Mason v Department of Communities and Justice [2026] NSWCATAD 1;

The access application was not decided according to the applicable law, and is therefore not the correct and preferable decision. I am seeking an administrative review of the decision pursuant to sections 80(d) and 100 of the Government Information (Public Access) Act 2009.

1. The applicant seeks release of all information sought in the GIPA request.

Procedural matters - Section 107 of the GIPA Act

1. In submissions filed on 10 October 2025, the applicant referred to the closed hearing procedure that applies under s 107(3)(a) of the GIPA Act, which excludes him from attending the confidential hearing to be conducted by the Tribunal. He stated that he opposes any application that his legal representatives be excluded from that closed hearing and receipt of confidential evidence, on the basis that "it is not necessary to prevent the disclosure of information that is claimed to be (sic) an overriding public interest against disclosure under s 107(3)(b)."
2. The applicant argued that it is not necessary to exclude his legal representatives from the confidential hearing because:

(1) He is represented by independent counsel and solicitors who will personally undertake not to disclose - directly or indirectly - any information identified in the closed hearing or evidence;

(2) He consents to an order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCT Act) to restrict the disclosure of information received during the closed hearing;

(3) The exclusion is procedurally unfair because the respondent may make submissions which he cannot test. That unfairness is necessary in the usual case where an applicant is unrepresented, because including the applicant would render the confidential proceedings inutile. That does not arise here as he is legally represented;

(4) The separate limbs of s 107(3)(a) and (b) of the GIPA Act are specifically structured to allow represented applicants the opportunity to test evidence during the confidential hearing; and

(5) The onus is on the respondent to establish that the closed hearing orders are appropriate and it has not adduced any evidence to that effect.

1. Mr Bell argued that the Tribunal cannot exclude the applicant's legal representatives from the confidential hearing under s 107 of the GIPA Act and that each of his legal representatives individually consent to not disclose confidential information to the applicant. He argued that the legal representatives include the President's former Tipstaff and, in the case of himself, he is subject to the NSW Bar Rules. He also argued that the respondent's conduct in this matter has been such that the Tribunal's decisions in Black and Wojciechowska should not be followed.
2. The respondent argued that the integrity of the applicant's legal representatives is not in issue and it is irrelevant when the Tribunal considers the purpose and effect of s 107(3) of the GIPA Act. This provision curtails the Tribunal's procedural fairness obligations for the purposes of ensuring that information that an agency claims is subject to an overriding public interest against disclosure is treated confidentially.
3. The Tribunal has confirmed that administrative review proceedings under the GIPA Act qualify the general provisions of open justice, specifically:

(1) Section 66 of the NCAT Act, which deals with the disclosure of information by an agency to the Tribunal; and

(2) Section 107 of the GIPA Act, which deals with how the Tribunal must handle that confidential information: see Forbidden Foods Pty Ltd v Rice Marketing Board for the State of NSW (No 2) [2020] NSWCATAD 73 at [28] and McDonald v Ku-ring-gai Council [2022] NSWCATAD 17 at [35]- [37]).

1. Ms Dunford argued that in Black v Hunter New England Local Health District [2011] NSWADT 295 (Black), the Administrative Decisions Tribunal held, relevantly:

36. In my view, the qualifying words after the words "applicant's representative", in paragraph 107(3)(b), equally apply to paragraph 107(3)(a).

37. However, I agree with the contentions of the HNELHD [the respondent agency] that subsection 107(3) is mandatory in operation in that where the Tribunal forms the opinion as prescribed in that subsection it must receive the evidence and hear argument the subject of the agency's application in the absence of the public, the applicant and the applicant's representative.

1. Further, in Amos v Western NSW Local Health District [2017] NSWCATAD 176 (Amos), the Tribunal confirmed that s 107(3) operates not only where there is an overriding public interest against disclosure, but also where "there could be or is claimed to be" an overriding public interest against disclosure.
2. Ms Dunford also referred to the Tribunal's reasoning in Wojciechowska v Secretary, Department of Communities and Justice [2025] NSWCATAD 2 (Wojciechowska) regarding the interaction between s 66 of the NCAT Act and s 107 of the GIPA Act, as follows:

25. One effect of s 66(3) of the NCAT Act is that where the tribunal directs an agency to file and serve material, and there is an overriding public interest against disclosure of that material, the Tribunal is to do "all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings..."

26. The text of s 66(3)(b) of the NCAT Act refers to information for which there is an overriding public interest against disclosure. Unlike s 107(3) of the GIPA Act, it does not expressly refer to information "for which there could be or is claimed to be, an overriding public interest against disclosure." One purpose of s 107(3) of the GIPA Act and s 66(3)(b) of the NCAT Act, when read together, is to ensure that "confidential information" is not disclosed to an applicant without the agency's consent. The Tribunal cannot determine whether the material contains "confidential information" until after hearing the evidence and submissions. If the Tribunal directs an agency to serve purportedly "confidential information" on an applicant before the hearing it risks being in breach of s 107(3) of the GIPA Act when it receives evidence and hears argument during the hearing. Such a direction would defeat the purpose of s 107(3) of the GIPA Act.

1. Ms Dunford stated that the respondent's reasons for why it is necessary to receive evidence and receive its confidential material in a closed hearing are set out in its confidential submissions. It is necessary for the respondent to make those submissions on a confidential basis as they identify the material subject to the claim of an overriding public interest against disclosure.
2. Ms Dunford stated that contrary to the applicant's submission (at para 13(e)), the making of an application under s 107(3) is ordinarily not a matter for evidence, but is part of the Tribunal's routine procedure in GIPA administrative review matters. All the respondent agency must demonstrate is that the disputed information is subject to a claim of an overriding public interest against disclosure (see Black at [37]).
3. Ms Dunford argued that disclosure of the confidential material to the applicant's legal representatives would amount to disclosure of information to which the respondent asserts there is an overriding public interest against disclosure, irrespective of any undertakings given by the applicant's representatives.
4. Ms Dunford stated that the respondent agrees with the Tribunal's reasoning in Wojciechowska, that this should only be considered with the agency's consent. If the applicant's legal representatives were provided access to the confidential material, it could have very limited utility in counterbalancing the procedural fairness concerns raised by the applicant which are inherent to GIPA administrative review proceedings. The applicant's representatives must act on instructions and they have professional obligations to serve the Tribunal and the interests of their client. It follows that:

(1) The applicant will remain constrained in his ability to test the confidential material, as he cannot give detailed instructions to his legal representatives, and his representatives cannot seek detailed instructions without disclosing the confidential material. In this way, the legal representatives cannot conceivably serve the interests of both their client and the Tribunal; and

(2) No purpose is served by disclosing the disputed information to the applicant's legal representatives, contrary to s 107(3) of the GIPA Act, particularly as such an order would pose inherent risks of disclosure by a legal representative, either inadvertently in the course of seeking instructions from the applicant, or for example, by way of a data breach.

