Manning v Bathurst Regional Council

1. On 28 September the applicant emailed Mr Dwyer as follows: ""I am requesting that you waive the processing charges due to the fact I am on a pension and also that Council's negligence and actions in this matter have cost me dearly and continue to cost me money. If the processing charges are not waived, I will be appealing to NCAT for a decision from them."
2. Mr Dwyer replied by email on 5 October 2017 as follows: "I refer to your email below requesting Council to waive the processing charges in relation to your GIPA application relating to the purchase of the property next door to yours. Council is unable to accede to your request as during the past two years Council has provided vast amounts of information, access to council files and spent significant hours of staff time in responding to requests for information from you and the only charges that have applied, if any, have been the initial $30 GIPA application fee. Council requests payment of the deposit before it continues to process your application."

The legislation

1. The objects of the GIPA Act are set out in s 3: "(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information."
2. Section 6 of the GIPA Act provides: "6 Mandatory proactive release of certain government information (1) An agency must make the government information that is its open access information publicly available unless there is an overriding public interest against disclosure of the information. Note. Part 3 lists the information that is open access information. (2) Open access information is to be made publicly available free of charge on a website maintained by the agency (unless to do so would impose unreasonable additional costs on the agency) and can be made publicly available in any other way that the agency considers appropriate. (3) At least one of the ways in which an agency makes open access information publicly available must be free of charge. Access provided in any other way can be charged for. (4) An agency must facilitate public access to open access information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record and it is practicable to delete the matter. (5) An agency must keep a record of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure. The record is to indicate only the general nature of the information concerned. (6) Nothing in this section or the regulations requires or permits an agency to make open access information available in any way that would constitute an infringement of copyright."
3. Information which is open access information is defined in s 18 and prescribed under the Government Information (Public Access) Regulation 2009 (the GIPA Regulation). Schedule 1 to the GIPA Regulation prescribes additional open access information for local authorities, including specified information relating to development applications.
4. Section 16 provides that agencies covered by the GIPA Act must provide reasonable advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available. This includes advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed.
5. Section 64 provides: "64 Processing charge for dealing with access application (1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note. The decision to impose a processing charge is reviewable under Part 5. (2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application."
6. Section 65 provides: "65 Discounted processing charge - financial hardship (1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the applicant is suffering financial hardship. Note. The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64. (2) The agency may refuse to allow the discount if satisfied that the applicant is making the application on behalf of another person in order to obtain the discount for that person. (3) The regulations may prescribe circumstances that constitute financial hardship. Note. A decision to refuse to reduce a processing charge is reviewable under Part 5."
7. Clause 9 of the GIPA Regulation provides: "9 Discounted processing charge An agency is required to reduce, by 50%, the processing charge payable under the Act for dealing with an access application if the applicant provides evidence that the applicant: (a) is the holder of a Pensioner Concession card issued by the Commonwealth that is in force, or (b) is a full-time student, or (c) is a non-profit organisation (including a person applying for or on behalf of a non-profit organisation)."
8. Section 67 of the GIPA Act provides: " 67 Waiver of processing charge for personal information application If an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application."
9. Section 68 provides: "68 Advance deposit for payment of processing charge (1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an advance deposit). Note. The decision to require an advance deposit is reviewable under Part 5. (2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency. (3) The notice requiring an advance deposit must: (a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and (b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and (c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and (d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited. (4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid)."
10. Section 71 provides: "71 Refund of advance deposit (1) An applicant is entitled to a refund of advance deposits paid by the applicant to the extent (if any) that the advance deposits paid exceed the total processing charges payable for dealing with the application. (2) An applicant is entitled to a refund of any advance deposit paid if the agency does not decide the access application within time. Note. An agency cannot impose a processing charge if it does not decide an application within time."
11. Under sub-ss 80(j) and (k), a decision to impose a processing charge or to require an advance deposit, and a decision to refuse a reduction in a processing charge, are decisions which are reviewable by this Tribunal.
12. Section 127 provides: "127 Waiver, reduction or refund of fees and charges An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations." A decision to waive or refuse to waive under s 127 is not reviewable by this Tribunal.
13. In reviewing a decision, s 63 of the Administrative Review Act 1997 provides that the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. 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.
14. In determining the application, the Tribunal may decide: " (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
15. Section 105 of the GIPA Act provides: "105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review."

What is the decision?

