now?"
The following exchange then occurred: Tribunal: OK, Mr Jeray. I am trying to work out for the record what is in dispute here today. Now I've just given you an explanation of what I consider to be in dispute here today and I've asked the parties to comment on whether or not they agree with that statement. So would you like to say yes or no? Applicant: What's the question? Please don't look at me like that OK I'm not a fool Senior Member. Tribunal: Please don't huff and puff. Applicant: No, I didn't huff and puff. You're the one who turned your eyes up looking at me. If you do not have the attitude to be here, then you should excuse yourself or we should have another member who's more amicable to the situation. You know that I'm unrepresented. Please don't treat me like I'm vermin... otherwise, I'll make a complaint. Tribunal: Mr. Jeray, I am not treating you in any particular way. I have set out at some length what I regard... Applicant: Well, you just said it without explaining to me. That's why I asked the question. You need to explain things. I'm not agreeing to anything or saying anything unless I understand what's being asked of me, but you just shot something out of the blue which was in your head but unexplained to me. I can't read your mind. Tribunal: Are you disputing that the correct name for the respondent is as put by the respondent in its submissions, which is the "Information and Privacy Commission"? Applicant: No, I don't agree. Tribunal: Why? Applicant: Why don't you have… the issue is that the Tribunal changed it to "Information Commissioner", are you aware of that? Tribunal: I am aware of that, but that that dispute can be resolved without having to stay the proceedings, which would only increase both parties' costs and delay the determination of a matter that only has one live issue - and that is whether or not the application to the respondent under the Government Information Public Access Act is valid or invalid. That's the only issue here. Applicant: Well, why did you ask me if we are determining what the right name is today then if that's the only issue. Applicant Because I need to resolve that before we can move forward. Applicant: OK, if you had explained that then I would understand. But you didn't say. Tribunal: Why do you say that the correct name is the "Office of the Information Commissioner" rather than the "Information and Privacy Commission"? Applicant: That's what it says in the Act as the agency is the Office of the Information Commissioner and not the Information Commissioner. Tribunal: What section of the Act says that Mr Jeray, can you direct me to that please? Applicant: I had not known about this.
I noted that Principal Member Simon's orders dated 25 March 2024 put the parties on notice that this issue would be deal with at the commencement of the hearing and I asked Mr Farrugia, as an officer of the Court, to comment on the proper name of the respondent.
Mr Farrugia made oral submissions and referred to the respondent's submissions filed 2 April 2024, which set out the following matters: 5. The respondent notes that it has consistently taken the position, from the outset of these proceedings, that it is most appropriately described as the Information and Privacy Commission. 6. The respondent has only ever suggested that it would be appropriate to describe the respondent as the Information Commissioner if the Information Commissioner was named in her capacity of the principal officer of the Information and Privacy Commission (see the respondent's correspondence to the Tribunal of 6 February 2024). In doing so, it was noted that any decision of an agency in respect of an access application must be made with the authority of its principal officer: GIPA Act s 9. 7. It is, in the respondent's view, apparent from the face of the applicant's access application of 20 June 2023 (a copy is annexed to these submissions and marked "A") that the "agency" to which that access application was made was the Information and Privacy Commission. It is equally apparent from the face of the notice of decision of 27 July 2023 (a copy is annexed to these submissions and marked "B") that the "agency" which made the "reviewable decision" that is presently subject to administrative review by the Tribunal is the Information and Privacy Commission. 8. The Information and Privacy Commission is not a legal person but rather an emanation of the Crown in right of the State of New South Wales. Put differently, the Information and Privacy Commission does not (unlike the Information Commissioner and her staff, who are natural persons) have any legal personality separate to that of the Crown. The Crown does not enjoy the immunity afforded to the Information Commissioner and her staff by s 42 of the GIIC Act. 9. The respondent submits that, if the respondent is properly described, the issue of whether s 42 of the GIIC Act precludes the bringing of the applicant's application for administrative view does not arise for consideration…
The Tribunal asked the applicant why he asserts that the respondent is correctly named as "Office of Information Commissioner". The following exchange then occurred: Applicant: Well, first of all, I'd like it noted for the record that I that I was not aware that this was going to be an issue here today and that I was not fully prepared for it, otherwise I would have brought some other information. I'd like that noted please. Tribunal: All the parties can file written submissions if the need arises, but I'm just asking because you... Applicant: Well, I would like it noted please. Tribunal: It's noted on the record and we are sound recorded, so it's noted on the record. Applicant: Well, it would be good if it was noted in the decision too, please. Tribunal: Well, I haven't made the decision yet. When I when I come to make the decision... Applicant: Well when the decision is made, I'll request that you put it in the in the decision and... Tribunal: Mr Jeray I will make a decision in due course, but in the meantime... Applicant: I'm not asking you to make a decision. I'm asking you to include what I've just asked you, that I was not prepared, that I was not aware that you were going to raise that as an issue in the proceedings today. I'm asking you again to please