1. Ms Dunford addressed relevant case law as follows:

(1) Access to the applicant's representatives was refused in Black and in Sheehy v Commissioner of Police (NSW) [2018] NSWCATAD 73 (at [28] to [33]); and

(2) In appeal proceedings, the respondent agency raised concerns that the Tribunal's redactions did not properly reflect the Tribunal's orders and, in doing so, the Tribunal had breached s 107(1). To resolve the matter, the parties agreed by consent to review the agency's proposed redactions to consider resolving the case based on those proposed redactions. The parties reached agreement, and orders were made by consent - Department of Family and Community Services, Housing (NSW) v Edwards [2-13] NSWCATAP 17 (at [13] to [20]).

1. After hearing the parties' submissions, the Tribunal determined that s 107 of the GIPA Act requires it to consider and receives evidence over which there is a claim of an overriding public interest against disclosure in the absence of the applicant and his legal representatives.

1. The respondent identified the issues in dispute as follows:

(1) Whether it conducted reasonable searches for the government information sought in the GIPA request; and

(2) Whether the applicant should be provided with access to the government information sought in the GIPA request.

1. The respondent argued that the correct and preferable decision is for the Tribunal to find that: (1) It conducted reasonable searches for government information falling within the scope of the GIPA request and has discharged its onus under s 53 of the GIPA Act; and(2) The decision to withhold access in full to the government information sought in the GIPA request should be affirmed, as it is subject to an overriding public interest consideration against disclosure, specifically under cll 3(a), 3(b) and 6 of the table to s 14(2) of the GIPA Act.

1. The respondent relied upon the following evidence:

(1) Open tender bundle - Ex 1; and

(2) Open affidavit of Sarah Goldie affirmed on 23 September 2025 - Ex 2

1. Ms Goldie deposed that she is the Senior Operations Manager of the Office of the Commissioner (OOC) of CSNSW and has held that position for nine years. The OOC is a small team within CSNSW that provides executive support to the Commissioner and it is the key point of contact for the Secretary of the Respondent and for the Minister for Corrections. She is primarily responsible to provide information and advice to the Commissioner when contentious issues arise, to attend meetings, to review briefs and submissions that come in for the Commissioner's consideration and managing the staff within the OOC. She is also a key contact for the Open Government Information and Privacy Unit (OGIP) within the respondent for high profile GIPA requests that relate to CSNSW or GIPA requests where the information requested is likely to be held by the OOC.
2. Ms Goldie stated that she conducted the original searches in response to the GIPA request in late-May and early-June 2025. She stated that on 23 April 2025, the Manager of the OGIP Unit sent her an enquiry asking for advice on where to direct searches for the GIPA request within CSNSW. On the basis that the GIPA request sought information about visitor restrictions, she decided that the State-Wide Operations Branch would be best placed to assist. This branch sits within the Security and Custody Division of CSNSW and the Visitor Restriction Unit sits within it and handles decisions about visitor restrictions.
3. Ms Goldie stated that on 16 June 2025, she was copied into an email chain by the Manager of the Visitor Restriction Unit (VRU), that the GIPA request should be directed to the OOC, because the VRU did not exist in 2007. She then commenced searches for the requested information and corresponded directly with the decision-maker about the GIPA request. She located two records: (1) CSSW Memorandum dated 28 July 2007; and (2) OIMS Entry dated 27 July 2007.
4. Ms Goldie stated that she conducted searches using the following systems: (1) the OOC's shared email address; (2) her own CSNSW email address; (3) EDRMS (CSNSW's electronic document and records management system that has been in use since 2012); and (4) the OOC's SharePoint folders. This is a secure file sharing platform used by the OOC to store operational information, such as procedures, processes, templates and other commonly used documents.
5. Ms Goldie set out the search terms that she used. She stated that the CSNSW Memorandum was located in EDRMS, but as the release of this information was in dispute, a redacted copy was attached to her open affidavit. She also asked the Acting General Manager of Statewide Operations to conduct searches of the OIMS database, which is the primary corporate system for the management of offenders, but all CSNSW visitors also have a profile linked to their Visitor Identification Number (VIN). The OIMS entry was located during these searches and provided to her and a redacted copy was attached to her open affidavit.
6. On 1 August 225, Ms Dunford advised her of the current application for administrative review and asked for clarification of the searches conducted by the OOC. She reached out the General Manager of Statewide Operations to enquire about his (or his team's) knowledge of the procedure and record-keeping practices regarding visitor restrictions that were in operation in 2007.
7. Ms Goldie stated that on 5 September 2025, she as copied into an email from Ms Dunford and the Corporate Records Management Unit, asking whether the requested information is held in archiving. On 8 September 2025, the Corporate Records Management Unit replied that a search was conducted on EDRMS using listed search terms. One record was located, being a spreadsheet that set out files which the VRU transferred to archiving in 2016. However, the spreadsheet also detailed other files that are outside the scope of this GIPA request and she redacted the information relating to those other files.
8. Ms Goldie stated that an Archive Certificate number at the top of the spreadsheet, "A119/16", indicates that the requested file was destroyed after being retained for 7 years. The Records Management Unit also provided an Archive Destruction Certificate, confirming that the items relating to that Archive Certificate were confidentially destroyed in August 20. She annexed a copy of the Destruction Certificate to her open affidavit.
9. Ms Goldie stated that this procedure is consistent with the State Archives and Records Authority of NSW's Functional Retention and Disposal Authority: FA408, which sets out that records relating to visitors must be retained for a minimum of 7 years after the relevant action is completed, then destroyed. A copy of that Authority is annexed to her open affidavit.
10. Ms Goldie deposed as to the current procedure around decisions to bar visitors from NSW Correctional Centres, under Part 5 of the Crimes (Administration of Sentences) Regulation 2014 (the CAS Regulation). As she was not employed by CSNSW in 2007, she made Ms Goldie stated that she made enquiries with State-Wide Operations regarding the procedure in force at that time. Based on the information that she received, she stated that:

(1) The VRU did not exist then and these functions were performed by a team of two CSNSW staff (senior correctional officers), who were attached to the OOC and reported to a Superintendent;

(2) These functions were late transferred to different parts of CSNSW before finally settling within Custodial Corrections. All of these areas have since been restructured and new reporting lines have been created.

(3) As the CAS Regulation had not been introduced, authority under cll 108 and 108A had not been delegated and the CSNSW Commissioner made all decisions regarding the banning and restricting of visitors.