1. The respondent contended that the only decision which could be reviewed by the Tribunal was the decision to impose an advance deposit. It relied upon the decision of the Tribunal in Shoebridge v Office of Environment and Heritage [2017] NSWCATAD 275.
2. The applicant contended that the relevant decision was a decision to impose and/or refuse to waive the processing charge. She relied on various grounds.
3. In Shoebridge, the respondent submitted, and the Tribunal accepted, that the only reviewable decision made was its decision to require an advance deposit (section 80(j)), and that no decision had been made in relation to refusing a reduction in a processing charge (section 80(k)). The Tribunal also commented on when the entitlement to a discount on a processing charge could be determined.
4. The following statement in National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 ("NTEU") at [36], was approved by Senior Member Dinnen in Shoebridge: 36 The GIPA Act contemplates that an applicant's entitlement to a discount of a processing charge is to be determined at the time access is granted, not at the time an advance deposit is required. Sections 65(1) and 66(1) of that Act provide for an applicant's entitlement to a reduction in a processing charge "imposed by an agency." Imposition of a processing charge may only occur when an application has been determined.
5. It is relevant to note that the decision in Shoebridge was appealed to the Appeal Panel (Shoebridge v Office of Environment and Heritage [2018] NSWCATAP 144). The Appeal Panel noted that a failure to determine an application for a discount at the time of requiring an advance deposit was not a reviewable decision, and said at [31]: "In our view, the Tribunal's findings about when a decision in response to an application for a discount must be made were not an essential part of the Tribunal's decision. Lawyers sometimes call such opinions obiter dicta. Those opinions are not internally appealable decisions. Neither the Tribunal nor the Appeal Panel has power to give a binding advisory opinion about the meaning of a legislative provision."
6. The Senior Member's finding in Shoebridge that the only reviewable decision before the Tribunal was a decision to impose an advance deposit, was based on the facts of the case and an interpretation of s 80. The only relevant decisions listed in s 80 are a decision to impose a processing charge or to require an advance deposit (s 80(j)), and a decision to refuse a reduction in a processing charge (s 80(k)).
7. The applicant relied upon the correspondence between herself and the council as evidence that the Council had imposed a processing charge. In particular she relied upon the words in the letter of 21 August 2017: "We will provide you with an estimate of any charges at the earliest opportunity and you will have the opportunity to seek a discount or waiver."
8. The terms of that letter, however, do not support a finding that it contains a reviewable decision to impose a processing charge. The following letter did contain a reviewable decision. It stated: "Under s 68(1) of the GIPA Act, we request you to pay an advance deposit: of: $800 by: Monday, 9 October 2017."
9. That decision was a decision to require the applicant to make an advance payment of a processing charge (as an advance deposit) and it was the only decision which had been made at that point. The fact that an estimate of the charges had been provided does not establish that the charge had been imposed, as s 68(3)(b) requires the notice regarding an advance deposit to provide an estimate of the processing charges.
10. It is unclear exactly what kind of review or waiver the applicant was seeking in her subsequent correspondence. The respondent's response to the applicant did not specify what provision of the Act was relevant to the decision not to grant her request. Moreover it did not, on its face, comply with the internal review provisions in the GIPA Act which require the internal review of a reviewable decision not to be made by the person who made the original decision. In evidence Mr Dwyer said he "reviewed the respondent's decision" and "determined not to change the respondent's decision." He consulted the General Manager about the decision and was influenced by his view. The respondent appears to have accepted in these proceedings that an internal review was requested and conducted, as did the applicant.
11. As a decision under s 127 is not reviewable, and there is no evidence of a decision to impose a processing charge, the only decision which was made and which can be reviewed was the decision to require an advance deposit.

Whether the decision to require an advance deposit was the correct and preferable decision

1. The respondent submits that it complied with ss 68 and 69 and its decision was valid.
2. The applicant submits that the decision: 1. did not take into account the information which was open access. 2. did not take into account the fact that some of the information was her personal information. 3. did not give her a discount on the basis of financial hardship.
3. The decision to impose an advance deposit is to be made and the amount calculated on the basis of the estimated processing charge. As stated in Page v Southern Cross University [2017] NSWCATAP 89 at [43]: "As their description connotes, the 'advance deposits' provisions involve the giving of a kind of security deposit calculated against an estimate. They are 'advance' deposits in the sense that the amount is calculated in advance of the process being undertaken (or substantially in advance of the process being undertaken) and before a final costing is possible."
4. The application contains 17 paragraphs. While some of these paragraphs are reasonably specific, others (2, 12, 14 and 15) are very general and it can be inferred that searching for the information sought would involve wide ranging searches in various forms.
5. Mr Dwyer stated that the estimate was based on reviewing 15 volumes of hard copy files, a significant number of emails, a further 2,500 electronic documents and time for preparing the Notice of Decision.
6. Mr Dwyer also gave evidence that he had already accumulated 52 hours of processing time and the final hours in his view would be far more than the original estimate.
7. On the basis of the evidence I am satisfied that the respondent is entitled to the security of an advance deposit. However the deposit must be calculated against the estimate, as stated by Deputy President O'Connor in Page, and comply with the legislation. This is relevant to the additional points raised by the applicant.