note it. Applicant: And I have said it will be noted. Tribunal: Well, you just said noted in the transcript, not in in the in the reasons. Tribunal: It will be noted in my reasons when I come to write the decision in due course. Applicant: OK, good. That's all I need needed you to say, but you didn't say that. Tribunal: Why do you say that the Office of the information Commissioner is the correct name of the respondent? Applicant: Well, just before I get to that, I just want to say something to you about what Mr Farrugia was referring to my GIPA application. Now just because they have the GIPA application: (1) doesn't mean it's correct; (2) this issue only came about after the Tribunal changed the name that I had on the GIPA application to the "Information and Privacy Commission". Tribunal: Well, it was actually changed to Information Commissioner... Applicant: Well, no, I'm getting to that. I'm explaining to you why it became that that those that order to change it from what I had on my GIPA application... That that was in my absence and upon that change I started investigating the correct name the party. Tribunal: Is that the decision of Senior Member French that you are referring to? Applicant: Do you have the date there? That might help me please. Farrugia: Senior Member I think what the applicant is referring to is the orders of the 6th of November. It may assist so you know I've prepared a short summary of the various procedural developments that have happened in this matter. Applicant: Yeah, 6th November. Farrugia: Everything that's referred to in this... Tribunal: So these were orders made at a case conference? Farrugia: That's quite right. And as the applicant has suggested, he did not attend. Tribunal: OK, so Senior Member McAteer changed the name to "Information and Privacy Commission NSW". Farrugia: And that took place at the case conference after I basically made submissions quite similar to those that I've just made to you. Tribunal: OK, and then on 12th of February, Senior Member of French amended that to "Information Commissioner", because he formed a different view. Applicant: Well, that's what they had asked for, the respondent had asked for. I requested that it be changed to the "Office of Information Commissioner", hence the appeal after that decision. Farrugia: Would it assist if I hand up this document and provide a copy to Mr Jeray as well? Applicant: Well, I've got the decision of the Senior Member here. It doesn't seem to record that there was a request made by the respondent to change the name to the "Information Commissioner". Applicant: I think it might have been in their submissions. Farrugia: I can assist. Tribunal: If you wouldn't mind, I would greatly assist short circuiting this. Farrugia: Yes, Senior Member, so the orders that the applicant is referring to were made at the first case conference on the 6th of November and Senior Member McAteer amended the description of the respondent to the "Information and Privacy Commission". In December, Mr Jeray filed a notice of appeal in respect of that order, as well as orders made at the second case conference on the 20th of November in that appeal (matter 2023/ 44425) and he sought an order that the name of the respondent be changed to the "Office of Information Commissioner". There are then various exchanges between the parties and, ultimately in early February, I wrote to the Registrar on behalf of the respondent, indicating that the respondent would consent to order 1 of 6 November 2023 being set aside to alleviate the need for that appeal and the related stay applications that have been filed to continue. It was our position that any issue as to the name of the respondent, could and should be resolved in these ongoing proceedings in the Division... In response to an application for a stay filed by Mr Jeray in these proceedings on the 15th of December 2023, the Tribunal indicated that it would deal with both issues at the listing. So, on 12th of February, there was a hearing of the stay application and the issue of the proper naming of the respondent was also dealt with. I think it in the result, Senior Member French essentially determined the issue as opposed to simply setting aside the matter under Regulation 9. He determined that it was appropriate for him to make an interlocutory decision. That order as well as the stay decision, is now the subject of a further appeal (matter 2024/104869). There's been two applications for stay of these proceedings, pending the determination of matter 2024/104869. The first was in these proceedings, filed on 19th of March, which was determined by Principal Member Simon on the 25th of March. And then a further application for a stay was filed by Mr Jeray in the appeal proceedings on the 28th of March, and that was determined by Principal Member Rosser on Wednesday afternoon. Tribunal: What happened with the appeal stay? Farrugia: That application for a stay was refused and Principal Member Rosser gave oral reasons at that time. Basically, having regard to the Guiding principle in s 36 of the NCAT Act and having regard to the interests of justice, she considered that it was appropriate that the application for a stay be refused and that the hearing scheduled for today should proceed. Tribunal: Well, that clarifies it a bit. Applicant: I suggest Senior Member that when you have the time, just go through the record and see what happened for yourself. Satisfy yourself through the records of the Tribunal. Tribunal: That is my normal process. I see no reason to deviate from that in this matter. Applicant: No, I'm not asking you to do that. I'm just saying suggesting to you do it when you have the time... So are you still asking me that question now? Tribunal: Why you think that that the name of the respondent needs to be "Office of the Information Commissioner"?. Applicant: Yes… When you submit the GIPA application it goes to an agency… Then if you look through the various sections of the GIPA Act, it talks about the agency making the decision. You know the issue here is whether the Information Commissioner is seen as an agency and I don't agree with that. I consider that the agency is the Office of Information Commissioner. Tribunal: Well isn't the actual agency that's created under