(4) That procedure was similar to the current procedure, except that the document outlining the recommendation to ban a visitor would have been sent by hard copy via internal mail to the OOC, for the Commissioner's consideration and determination.

(5) A Memorandum issued by the CSNSW Commissioner is a document that applies to all CSNSW staff and the whole of CSNSW Operations and it is issued to communicate changes to any functions and operations affecting CSNSW.

(6) She understood that the OIMS entry was recorded on Ms Nasser's visitor profile. OIMS is centrally accessible to all CSNSW staff and there is also evidence that the VRU held a file in her name, which was destroyed in 2023. As the file was destroyed, it is unclear what type of records it contained or whether any part of it may have been within the scope of the GIPA request.

1. In her supplementary open affidavit dated 1 October 2025, Ms Goldie corrected evidence contained in para 17 of her first open affidavit, to state that the OIMS entry had been sent to her by the Manager of the VRU and not the Acting General Manager, State-Wide operations. She attached the relevant email to this affidavit.

1. In cross-examination, Mr Bell asked whether CSNSW staff comply with the CAS Act and the CAS Regulation. Ms Goldie replied, "Yes." Mr Bell then put to Ms Goldie that from time to time, CSNSW releases information to the public in compliance with s 257 of the CAS Act. She replied, "Yes."
2. Mr Bell then put to Ms Goldie that when information is released to the public by CSNSW, it is done in connection with the administration of the CAS Act and that if the requested information were obtained from CSNSW, it would have been released under s 257 of the CAS Act.
3. Ms Goldie did not accept that proposition and stated that it was also possible that the requested information was disclosed by Ms Nasser to a journalist. As the records have been destroyed, it is speculation.
4. Mr Bell asked Ms Goldie if she was aware of any action between the Commissioner and Ms Nasser? She replied, "No." He then asked whether there had been any operational impacts on the Commissioner's Office since 2007? She replied to the effect that she was not aware of this, but that the current procedures are different to those in effect in 2007.
5. Mr Bell questioned Ms Goldie about her evidence regarding the policy for retention of documents. She stated that while there is evidence from CSNSW that the records were destroyed in 2023, and she worked for CSNSW in 2023, she did not work in the team responsible for the destruction of documents. However, the information provided to her by the Corporate Records Unit leads her to believe that the records were destroyed under the policy in 2023.
6. The applicant put to Ms Goldie that it would have been possible for the respondent to go to the State Records Facility in Kingswood to conduct a search for archived records. However, she replied to the effect that as there was evidence that the file had been destroyed, she did not consider that to be a reasonable search.

1. In re-examination, Ms Dunford asked Ms Goldie to clarify her role in relation to searches, and she stated that it is basically to direct traffic as it is rare that the OOC directly holds records sought in a GIPA request. She is not involved in the decision-making process in response to a GIPA request and she stated that she was not been involved in any Protected Interest Disclosure about Ms Nasser.
2. In relation to searching for records in OIMS, Ms Goldie stated that there is no generic search function and a number of fields are involved in a search. The person doing the search may need a certain amount of information to work out where to search and the starting point is the individual's name.

1. The applicant filed written submissions filed on 13 October 2025, which are summarised below.

The information is not subject to an overriding public interest against disclosure

1. The applicant disputes the respondent's assertion that any information caught by the GIPA request would be personal information. The applicant declined to make that concession. Further, any information which describes CSNSW's operational process may be information that was crated because of Ms Nasser, but that does not make it information about her. The respondent does not rely on, or refer to, the personal information of any individual other than Ms Nasser.
2. The applicant argued that all of the following information is in a publicly available publication (news articles) and therefore cannot be personal information:

(a) In 2007, Ms Nasser was accused of having an "improper relationship" with an inmate while she worked as a criminal defence lawyer.

(b) Ms Nasser was banned because she was forwarding her clients' calls to their associates on the outside.

(c) Ms Nasser was deemed by Corrective Services to be a security risk.

(d) Ms Nasser was banned by NSW Corrective Services from entering any prison in NSW for up to two years.

(e) Corrective Services took no further action in relation to Ms Nasser.

(f) Ms Nasser was the lawyer for Bassam Hamzy; Michael Ibrahim; Hassan Kalache; and generally for notorious gangland figures.

1. The word "reveal" is not used in the definition of "personal information" so it cannot be qualified by any definition in the GIPA Act. That is not an absurd result; it reflects that information which is no longer private should not be withheld on privacy grounds. To the extent that the disputed information is identified above (in para 44 of these reasons), it cannot be personal information and that is a complete answer to reliance on cll 3(a) and 3(b) of the table to s 14(2) of the GIPA Act.
2. In relation to cl 3(a), the respondent disputes that the information is already in the public domain, because it was obtained "unlawfully" and because "reveal" means "to disclose information that has not already been publicly disclosed (other than by unlawful disclosure)". That submission is misconceived because:

(1) In the GIPA Act, the work "reveal" is used only in the public interest considerations against disclosure in s 14 and Sch 1. That is, the carveout "otherwise than by unlawful disclosure" restricts the circumstances that an agency can say that the information would be "revealed" if released through the GIPA Act. That is both because a definition only has operative effect to the extent it is deployed in a provision; and because the words "otherwise than by unlawful disclosure" qualify the main verb "to disclose" rather than "information that has not already been publicly disclosed." The purpose of the definition is to prevent an agency from arguing that it cannot release de-identified information because someone may unlawfully hack the agency and identify a person, thus causing a revelation of personal information because the person is now identified.

(2) The respondent relies upon Thompson v Commissioner of Police [2021] NSWCATAD 53 at [146], which says that the words "publicly disclosed" "require there to have been a prior disclosure of information to the general public". That leaves no room for a wider enquiry about the source of the information.

(3) The Agency bears the onus to prove that the information in the public domain was obtained unlawfully. There is not a skerrick of evidence about this. The decision under review concedes as such, by saying the respondent "cannot determine whether it was lawfully obtained and the source of any such information." This allegation is serious and it requires cogent evidence. There is none. Where there is information indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not: Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40]; Pedestrian Council of Australia Limited v North Sydney Council [2014] NSWCATAD 80 at [61]- [63].

1. The respondent argues that information must be verified to be in the public domain. However, that has no basis in the statutory text or jurisprudence developed by the tribunal.

1. The applicant argued that there can be no disclosure of information that is already known to the recipient of the information: Insurance and Care NSW v FMM [2024] NSWCATAP 43. Therefore there can be no breach of s 18 of the PPIPA for the same reasons.