Open access information

1. There was evidence that Ms Manning had visited the Council to inspect information related to DA files which was open access information. There was some dispute about whether she was offered the opportunity to make copies of that information. Mr Dwyer's evidence was that she refused to pay for the copies. Ms Manning maintained that she was told she was not entitled to make copies.
2. In the hearing, the Council stated that she was still entitled to make copies of open access information on DA files which was publicly available, if she paid the copy fee. Ms Manning declined to accept this offer.
3. Mr Dwyer's evidence was that even if Ms Manning narrowed her application to exclude DA material which was open access, it would still be necessary for Council staff to examine all the files looking for the information which was not open access and was sought by her application, if her application remained in its current form. I accept this evidence. I find that even if the fact that some material is on open access was taken into account in calculating the estimate and requiring a deposit, it would not make a significant difference, if any, to the calculation of time required.

Personal information

1. Mr Dwyer stated in evidence: "My estimate of hours was calculated exclusive of the twenty hours of personal information research". The applicant challenged his evidence on the basis that it was not made clear on the schedule provided with the notice that this time had been excluded. However, s 68(3) of the GIPA Act does not require this information to be included on the notice to the applicant.
2. While the onus is on the respondent to demonstrate that its decision was the correct and preferable one, for the purposes of the advance deposit it is only necessary to show that the first 20 hours of processing were not included. There is nothing to contradict Mr Dwyer's evidence on this point. I am satisfied on the basis of the evidence that the estimate excluded the relevant 20 hours.

Financial hardship

1. The applicant states she receives a disability pension and claims she would be entitled to a financial hardship discount. The respondent did not dispute that she had a pensioner concession card and the evidence indicates that the respondent accepts she would be entitled to the discount, as it discounted the application fee paid from $30 to $15. This was an error, however, as the discount applies to the processing charge, not the application fee. The application fee should be counted towards the processing charge.
2. The remaining issue is whether, in determining the correct and preferable decision, it is relevant to take account of the applicant's eligibility for a discount on the basis of financial hardship. In Page, Deputy President O'Connor commented that "it may be easy to establish at the beginning of the process whether an applicant fits one of the hardship categories set out in the regulations" ([42]). The advance deposit is "advance payment of a processing charge" (s 68(1)) - that is, it is a deposit on the eventual charge to be paid by the applicant, which can be reduced for reasons of financial hardship.
3. The notice of the deposit must include "a statement of the estimated processing charges for work expected to be required to be undertaken". The applicant's eligibility for a financial hardship discount could reduce the estimate of the processing charges by half. It could be argued that an estimate should take into account the fact (if known) that the applicant is entitled to a financial hardship discount. Indeed the Fact Sheet issued by the Information and Privacy Commission on Fees and Charges recommends this approach. The GIPA Act states that it is the intention of Parliament that the discretions conferred by the Act "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information." This supports a view that the decision-maker should take financial hardship into account when using its discretion to determine the advance deposit required.
4. Discretions of that kind are not reviewable by this Tribunal, however, while a decision to refuse a reduction in a processing charge is made expressly reviewable (s 80(k)). Also against any view that the Tribunal can review the amount of a deposit for not considering financial hardship is s 69(1), which says the maximum deposit that can be required is 50% of the total estimated processing charge, "ignoring any reduction to which the applicant may be entitled". In the end it is for the respondent to determine if it is satisfied on the financial hardship issue once the processing charge has been imposed. I have concluded that financial hardship is not a matter which I should consider in determining the correct and preferable decision in this case.

Conclusion

1. I am satisfied that it was the correct and preferable decision to require an advance deposit. However I have reached that decision for different reasons to those given by the respondent. The size and scope of the application and the estimate of the time involved justify the estimate, and it does not exceed the maximum permitted by the Act. Accordingly, there is no reason to justify setting aside the decision.

Orders 1. The decision to require an advance deposit 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: 08 August 2018