statute the Information and Privacy Commission? Applicant: No. That's a separate agency that was set up for the employment of staff to serve the to serve the Information Commissioner in undertaking his or her duties. It is a public service agency and I believe it was set up is set up under the Government Sector Employment Act, and if you look at that Act and go through the schedules at the bottom, you'll see that the head of the agency is the Information Commissioner. However, the Information Commissioner is separate from the information and Privacy Commission, because the Information Commissioner cannot employ staff. Tribunal: Right, you say it is because staff are employed by the Office of the Information Commissioner. Applicant: Yeah, they are. No, they're not. They are not employed by the Office of the Information Commissioner. There's no such thing as the Office of… What are you saying? The Office of the Information and Privacy Commission? Tribunal: Well, you've just put to me that the correct name of the agency is the Office of the Information Commissioner, correct? Applicant: No, no. The Office of Information Commissioner is separate from the information and Privacy Commission. Tribunal: Yes, and I am saying that my view is that the correct name for the respondent is "Information and Privacy Commission", and you have just put to me that it's the "Office of Information Commissioner", because that's who employs staff. Applicant: No, no, they don't employ the staff. They're, he's not allowed to do that. The Information Commissioner works in the Office of the Information Commissioner, but the office of the Information Commissioner, cannot and does not employ staff. You understand the Information and Privacy Commission serves the Office of the Information Commissioner. The office of the Information Commissioner cannot employ staff in his office or her office, which is the Office of Information Commissioner, therefore, no staff work in the Office of Information Commissioner, except the Ombudsman. Tribunal: What? What? Applicant: Sorry, the Information Commissioner only. And likewise with the Privacy Commissioner. Tribunal: So why is the Office of Information Commissioner the correct name for the respondent? Applicant: Well it's referred to in the in the GIPA Act. Now, the issue is whether my GIPA application is invalid under s 43 and s 43 refers to sch of the GIPA Act… Tribunal: And Sch 2 refers to excluded information, correct? Applicant: In relation to particular agencies and if you look down the list, the 8th one on the list is the Office of Information, Commissioner. It doesn't say Information Commissioner. Do you see that Senior Member? Tribunal: We say we seem to be talking at cross purposes, Mr Jeray. I've expressed a view… Applicant: Well, you asked me where... Tribunal: that the correct name for the respondent is not the Information Commissioner and it should be the Information and Privacy Commission, and you are telling me that this is incorrect. Applicant: It should be the Office of the Information Commissioner. Look at Sch 2 cl 2 of the GIPA Act. Farrugia: So I referred earlier to the definition of the term "agency". That term is defined in s 4(a) as a public service agency. Now it's also the case that para (d) of that definition is a public office, but I'll focus on the Information and Privacy Commission first, as that's what we say is the correct name of the respondent. Tribunal: It refers to a public office holder… Farrugia: So in respect of the Information and Privacy Commission, the term "Public Service agency" is defined in cl 1 of sch 4 of the GIPA Act, as a public service agency under the s 3 of the Government Sector Employment Act 2013. Section 3 of the Government Sector Employment Act defines "public service agency" as, among other things, a separate public service agency. It also defines the term "separate public service agency" as a public service agency listed in part 3 of sch 1. Part 3 of sch 1 then lists the information and Privacy Commission as an agency and the Information Commissioner as the head of that agency. On that basis, we would say that the Information and Privacy Commission is an agency as that term is defined under s 4 of the GIPA Act and having regard to the fact that the access application that was made on the 20th of June last year to that agency, and that agency made the reviewable decision that is currently before the Tribunal. Applicant: I disagree with that. Tribunal: Well just let me get the legislation up here… Applicant:…because it's a separate, completely separate agency, they only provide services to the Information Commissioner, to the Office of Information Commissioner? My GIPA application was directed to the Office of Information Commissioner. Tribunal: And the decision was made by the Information and Privacy Commission. Applicant: Well, no, not correct. Well, no, no, it's not because it's document well, that doesn't mean they did. They made the decision on behalf of the Information Commissioner. Tribunal: What? Applicant: The Office of Information Commissioner. The Information and Privacy Commission was set up so for staff because the Ombudsman can't employ staff in the in the Office of Information Commissioner. Tribunal: We're not talking about Ombudsman staff anyway. Applicant: I mean, the Information Commissioner cannot employ staff in the Office of Information Commissioner, that's why the Information and Privacy Commission was set up because it was also set up to serve the Privacy Commissioner who holds office in in the Office of Privacy Commissioner. You follow what I'm saying? Tribunal: I follow what you are saying, but I don't agree. Applicant: Well, I disagree with what they're saying because what they're saying is the Office of Information Commissioner was set up independently. Tribunal: Where does it say that they can't employ people as the head of agency is the Information Commissioner. The separate agency is the Information and Privacy Commission and the chief executive of that agency is the Information and Privacy Commissioner. The GIPA request was made on a form issued by the Information and Privacy Commission. It was lodged with the Right to Information Officer of the Information and Privacy Commission, and the decision was