1. The applicant argued that only limited weight can be given to cll 3(a) and 3(b) of the table to s 14(2) of the GIPA Act, because: (1) the information relates to events from 18 years ago; (2) the most important information (the name, the fact of the ban and the key reasons) have been revealed; (3) If the fact of the ban, or the reasons, have been incorrectly reported, that is a powerful reason that the information should be released to correct the record; (4) the information is widely reported: 24 separate articles from six separate mastheads and 12 separate journalists, over a period of 18 years in national newspapers which are available online and in print; and (5) the respondent has failed to produce any specific evidence as to sensitivity or otherwise.

1. Clause 6 of the table to s 14(2) of the GIPA Act applies where the disclosure could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of a provision of any other Act... that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions". This extends to consideration of the policy that underlies the prohibition against disclosure: cl 6(2).
2. The applicant argued that while the respondent relies on s 257 of the CAS act, it omits important parts of that section. However there cannot be disclosure of information for reasons set out previously in his submissions.
3. Further, the applicant argued that s 11 of the GIPA Act overrides s 257(1) of the CAS Act, limiting its relevance, if any, to the balancing exercise arising from s 14 of the GIPA Act. The submission that if the disputed information were released, CSNSW would be in breach of s 257 of the CAS Act is misconceived.
4. Even if s 257(1) applies, it is not possible to put any weight on it because:

(1) Ms Goldie does not suggest that releasing information relating to a decision made 18 years ago could possibly have any operational effect on the respondent, especially where the decision pre-dates the statutory process for excluding visitors (and the process has been held to be in valid on two occasions since then). The respondent has adduced only vague hearsay evidence about what the procedure was at the time.

(2) The release of information under the GIPA Act is done in connection with the administration of the CAS Act because part of the administration of the CAS Act is compliance with government information disclosure laws.

(3) The legal obligation to disclose information under the GIPA Act is a lawful excuse under s 257(e).

(4) Section 257 is designed to protect against CSNSW staff taking sensitive information and using it for extraneous or personal purposes. That isa completely different scenario from disclosure of information under the GIPA Act.

(5) There is no, or at least very limited, sensitivity in fact of the information given the age and widespread reporting to date.

1. The applicant relied upon the general presumption in favour of the release of government information and the examples in s 12(2) of the GIPA Act. He argued that the issue of legal access to prisoners is a matter of public interest, and in 2022, the Court of Appeal held that the power to refuse permission to an inmate's legal practitioner to visit for any reason is not sustained by the regulation making power under cl 94 of the CAS Regulation 2014., and the consequent ban on allowing inmates access to their chosen legal representative was unlawful: Hamzy V Commissioner of Corrective Services NSW [2022] NSWCA 16.
2. The following personal factors of the applicant weigh in favour of disclosure: (1) He is an investigative journalist who is subject to the MEAA Code of Ethics, which obliges him to verify sources, report accurately and fairly. The GPA Act has an obvious role to assist in that endeavour; and (2) he works for a reputable masthead of record, which establishes that information obtained would be the subject of responsible reporting under editorial supervision.

1. The applicant argued that if they apply, the public interest considerations against disclosure are weak and there are compelling public interest considerations in favour of disclosure.

1. The applicant noted that the respondent has not consulted with Ms Nasser and there is no evidence as to what efforts were made or considered by the respondent to consult with her. Ms Nasser is widely reported to be a director of WiseTech, and the respondent has not done even a company search for an address for service. The obligation is to take such reasonable steps as are reasonably practicable to consult.

1. The applicant stated that he agrees that the approach adopted by the Appeal Panel in Wojciechowska is correct. However, the implied decision that no further information is held should be set aside for the following reasons:

(1) The searches done to prepare the decision under review were superficial. They were searches of email addresses and online storage systems that were not in place in 2007, when the information would have been in physical/hard copy documents.

(2) The reasons given that limited records would exist are unpersuasive. The resident states that visitors have very limited contact with CSNSW and therefore limited contact would arise, but this is not the case for a lawyer who had such an interaction with a prisoner as to give rise to a ban.

(3) The respondent refused to substantiate its searches and/or to produce any records underlying Ms Goldie's hearsay evidence.

(4) There are obvious further searches that should have been conducted, which means that the tribunal should not find that the respondent has complied with s 53 of the GIPA Act:

(a) No search was conducted at the State Records Facility in Kingswood; and

(b) Searches of records relating to the inmate whom Ms Nasser was visiting. If the inmate were Bassam Hazy, it would be expected that the records would be retained for legal proceedings. A similar consideration arises for Michael Ibrahim and Hassan Kalache. Those searches should have been considered and undertaken.

1. The applicant concluded that the Tribunal should set aside the decision under review and order that the disputed information be released, or that the matter otherwise be remitted to the respondent to conduct further searches. He reserved his rights with respect to costs.

1. The respondent argued that it has undertaken reasonable searches for the information sought in the GIPA request ad has discharged its obligations under s 53 of the GIPA Act. Its searches located three documents, namely: (1) an OIMS entry; (2) a CSNSW Memorandum; and (3) evidence that a file in Ms Nasser's name, which had been archived by the VRU in 2016, was destroyed in 2023.
2. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173, Senior Member Britton considered the test for "reasonable searches":

43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act.

1. Principal Member Britton set out the following signposts to assist agencies in determining whether they had conducted reasonable searches:

36. Section 53 of the GIPA Act imposes an obligation on an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). That obligation is limited to "information held by the agency when the [access] application is received": s 53(1). The search must be conducted "using the most efficient means reasonably available to the agency": s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources."

37. ... where it is reasonably likely that the requested information exists and is held by the agency, a cursory search said to be unable to find the requested information, is unlikely to satisfy the obligation imposed by s 53.

1. Principal Member Britton discussed the scenario where searches are challenged, but the information cannot be located, but the decision gives no real guidance on how respondent in that position may escape the circular reasoning to discharge the onus imposed on it to prove it made reasonable searches.
2. In CLT v Department of Education [2022] NSWCATAD 34, Senior Member French observed:

40. Having had regard to the totality of the agency's evidence I am satisfied that it has conducted reasonable searches for government information that falls within the scope of the applicant's access request. In this respect it is important to bear in mind that s 53 imposes a standard of "reasonableness" in relation to the searches required to be undertaken by an agency rather than any absolute or strict standard. Such searches must therefore be "logical," "sensible," "appropriate," and "fair" but are not required to be "extreme" or "excessive" (to illustrate using synonyms and antonyms). The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency's obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative or belligerent observer.

41. It thus falls to the agency to establish pursuant to s 105 of the GIPA Act that it has carried out searches for government information within the scope of the access request in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant's section 9(1) right to government information.

1. In Fisher v Upper Lachlan Shire Council [2022] NSWCATAD 65, Senior Member Higgins observed:

78. ...while there might be an expectation or obligation that a public sector agency holds the specified information for which access is sought, and the public sector agency fails to locate that information in dealing with the access request, this does not automatically mean that the public sector agency has failed to comply with the requirements of s 53(2). On the contrary, it can also mean that the public sector agency does not hold the information, which is a decision that is open to the public sector agency to make under s 58(1)(b) of the GIPA Act regardless of whether there is an expectation or obligation on that agency to have and hold such information.

1. The respondent argued that the Tribunal should be guided by the test for reasonableness provided by Garling J in R v Warwick, but did not provide any case citation. The Tribunal notes the multiple reported judgments in the course of that particular criminal trial and the Tribunal is unable to ascertain which of those published judgments is the subject of the submission.
2. The respondent referred to the decision of Judicial Member Montgomery in Matthew v Police (NSW) [2013] NSWADT 225. There had been a significant number of years since the relevant records would have been created and the Tribunal found that there were reasonable grounds to believe that there may have been other information in existence that fell within the scope of the GIPA request. However, the Judicial Member held that it was not reasonable to expect the respondent to undertake a search of records that are not in electronic form and which dated back over 30 years, as such an expectation would be unreasonable in the circumstances.
3. The respondent argued that the passage of time since 2007 provides an explanation as to why government information has not been located following reasonable searches. Beyond the passage of time and change to records management practices acknowledged in Matthew, Ms Goldie's evidence is that any information that was once held by CSNSW is beyond the retention period set out in the State Records Functional Authority. It is not reasonable to expect the respondent to conduct additional searches for historic records given the relevant State Records Functional Authority. There is no reason to believe that any further records are held by the respondent.
4. In relation to consultation with Ms Nasser, the respondent argued that this was considered, but it was not reasonably practicable to consult with her as it was not able to locate any current contact information. On 10 September 2025, the respondent emailed the applicant and asked whether he had any contact information for Ms Nasser for the purposes f enabling consultation. The following response was received on 17 September 2025:

In respect of your request that our client provide the department with the personal information of Ms Nasser, our client declines to do so. To the extent that our client may have access to information of this kind, it would be held by the applicant's employer, that entity is subject to the Australian Privacy Principles and would be in breach of its privacy obligations if it were to disclose personal information.

1. The respondent noted that in Guideline 5, the Information & Privacy commissioner acknowledges that an agency being unable to locate a third party's contact details may be a practical obstacle to consultation under s 54(1).
2. The respondent argued that information about a visitor to a correctional centre, including information about any prohibition or restriction on their ability to visit a correctional centre, is personal information for the purposes of sch 4 cl 4 of the GIPA Act, as it is information about an individual and their identity is reasonably apparent. None of the exemptions to the definition of personal information in Sch 4 cl 4(3) apply in this matter.
3. In more-recent decisions, he Tribunal has focussed on the use of the term "public" within the definition of reveal, such that the prior disclosure must be public: see Woolley v Lismore City Council [2013] NSWADT 10; AEZ v Commissioner of Police NSW) [2013] NSWADT 90; EHW v Secretary, Department of Education [2022] NSWCATAD 140 (EHW); and Thomson v Commissioner of Police (NSW) [2021] NSWCATAD 53 (Thomson).
4. In EHW, the Tribunal stated:

135. I agree that the construction for which the respondent contends reflects the ordinary meaning of the words "public disclosure" and that, if disclosure to an individual was sufficient, the word "public" would have no work to do and further, that the legislative intent behind ss 15(e) and 73 supports the narrower construction of "public disclosure".

146. I agree with the Respondent that the words "publicly disclosed" require there to have been a prior disclosure of information to the general public. In Woolley v Lismore City Council [2013] NSWADT 10 at paragraph [88] the Tribunal held that where the applicant knew the name of a person their personal information had not been revealed where there was no evidence that the information had already been publicly disclosed. This view was adopted by the Tribunal in Jamieson v Department of Justice [2019] NSWCATAD 173 at paragraph [59].

1. The respondent noted that there has been prior public reporting asserting a ban on Ms Nasser, but that the meaning of reveal turns on a "public disclosure" and not merely whether information exists in the public domain. It argued that it would be absurd if cl 3(a) of the table to s 14(2) of the GIPA Act was interpreted such that the existence of prior public reporting on an issue would mean that there has been a prior public disclosure. This would mean that any information in the public domain could prevent an agency from relying on a public interest consideration against disclosure that contains the word "reveal."
2. In this matter, the source of the information in the public domain about Ms Nasser are not identifiable. The pattern of reporting demonstrates that the assertions contained in the published articles are speculative, as the articles are unsourced and they contain no evidence of any disclosure of information by CSNSW or Ms Nasser.
3. There is no evidence that the disputed information has been publicly disclosed and it is likely that if media organisations who reported on the banning had an official source, that would have been referred to in the report. In Thomson, the Tribunal stated, relevantly:

147. I do not agree with the Applicant that redacted personal information has been revealed because the personal information is already known to him. The personal information has not been publicly disclosed and disclosure to the Applicant would therefore "reveal" that personal information...

149. It is probable that the Applicant is aware of the identity of the persons whose information is in issue but there is no evidence that this information had been publicly disclosed. In my view, this is not a matter in which de-identifying a document would address concerns about the release of personal information.

1. The respondent argued that the current matter is similar to that considered by the tribunal in Thomson, and that the Tribunal should find that disclosing the disputed information to the applicant under the GIPA Act would be to reveal personal information of an individual. Therefore, cl 3(a) applies.
2. The respondent argued that some of the government information contained within the OMS Entry and the CSNSW Memorandum is personal information for the purposes of the PPIPA and that release of that information would contravene s 18 of the PPIPA. The Tribunal considered the exception to the definition of personal information in s 4(3)(b) of the PPIPA in EG v Police Service NSW [2003] NSWADT 150 (EG).
3. EG was a privacy dispute under the PPIPA and the applicant sought disclosure of information about him to the Legal Professions Admissions Board (LPAB). In the original internal review, the agency decided that information disclosed to the LPAB was not personal information because the exception at s 4(3)(b) of the PPIPA applied. During the proceedings, the Privacy Commissioner regarding the interpretation of s 4(3)(b),as follows:

17. On the issue of the meaning of s 4(3)(b), the Privacy Commissioner submitted that information derives its significance from both its content and the context in which it is held and communicated. According to the Privacy Commissioner, the context is important as the same or reasonably similar information can assume a different significance depending on the circumstances in which it is collected, used or disclosed.