made by an officer of the Information and Privacy Commission. I really don't see how this addresses the real issue, which is whether the GIPA request is valid or invalid. Applicant: It has to be made to the correct party. Tribunal: Are you saying you didn't make it to the correct party? Applicant: Well, I didn't realize that's what I said. I didn't realise when I made that application and it was only after they changed it to the Information and Privacy Commission that I started to investigate and I realised that that is actually incorrect. Tribunal: So are you wanting to set aside your GIPA request? No?. OK, so the only way it can proceed is if we can determine who the correct respondent is and based on sch 1 of the GSEA Act, it is the Information and Privacy Commission. Applicant: The Information and Privacy Commission has nothing has nothing to do with what I'm requesting. The information is held in the Office of Information Commissioner. That that is the agency and that is and that says it in black and white and schedule 2… Tribunal: The schedule refers to functions of the agency, not the agency itself. The agency is set up under GSEA Act. Applicant: No, it's not. That's for employment of staff. The staff cannot work for the Information Commissioner. It says that they're in black and white. The Office of Information Commissioner. How can you bring in GSEA into this? Completely irrelevant. Tribunal: Mr Jeray… Applicant: Well, you only want to see what you choose to see so you go ahead and make the decision. I will appeal it. Tribunal: Mr Jeray… Applicant: I don't want to waste my time anymore because you've got preconceptions and you cannot be separated from what reality says. Tribunal: Would you please let me finish this sentence and then you can respond. … Applicant: Well, you said that this, this can't be right, but you just made that up. It doesn't say anything there about GSEA. Where does it say GSEA in cl 2 of Sch 2. Can you please explain That to me? Tribunal: Yes, I'm looking at it. Applicant: Well, where does it say that Government Sector Employment Act in that in that clause? Tribunal: The agency is established under the GSEA. Applicant: And where does it say Information and Privacy Commission in that clause? Can you see anywhere there? Tribunal: In the GIPA Act. Applicant: No. Yeah, in this course too. Can you tell me where it says it's the Information and Privacy Commission. No, I would like you to explain it… Tribunal: No, it is referring to functions and not the name of the agency. Applicant: Functions of the agency, that is the agency is the Office of Information Commissioner. Tribunal: No, it's not with all due respect and that is because the agency itself is established under the GSEA Act. Applicant: No, it's not. You are incorrect. The Office of Information Commissioner is set up under the GSEA Act. Tribunal: Well, Mr. Jeray, can I ask you this? If you lodge a GIPA request with the wrong party, how is the matter going to proceed? Applicant: Well I have information from the Information and Privacy Commission, which I don't have with me, that says that the Information and Privacy Commissioner carries out work on behalf of the Office of the Information Commissioner. I have that in black and white. Tribunal: Where did that document come from? Applicant: It is correspondence that I have with the Information and Privacy Commission. I have to get a copy of it. Tribunal: Well, it seems to me that unless we can come to some sort of resolution of the name of the respondent, this matter is going nowhere. Applicant: Well, that's why I asked for a stay. Tribunal: The application for a stay has been refused on 2 occasions. Applicant: Well, that's because they have made a mistake, respectfully. So if we can't go ahead, then the only thing we can do is wait until the Appeal Panel deals with that issue and it comes back here. Tribunal: And all that does is add to costs, which can be better spent elsewhere. Applicant: That that is that is not my fault. The Tribunal has made the wrong name. Senior Member French made the wrong name. Tribunal: And I and I can deal with that if there is some sort of resolution because the application for a stay has been refused twice and the hearing has been confirmed and two Principal Members ordered that the matter proceed. Applicant: The Tribunal has made errors. Respectfully, if people had listened to me we wouldn't be in this situation. Tribunal: Mr Jeray do you wish your application for review to proceed? You have applied for an administrative review of a decision which says that what you're seeking is excluded information, and that the application under the GIPA Act is invalid. Are you seeking to have that determined? Applicant: Are you saying we're going ahead with it? Well, I can't answer that question until you make the decision as to who is the respondent. Tribunal: In my view it's as set out in the GSEA Act and it is correctly named as the Information and Privacy Commission. Applicant: Well, like I said to you, why don't you look at the GIPA Act and satisfy yourself… Tribunal: The GSEA doesn't refer to the Office of Information Commissioner. Applicant: You know it doesn't apply to the Commission. Have a look… My GIPA application is not with the Information and Privacy Commission. Tribunal: Your GIPA application is on an Information and Privacy Commission form. Applicant: Well, that was because that form is incorrect. Well, OK, I like I explained to you. I wasn't aware of this issue until that my name changes occurred without me being there when it was changed to information and Privacy Commission. The Information and Privacy Commission exists purely to assist, to help the Information Commissioner to administer. That's it. They don't work in the Office of Information Commissioner. Now, this is what this legislation here is talking about and it says there that. The Constitution prevents that as well… It's related to the Information Commissioner's functions under the GIPA Act. I'm asking the reasons why the Information Commissioner chose to appear in some cases... Tribunal: I did not say that the Information Commissioner was the office or the agency. My view is that the agency is established under the GSEA as the Information and Privacy Commission. Applicant: Yes, I agree that the Information and Privacy Commission is set up under the GSEA Act, but it doesn't hold the records that the Information Commissioner holds. Those records are held in the Office of Information Commissioner and the staff that work for the IPC. They help the Information Commissioner carry out his or her duties. They're public servants. That's it. There is a definite line and the fact is, it says there that by the Constitution again. Tribunal: But the staff don't hold the records though, do they? It's the agency that holds the records. Applicant: You have some misunderstanding that the that the Office of Information, Commissioner and the Information and Privacy Commission are 2 separate agencies. Tribunal: No, we're talking about…. Applicant: They're 2 separate agencies. Tribunal: Now you're talking about the Office of Information Commissioner and the GSEA refers to the Information and Privacy Commission and you say they're 2 separate agencies? Applicant: Yes… Tribunal: You're suggesting that this all turns on who employs the staff? I don't understand why employment of staff determines the correct name of the agency that holds the information. Applicant: The Information Commissioner is in charge of the IPC, yes. But the IPC us not part of the Office of Information Commissioner. The Information Commissioner has dual roles - they are in charge of the IPC, but it also has its role in the in its Office of Information Commissioner. The IPC was just set solely for the employment of staff to serve the Information Commissioner… So what I'm saying, in fact, is if someone makes a GIPA application, they can actually make one to the IPC or they could make one to the Office of Information Commissioner. But the one that goes to the IPC is incorrect assuming that it's also for the Office of Information Commissioner… The GIPA application should actually specify to which agency it should go to. Tribunal: And which one do you say you meant to direct it to? Applicant: Well, my GIPA application was to the Office of Information Commissioner. Tribunal: And the decision was made by the information and Privacy Commission. Applicant: Well, they say that. It would have been done by delegated authority, but on behalf of the Information Commissioner, not in its own right. Tribunal: Mr Farrugia which body does the respondent say holds the records? Farrugia: The agency, as that term is defined under the GSEA Act. Tribunal: If the reviewable decision has been made by a decision maker in the Information and Privacy Commission, how can the matter proceed to external review if the applicant says that that application was made to the wrong body in the first place. That's what I don't understand. Farrugia: Member, if Mr Jeray wishes to withdraw his application for administrative review here and now, I have no objection… Tribunal: I can only review the decision that's before me. Applicant: Yes. Applicant: And that has been made in the name of the Information and Privacy Commission, whether that's correct or not under the GSEA, I know because I'm not determining an application under the GSEA. The question I've just raised is that the decision that's under review in this Tribunal is the decision attached to your application. And that was made on the 27th of July 2023 by Ian Naylor. Director Business Improvement of the Information and Privacy Commission. Now if you are seeking a review of a decision made by some other agency, this application can't proceed. Applicant: I have this message I'm trying to find OK. Trying to clarify it now, I don't think I've got it here with me. Tribunal: We'll please try to find it. At the end of the day, I hear what you say, Mr Jeray, but I don't think anything turns on it because the decision that you're seeking a review of by this Tribunal is the decision dated 27th of July 2023, that your GIPA application was invalid because the information sought is excluded information. Now, if you're now saying that you made an application to the wrong agency, or that the wrong agency has made the decision, how can this proceed through administrative review? Applicant: Well. They're the ones who changed the actual person that well, I have to find this message. If I find this message, then it should really be changed to the Office of Information, Commissioner… I don't think I've got it here. Tribunal: I think it should be the. Information and Privacy Commission because that is the agency that made the decision that you're seeking a review of. Applicant: Well, actually, no… Tribunal: And if that's not the case, then I don't think your application can proceed to determination by any Member of this Tribunal. Applicant: Yeah. I don't agree with that. But I don't have it with me here today. Tribunal: Well, the application was made… Applicant: I suggest that we move on with the with s 43 and then come back another day. Tribunal: No, I have to know who the application is proceeding against. Applicant: Could we could argue section 43? Tribunal: The application that you made on the 20th of June 2023, which you signed on the final page, after the privacy statement made by the Right to Information Officer of the Information and Privacy Commission, is on an Information and Privacy Commission NSW form… You got an acknowledgement dated the 26th of June 2023 as a letter - Invalid Government Access Application issued by the Information and Privacy Commission and the actual decision that's here, which is the internal review decision, is dated the 27th July 2023, and it's made by the same agency. So I think on the face of the documents, the correct name for this application should be the Information and Privacy Commission. Applicant: No, I don't agree. Well, you're changing it back to what they had before. I respectfully disagree with you on that… Tribunal: Please Mr Jeray just let me finish what I am saying before you jump in. I understand that you are very heavily invested in this. If we can't agree on who the agency is or if you maintain that your GIPA application was made to the wrong agency and that the agency that made the decision was not the agency that should have made the decision, then it can't be reviewed by this Tribunal. Applicant: A decision was made. Tribunal: Yes, by the Information and Privacy