18 To illustrate this point, the Privacy Commissioner gave the example of a name and address in a telephone directory as conveying a different meaning from the same name and address held in the file of a child protection agency. The Privacy Commissioner's view was that while the raw 'data' is the same, the context makes the data two different pieces of information. Using the same analogy, the Privacy Commissioner regarded the data about the applicant in a newspaper article and data about the applicant in an authorised communication from an employer as two distinct pieces of information.

19 The Privacy Commissioner submitted that a communication from an employer has much greater authority than that from a newspaper report. This is because a communication from an employer is based on the employer's own awareness of information relating to the employee and not on information obtained from the newspaper report.

1. The respondent noted that the Tribunal acknowledged that context and content is relevant to the meaning of information, but rejected that this provided any legal basis for concluding that the exception in s 4(3)(b) applies, as s 4(3)(b) is "clear and unambiguous" ([24]-[25]).
2. As to what is a publicly available publication in EG, the Tribunal found that some of the information in issue was published in a Daily Telegraph article:

23 I take judicial notice of the fact that the Daily Telegraph is a newspaper which is in broad circulation among the general public in the Sydney Metropolitan area. It is clearly a "publicly available publication." The remaining issue is whether the second paragraph of the letter is information about the applicant contained in the Daily Telegraph.

1. As to whether any of the information about Ms Nasser in the OIMS Entry or CSNSW Memorandum is subject to s 4(3)(b), the respondent lodged confidential submissions.
2. The respondent concluded that cl 3(b) of the table to s 14(2) of the GIPA Act applies to the personal information of Ms Nasser contained within the PIMS Entry and the CSNSW Memorandum, as it is personal information under s 4(1) of the PPIPA to which s 4(3)(b) does not apply. This consideration against disclosure should be given significant weight.
3. In relation to cl 6 of the table to s 14(2) of the GIPA Act, the respondent argued that while s 11 of the GIPA Act provides that the GIPA Act overrides secrecy provisions (other than those listed in Sch 1, cl 1 of the GIPA Act), the inclusion of cl 6 demonstrates that where government information is subject to a secrecy provision, this may be given weight against the disclosure of the information under the GIPA Act.
4. The respondent argued that CSNSW information is protected by s 257 of the CAS Act, which prohibits disclosure of information obtained in the administration and execution of the CAS Act, unless one of the exemptions under s 257(1) applies. It is also a criminal offence provision, which reflects the highly sensitive nature of the information held by CSNSW.
5. Both the OIMS Entry and CSNSW Memorandum were created by CSNSW for the purposes of administering its functions under the CAS Act. The administration of visits, including the restriction of visitors, is now dealt with explicitly under the CAS Regulations. Therefore, but for the GIPA Act, release of these records would amount to a disclosure of information obtained in the execution or administration of the CAS Act and it would contravene the secrecy provision at s 257(1) of the CAS Act.
6. In relation to the policy considerations for secrecy under the CAS Act, the respondent noted that the Tribunal considered the application of cl 6(2) of the GIPA Act in Mookhey v Department of Finance, Services and Innovation [2018] NSWCATAD 128 (at [46]-[47]). In applying the consideration to the secrecy provisions under Div 3 of Pt 9 of the Taxation Administration Act 1996 (NSW), the Tribunal referred to a decision of Lockhart J in Consolidated Press Holding Ltd v Federal Commissioner of Taxation (1995) 128 ALR at 446, as follows:

53. It is essential if the confidence of taxpayers is to be maintained that private information concerning their finances and affairs will not be disclosed except in the special circumstances mentioned.

That this is a public policy underlying the secrecy provisions of the Tax Administration Act is evident from the very clear word of s 85.

1. The Tribunal attributed considerable weight when considering that the disclosure would, but for the operation of the GIPA Act, be a breach of the secrecy provisions.
2. The respondent also referred to the introduction of the Crimes (Administration of Sentences) Amendment Bill 2016 on 12 October 2016, which significantly increased the penalty for a breach of s 257 of the CAS Act from 10 penalty unity to 200 penalty units, two years imprisonment or both. This demonstrates the seriousness that Parliament places on the protection of CSNSW information. Accordingly, the secrecy provision should be given very significant weight.
3. After addressing the public interest test, but for the contents of the confidential submissions, the respondent argued that public interest considerations against disclosure outweigh the general public interest considerations in favour of disclosure.
4. In relation to the lack of consultation under s 54(1) of the GIPA Act, the respondent argued that the information in the OIMS Entry and CSNSW Memorandum is information relating to Ms Nasser of the kind that requires consultation under s 54. Given the nature of the information, it is reasonable to expect that Ms Nasser may have concerns about the disclosure of the information and that those concerns would be relevant to the public interest considerations against disclosure relied upon by the respondent, particularly to the applicant in view of the stated purpose of the GIPA request.
5. The respondent argued:

141. where consultation is not possible, the respondent submits that, due weight must still be given to the identified considerations in the absence of the views of the third party, because:

a. To give the identified considerations no or little weight would mean that the third party would lose the protection of the consideration simply because it was not practicable to consult with the,. This is inconsistent with the overall consultation scheme established by the GIPA Act.

b. As they have not been consulted, the third party has not had an opportunity to express their objection or given the protection of third party review rights.

c. In the case of consultation with a third party, on the basis that the government information includes their personal information, the consultation regime under the GIPA Act is consistent with the principles of privacy law that individuals are informed about the handling oof their personal information, including its disclosure.

1. The respondent referred to the decision in Sherman v Commissioner of Police NSW Police Force [2016] NSWCATAD 107, that the release of information under the GIPA Act is the release of information to the world at large. Therefore, considerable weight should be given to this public interest against disclosure, as the effects will be magnified and exacerbated by the applicant's stated intention to publish the information.
2. The respondent also argued that disclosure of the information in the OIMS entry and CSNSW Memorandum for the purpose of satisfying media fascination and speculation is antithetical to other provisions that protect that it (cll 3(a), 3(b) and 6 of the GIPA Act, and would set a precedent that is unfavourable to the public interest. The respondent also stated:

146. Doing so would also set a concerning precedent suggesting that CSNSW Information and/or personal information, is of low sensitivity and should be released where there is some salacious or speculative interest, or even tat the Respondent must confirm allegations regarding visitors or inmates whenever they arise.

147. Public fascination and curiosity about inmates and the correctives system generally is common. There is very frequently curiosity about the operation of correctional centres generally, but also specifically the actions of high-profile individuals (ordinarily inmates) involved in the correctional system. The respondent submits that this "interest" while not illegitimate, is distinguishable from the "public interest in favour of disclosure" set out in the GIPA Act.

148. If the respondent was required to release government information that is personal information or subject to a secrecy provision whenever three was any media interest or public speculation about a particular issue relating to an individual involved with CSNSW or CSNSW functions ad operations generally, CSNSW would be frequently called upon to release a range of sensitive information about individuals and also CSNSW operations in response to an insatiable public curiosity about these matters. Such disclosures would undermine the purpose of the secrecy provision, rendering its operation redundant by virtue of the operation of the GIPA Act and specifically s 11.

1. Both Mr Bell and Ms Dunford made oral submissions, which essentially repeated the contents of their written submissions.
2. At the completion of the oral submissions, the Tribunal adjourned the matter for a further confidential hearing under s 107 of the GIPA Act, to be conducted on 25 November 2025.

1. The Tribunal considered it necessary to conduct a hearing in relation to the disputed information under s 107 of the GIPA Act. Tas per the Tribunal's earlier ruling, this was conducted in the absence of the applicant and his legal representatives.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]
15. [NOT FOR PUBLICATION]
16. [NOT FOR PUBLICATION]
17. [NOT FOR PUBLICATION]

1. At the completion of the confidential hearing, the Tribunal reserved its decision.

1. Section 3 provides that the object of the Act is to open government information to the public and subs (2) provides that it is the intention of Parliament that (a) the GIPA Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
3. Section 9 confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
4. Section 12 provides for public interest considerations in favour of disclosure and provides general examples.
5. Sections 13 and 14, relevantly provide:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

14 Public interest considerations against disclosure

...

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information...

Table

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -

(a) reveal an individual's personal information,

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

4 Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -

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

6 Secrecy provisions

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

(2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.

1. Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information:

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles-

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

1. Section 54 provides:

54 Consultation on public interest considerations

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

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

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

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

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

(a) includes personal information about the person, or

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

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

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

Note-

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

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

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

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

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

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

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

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

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

1. Section 58 provides:

58 How applications are decided

(1) An agency decides an access application for government information by-

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note-These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

1. Section 61 provides:

61 Notice of decision to refuse to provide access

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

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

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

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

80 Which decisions are reviewable decisions

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

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

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

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

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

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

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

105 Onus on agency to justify decisions

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

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

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

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

Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of-

(a) the public and the applicant, and

(b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

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

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any

36 Guiding principle to be applied to practice and procedure

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

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

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

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

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

(a) a party to proceedings in the Tribunal,

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

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

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

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

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

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

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

Crimes (Administration of Sentences) Act 1999 (NSW)

1. Section 257 provides:

257 Disclosure of information

(1) A person must not disclose any information obtained, or to which the person otherwise has or had access, in connection with the administration or execution of this Act unless that disclosure is made -

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

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

(b1) in connection with the administration or execution of a law of some other State or Territory in its application to an inmate who has been, or is to be, transferred to that State or Territory pursuant to -

(i) a direction referred to in section 45, or

(ii) a warrant referred to in section 49, or

(iii) an order of transfer under the Prisoners (Interstate Transfer) Act 1982, or

(c) for the purposes of any legal proceedings, or

(d) in accordance with a requirement of the Ombudsman Act 1974 or with any request made by the Ombudsman, or

(d1) to the Commissioner of Fines Administration in connection with the administration or execution of the Fines Act 1996 (including for the purpose of the imposition, administration or enforcement of a fine), or

(e) with other lawful excuse.

Maximum penalty - 100 penalty units or imprisonment for 2 years, or both.

(2) Information may be disclosed as referred to in subsection (1) (b1) despite anything to the contrary in the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002.

(3) Without limiting the disclosures that may fall within subsection (1) (e), a person makes a disclosure with lawful excuse for the purposes of that paragraph if the disclosure is -

(a) authorised by the Commissioner, or

(b) in accordance with an official policy made by the Commissioner for the purposes of this section.

(4) Subsection (3) applies to a disclosure made by a member of the Parole Authority or the Review Council, as if a reference to the Commissioner were a reference to the Chairperson of the Authority or the Chairperson of the Review Council (as applicable).

1. The legal principles are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act. The relevant time for determination of the correct and preferable decision is the time that the decision is made: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
2. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
3. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure, but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
4. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) to (d) operate to promote disclosure of information (the object of the GIPA Act) notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act.
5. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. In this matter, the onus is on the applicant "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

Public interest considerations in favour of disclosure

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

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

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

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

1. The applicant relied upon the general presumption in favour of the release of government information and the examples in s 12(2) of the GIPA Act, as well as an argument that the issue of legal access to prisoners is a matter of public interest, and that in 2022, the Court of Appeal held that the power to refuse permission to an inmate's legal practitioner to visit for any reason is not sustained by the regulation making power under cl 94 of the CAS Regulation 2014. Therefore, the ban on allowing inmates access to their chosen legal representative was unlawful: Hamzy V Commissioner of Corrective Services NSW [2022] NSWCA 16.
2. The applicant also argued that his personal factors of the application weigh in favour of disclosure of the disputed information, namely he is subject to the MEAA Code of Ethics and is obliged to verify sources and to report accurately and fairly. The GIPA Act has an obvious role to assist in that endeavour. He also works for a reputable masthead of record, which establishes that information obtained would be the subject of responsible reporting under editorial supervision.
3. I agree with the public interest considerations in favour of disclosure that the parties have identified and I am satisfied that these matters should be given significant weight.

Public interest considerations against disclosure

1. The respondent relies upon cll 3(a), 3(b), 4(d) and 6 of the table to s 14(2) of the GIPA Act.

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

Clause 3(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998...

1. The respondent argues that disclosure of the disputed information could reasonably be expected to reveal Ms Nasser's personal information and that it would contravene an information protection principle under the PPIPA.
2. The applicant argues that cl 3(a) does not apply to the disputed information on the basis that the information regarding the visitor ban that was imposed upon her in 2007 is already available in a publicly available publication.
3. The available evidence is that in 2007, the applicant was the co-author of an article which reported that Ms Nasser was prohibited from visiting NSW Correctional Centres and that the reason for the ban was the "redirection of inmate's telephone calls."
4. Having reviewed the unredacted CSNSW Memorandum in the confidential hearing, I am satisfied that it contains personal information about Ms Nasser that is not available in a publicly available publication.
5. Having also reviewed the unredacted OIMS Entry in the confidential hearing, I am satisfied that this also contains personal information about Ms Nasser that is not available in a publicly available publication. Therefore, I am satisfied that cl 3(b) of the table to s 14(2) of the GIPA Act applies to the disputed information.
6. I am satisfied that cll 3(a) and 3(b) should be given significant weight.