Commission. Applicant: Not necessarily. Where does it say that they made it? Tribunal: On the face of the document. Applicant: Are you sure they're not making a decision on behalf of the Office of Information Commissioner? Tribunal: It says "Information and Privacy Commission". Applicant: I'll find this e-mail this e-mail… Tribunal: You're wanting me to review a decision that has been made by one agency and you say it's not the right agency so how can I review it? Applicant: You've got to remember, the staff can't make decisions they have delegated authority, correct? Tribunal: I understand delegated authority. Applicant: And who makes the decision? Who delegates the authority? The Information Commissioner? Yeah. Tribunal: Who you say is the wrong person. Applicant: No, I'm saying I'm saying the Office of Information Commissioner… Tribunal: Mr. Jeray, we're going around and around and around. Applicant: Well, you let me find this evidence and then I'll put it on and show you. Tribunal: The matter is listed for hearing today. Applicant: Well, you didn't tell me that this was going to be an issue today. I thought we were going to deal with s 43. Tribunal: You knew, having raised the issue of the name of the respondent, it was going to be an issue. Applicant: Well, no, no, I no, I didn't. Tribunal: It was the correspondence from the Tribunal that it would be raised at the outset of the hearing. Applicant: You were talking about the appeal. Tribunal: No, I was talking about the application for the stay and the appeal and everything else. Principal Member Simon told you that it would be raised with me at the hearing and then you lodged an appeal and Principal Member Rosser made a decision on that. So we can either proceed with s 43 in relation to a decision that was made on the 27th of July 2023 by the information and Privacy Commission or you can consider whether or not you wish to withdraw your GIPA application and make it to the agency to whom you say you should have made it. Applicant: My application was made to the correct agency. It was handled by the IPC on behalf of the Office of Information Commissioner. Tribunal: Does it really matter for the purposes of arguing the s 43 issues which are the real issues in this matter. Applicant: The correct agency is the Office of Information Commissioner. Tribunal: The Crown Solicitor is telling me otherwise. Applicant: The IPC are only the workers and they don't hold the information. My GIPA application was to the Office of Information Commissioner. You can't understand, so I don't think you do with all due respect.. You keep coming to incorrect conclusions. Tribunal: Right before me is all the paperwork, which says Information and Privacy Commission. The IPC's website refers to itself as the Information and Privacy Commission. The GSEA refers to it as the Information and Privacy Commission. Applicant: I suggest this course. You make you make a decision, and then I either agree or object. You note the objection and then we move on to s 43. Tribunal: Alright, well in my view the correct name for the respondent is the Information and Privacy Commission. Applicant: Just see if I can find this thing, but I think I should be given a chance to put it on. Tribunal: Well, I'm going to be reserving my decision so we can do written submissions if needed. The ruling I make is that the correct name for the respondent is the Information and Privacy Commission. Now, can we proceed with s 43? Applicant: Please note that I object to that. Tribunal: I've noted your objection. Applicant: OK. Thank you. Senior member. Tribunal: You might actually want to file your evidence and submissions before, since I've already said I'm not making a decision today, you might actually want to keep your powder dry on that, but it's up to you. Applicant: But you just said you made a decision. Tribunal: I have made a ruling. I haven't made a final decision on the matter. I have expressed my view as to the correct name of the respondent. Applicant: So is that the final view on that on that decision? Tribunal: Subject to receipt of anything else, you file within 7 days. Applicant: Alright, well, you didn't specify on that, that's all.
The Tribunal ordered the applicant to file and serve a copy of the email document that he referred to in his oral submissions by 12 April 2024. It granted the respondent leave to file and serve any short submissions in response to that document, if the need arises, by 19 April 2024.
On 12 April 2024, the applicant filed an affidavit to which he annexed an email chain between himself and a Right to Information Officer of the Information and Privacy Commission NSW, as follows: 1. On 22 November 2023, the applicant sent an email to "IPC-GIPA in which he stated, relevantly : "Dear Sir/Madam, My GIPA application dated and sent by email on 20 June 2023 and my corresponding request for an internal review sent by email on 18 July 2023 should have ben directed to the Office of Information Commissioner. Did the Office of Information Commissioner deal with my GIPA application dated 20 June 2023 and my corresponding request of 18 July 2023 for an internal review? … 1. On 7 December 2023, Yasmine Salameh, Right to Information Officer, Information and Privacy Commission NSW, responded to the email as follows: Dear Mr Jeray, Thank you for your email. I can confirm that as per statutory powers under the GIPA Act, staff representing the Office of the Information Commissioner dealt with your access application and request for an internal review. …
On 13 April 2023, the applicant sent an email to the Tribunal, in which he complained that the Tribunal had unfairly not given him an opportunity to respond to the respondent's short submissions.
However, on 16 April 2024, Mr Farrugia sent an email to the Tribunal, stating that the respondent did not intend to file any further submissions in response to the applicant's affidavit dated 12 April 2024.
I note that the Ms Salameh's email dated 7 December 2023 indicates that staff representing the Office of the Information Commissioner dealt with the GIPA request and request for an internal review. However, the respondent's submissions are to the effect that the respondent is correctly named as the "Information and Privacy Commission".
These submissions are inconsistent with the submissions filed prior to the hearing before Senior Member French, in which the respondent stated that the description contended for by the applicant "was also acceptable". Mr Farrugia did not provide any explanation for the change in the respondent's position.
With a view to giving effect to the Tribunal's guiding principles of "just, quick and cheap", I am prepared to accept that the respondent in these proceedings should be described as "Office of the Information Commissioner" and that it is appropriate to make an order to that effect.

(2) Whether a grant of leave to proceed against the respondent is required from the Supreme Court under s 42(2) of the GIIC Act?

Both parties argued that s 42 of the GIIC Act does not apply to the current administrative review proceedings.
In my view, s 42 of the GIIC Act does not apply to these administrative review proceedings, as the Tribunal is effectively standing in the shoes of the respondent and making what it considers to be the correct and preferable decision on the evidence before it.
In these proceedings, the Tribunal is not determining a civil claim against the respondent, such as a claim for damages under the Privacy legislation, in which event I consider that leave of the Supreme Court would be required under s 42(2).

(3) Administrative review of the respondent's decision dated 27 July 2023

Applicable law

Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) 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 that the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) the 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.
Section 3 of the GIPA Act provides, relevantly: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: … (b) by giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
This object is amplified with a statutory command, contained in s 3(2), which provides: (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 possible cost, access to government information
The object of the GIPA Act is operationalised by various 'machinery' provisions of that Act.
Part 2 of the GIPA Act contains general principles relating to open government information.
Division 1 of that Pt 2 of the GIPA Act concerns ways of accessing government information. This includes, in s 5, a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. It also confers, in s 9(1), a legally enforceable right on a person who makes an access application to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. Section 11 provides that the GIPA Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information other than a provision of a law listed in Schedule 1 as an overriding secrecy law.
Division 2 of Pt 2 of the GIPA Act concerns public interest considerations related to access to government information. This includes, in s 12(1), a prescription that there is a general public interest in favour of the disclosure of government information.
Section 13 contains a "public interest test" which is to be applied in determining whether access is to be provided to government information. It provides that there is an overriding public interest against disclosure of government information 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.
The public interest considerations against disclosure of government information are found in s 14 of the GIPA Act. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. In this respect Sch 1 provides: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. …
Part 4 of the GIPA Act deals with access applications. Division 1 of Pt 4 is concerned with making an access application. In this respect s 43 provides: 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. [Note: Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency]. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.
With respect to s 43, Sch 2 of the GIPA Act provides, relevantly: Schedule 2 Excluded information of particular agencies [Note: Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to the disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.] … 2 Complaints handing and investigative Information … The office of Information Commissioner - review, complaint handling, investigative and reporting functions.
The terms "excluded information" and "function" are defined in cl 1 of Sch 4 to the GIPA Act as follows: excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency… function includes a power, authority or duty…
Division 3 of Pt 4 prescribes the process for dealing with access applications. Section 51 requires an agency to make an initial decision as to the validity of an application. It provides, relevantly: 51 Initial decision as to validity of application (1) When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either: (a) acknowledging receipt of the application as a valid access application, or (b) notifying the applicant that the application is not a valid access application. [Note: An application is not a valid access application if it is an application for excluded information of the agency ...] (2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received. [Note: The decision as to the validity of an application is reviewable under Part 5.] … (5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.
Section 55 also requires the agency to take into consideration personal factors of the application as set out in that section.
Division 4 of Pt 4 sets out the process for deciding access applications. Section 58 prescribes how applications are to be decided. It provides, relevantly: 58. How access applications are decided (1) An agency decides an access application for government information by: … (e) deciding to refuse to deal with the application (see section 60), or …
Section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act, which includes a decision that an application is not a valid access application (s 80(a)).
Division 3 of the GIPA Act governs the Information Commissioner's rights to review, or to refuse to review, a decision made by an agency under the GIPA Act.
Section 100 of the GIPA Act provides that a person who is aggrieved by a decision that is a reviewable decision under the GIPA Act may apply to the Tribunal for an administrative review of that decision under s 55 of the ADR Act.
Section 104 of the GIPA Act provides: 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. (2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14). (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.
Section 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies on the agency.
In this matter, the relevant question is whether the Information Commissioner's decision as to whether or not she will appear in any NCAT proceedings "relates to review, complaint handling, investigative and reporting functions" of the respondent. If the answer to that question is "yes", then the GIPA request is invalid as it seeks access to "excluded information".
The respondent has made extensive submissions regarding the meaning of the phrase "relates to" in cl 1 of Sch 4 of the GIPA Act and argues that the Information Commissioner's decision as to whether or not she will appear in any NCAT proceedings relates to her review function (conferred under Div 3 of Pt 5 of the GIPA Act) as such a decision is in respect of her review function.
The applicant argues that such a decision is not a review function of the Information Commissioner, because the review under Div 4 of Pt 5 is being conducted by the Tribunal and not the respondent.
However, with respect to the applicant, who is not legally represented, he did not address the meaning of "relates to" in cl 1 of Sch 4 of the GIPA Act. That is the test that this Tribunal must apply in determining this issue.
In Travelex Ltd v Commissioner of Taxation (2010) 241 LR 510, French CJ and Hayne J said (at [25]) that "it may be readily accepted that 'in relation to' is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ".
Whilst the Tribunal is not bound by the doctrine of precedent, the meaning of "relates to" (for the purposes of what is "excluded information" under cl 2 of Sch 2 of the GIPA Act) has been considered on many occasions.
In Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 81, Senior Member Dixon stated: 41. t is well established and accepted by the Tribunal that the term "relates to" as it is used in the definition of "excluded information" in the GIPA Act has a broad meaning. In Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 at [77] the Appeal Panel, having reviewed a number of authorities, concluded: We consider the term "relates to" as it is used in the definition of "excluded information" in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament's intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to "open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure" (GIPA Act, s 3(1)(c)). The use of the term "relates to" indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG's complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2). (See, too, as an example, Coppock v Willoughby City Council [2021] NSWCATAD 166 at [77] - [78].) 42. By "broad connection" as described in Beregi above it is to be accepted that it is not necessary that the relationship be direct or substantial, but that an indirect and less substantial connection will suffice. That view is reinforced in the current context by the submissions of the Respondent set out at paragraph 26 above by reason of the nature of the agency and its functions concerned with criminal activity, in some cases of a very serious kind. The principal functions of the Commission as set out in s 10 of the Commission Act further reinforce this conclusion.
I accept the respondent's argument that the functions of the agency that are identified in Sch 2 of the GIPA Act are functions that Parliament intended to exclude entirely from possible application of the GIPA Act. In that context, the phrase "relates to" preserves the operational freedom of the agency to undertake the designated functions with the knowledge that the GIPA Act is not engaged.
It follows that the information sought in the GIPA request need not be central to the functions specified in Sch 2 to be "excluded information". In this matter, it is sufficient that the information sought in the GIPA request "relates to" the review functions of the Information Commissioner.
As to the meaning of "review functions" in cl 1 of Sch 4 of the GIPA Act, in Beregi the Appeal Panel stated, relevantly: 48. There are 21 agencies identified in cl 2 of Sch 2 under the heading "Complaints handling and investigative information". The functions in respect of which information is excluded information are different for each of those agencies, and in addition to the terms "complaint handling" and "investigative", some include functions such as "reporting, "review", "inspection", "operational auditing", and "complaints resolution". As noted by the Appeal Panel in DNM v NSW Ombudsman [2019] NSWCATAP 77 at [47], those terms are generic descriptions of various agency functions, described in general terms. The Tribunal and its predecessor, the Administrative Decisions Tribunal, have, as identified in the decision at [23] in the context of other agencies and functions, adopted a broad reading of the terms used in cl 2. The ordinary meaning of the words "complaint handling and investigative functions" is apt to apply to a broad range of activities of an agency.
In DNM v NSW Ombudsman [2019] NSWCATAP 77, the Appeal Panel held, relevantly: 46. The way "excluded information" is defined for agencies other than the Ombudsman is also part of the context in which the relevant provisions must be considered. Under Schedule 2 of the GIPA Act, various kinds of information is defined as "excluded information." That information is listed under the headings: judicial and prosecutorial information, complaints handling and investigative information, competitive and market sensitive information and other information. In the category of complaints handling and investigative information, various functions of twenty agencies are listed. The functions of each agency are described using terms such as "complaint handling", "investigative," "reporting," "audit", "operational auditing", "review", "inspection", "complaints resolution", "dispute resolution", "corruption prevention" and "inquiry". 47. These terms are generic descriptions of various agency functions. Rather than list each statutory function separately, the legislature has described them in general terms…
In the absence of any higher authority that contradicts the views expressed by the Appeal Panel in Beregi and DNM, I am satisfied that it is appropriate to apply these decisions to the current matter. On that basis, I am satisfied that the term "review function" has a broad meaning that encompasses all functions that relate to, in the sense of being connected to, a review. This includes a review undertaken by this Tribunal.
In the scheme established by Pt 5 of the GIPA Act, the Information Commissioner has two related but separate classes of functions, namely: 1. External review of a reviewable decision under powers conferred by Div 3 of Pt 5 of the GIPA Act; and 2. A right of appearance in external review proceedings conducted by this Tribunal under powers conferred by s 104(1) of the GIPA Act.
Based on the express terms of s 104(1), and for the reasons set out above, I am satisfied that the provision confers a function on the Information Commissioner that is in relation to her review function.

Conclusion

For these reasons, I am satisfied that the GIPA request is invalid as it seeks access to excluded information of the respondent and that the correct and preferable decision is to affirm the decision under review.

Orders

I make the following orders: 1. The name of the respondent is amended to "Office of the Information Commissioner". 2. The decision under review 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: 07 May 2024

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