Section 257 of the CAS Act and cl 6 to the table to s 14(2) of the GIPA Act

1. There is no evidence before me as to how the information that was reported in 2007, came to become available in a publicly available publication at that time.
2. Mr Bell argued to the effect that it must have been released by CSNSW, as in cross-examination Ms Goldie stated that when the OIC releases information publicly, it is released under s 257 of the CAS Act.
3. However, I take notice of the fact that s 257 of the CAS Act did not exist in 2007 and I reject the proposition that the information relating to the Commissioner's decision in 2007 was publicly released by his office under the terms of a provision that had not yet been enacted.
4. [NOT FOR PUBLICATION]
5. I consider it likely that the applicant is the only party to these proceedings who would likely know the source of the information that he reported in 2007 and his evidence does not address this matter.
6. In any event, in Thomson, the Tribunal held that the words "publicly disclosed" requires there to have been a prior disclosure of information to the general public and there is no evidence of disclosure to the general public by CSNSW.
7. I am satisfied that these public interest considerations should be given some weight, noting that they are subject to the provisions of s 11 of the GIPA Act.

Clause 4(d) - disclosure of the information could reasonably be expected to have one or more of the following effects - prejudice any person's legitimate business, commercial, professional or financial interests,

1. I accept the respondent's submission that release of the disputed information could (disregarding the operation of the GIPA Act) reasonably be expected to prejudice Ms Nassers legitimate business, commercial, professional or financial interests.
2. In my view, the respondent has established that the nature of the relevant interests is "business, commercial, professional or financial" and that the identified harm amounts to prejudice (i.e. "detriment or disadvantage"). I am also satisfied that there is a real risk that this prejudice would occur and that the interests that would likely be prejudiced are legitimate, i.e. lawful, proper, recognised and accepted.
3. In my view, the respondent has correctly identified the relevant case law regarding the application of cl 4(d), as:

(1) Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18, at [140]. The Tribunal held that the key issue is whether disclosure "could reasonably be expected to prejudice," that is "cause detriment or disadvantage to" the company's legitimate commercial interests.

(2) DDL v Mid-Western Regional Council [2018] NSWCATAD 2 at [60], where the Tribunal accepted that adverse impacts upon a person's professional reputation which could disadvantage their future employment prospects come within "professional and financial interests".

(3) In Kang, the Tribunal withheld information from the applicant to protect the signatories of a sensitive document on the basis that disclosure could prejudice the legitimate professional interests of the individual signatories.

(4) In Pemberton, the Tribunal held that disclosure of information could prejudice a person's legitimate professional interests as it likely prejudice their professional and personal reputations, and adversely affect their financial positions and capacity to obtain future employment.

(5) In Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6, the tribunal held tat the public interest against disclosure in cl 4(d) is more broadly framed than that in cl 4(c). The important feature of the clause is whether a disclosure of the information could reasonably be expected to prejudice those interests.

1. Based on the evidence received during the confidential hearing, I accept the respondent's submission that disclosure of the disputed information could reasonably be expected to prejudice Ms Nasser's legitimate business, commercial, professional or financial interests. The relevant records contain sensitive information relating to her conduct as a solicitor that resulted in the ban. The disputed information relates directly to her interactions with CSNSW staff in her professional capacity.
2. [NOT FOR PUBLICATION]
3. I am satisfied that the term "legitimate" in cl 4(d) refers to the interests that ay be prejudiced and not to the facts or acts detailed in the disputed information. It is also important to note that as the file relating to Ms Nasser has been destroyed, it is not possible to consider the veracity or strength of the evidence or reasons before the Commissioner when he made the decision in 2007. In other words, the veracity of the findings that were made against Ms Nasser in 2007 cannot now be tested.
4. I accept the respondent's submissions that the Tribunal's decisions in Bannister and Dennis apply to this matter and, applying those decisions to this matter, I am satisfied that disclosure of the disputed information could reasonably be expected to cause reputational harm that may adversely affect Ms Nasser's employment prospects and professional standing.
5. In my view, this consideration should be given substantial weight.

1. The confidential evidence received during the confidential hearing corroborates Ms Goldie's evidence with respect to the searches that were conducted to locate information responsive to the GIPA request and the information that was provided to her regarding procedures that were in place in 2007 (before the commencement of the CAS Act). Based on this evidence, I reject the applicant's submission that s Goldie's evidence on these matters amounts to "mere hearsay."
2. I am satisfied on the evidence before me that the respondent conducted reasonable searches to locate government information that is responsive to the GIPA request. Those searches produced the OIMS Entry and the CSNSW Memorandum as well as a certificate confirming the destruction of the file relating to Ms Nasser in August 2016.
3. In the light of the certificate of destruction, I reject the applicant's submissions to the effect that the respondent's searches were superficial and that a search of the State Archive Facility should have been conducted.
4. In my view, the respondent is entitled to rely upon the certificate of destruction and the decision to not conduct a physical search of the State Archive Facility does not undermine the reasonableness of the searches that it conducted.
5. It follows that I am satisfied that the respondent does not hold any additional government information within the scope of the GIPA request.

1. Section 54(1) requires an agency to take such steps as are reasonably practicable to consult with a person before providing access to information relating to that person if it appears that: (a) the information is of a kind that requires consultation, and (b) the person may reasonably be expected to have concerns about the disclosure of the information and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
2. The applicant made extensive submissions to the effect that the respondent failed to consult with Ms Nasser about the GIPA request and Mr Bell argued that the respondent should have, at the very least conducted an ASIC search with a view to obtaining contact information for her.
3. I note that during these proceedings, the respondent wrote to the applicant asking whether he held any contact information for Ms Nasser, but his legal representatives replied that he declined to answer that question.
4. The applicant has not referred the Tribunal to any legal authority that supports a proposition that an agency must undertake external enquiries to ascertain contact information for a person who is the subject of a GIPA request.
5. In the circumstances of this matter, where the events in question occurred in 2007 and the hard copy file was destroyed in 2016, I am not satisfied that there is a positive obligation on an agency to undertake enquiries of the type asserted by the applicant in order to undertake consultation with a third party. I reject that submission.
6. I am satisfied that the disputed information satisfies ss 54 (2)(a) and 2(b) of the GIPA Act, which would have required the respondent to consult with Ms Nasser prior to disclosure of the information. I am satisfied that these considerations apply even where it was not reasonably practicable for the agency to consult with Ms Nasser. Further, in my view, the disputed information is such that if it had been reasonably practicable to consult with Ms Nasser, she may reasonably have been expected to have concerns about its disclosure, noting that she is a qualified solicitor who has been reported in the media as being a Company Director and Shareholder.
7. I accept the respondent's argument that to give these factors little or no weight would mean that the individual would lose the protection of s 54, simply because it was not practicable to consult with them.

1. I have applied the public interest test in the manner set out in Flack and Hurst, by starting with the presumption in favour of disclosure of information and: (1) identifying the public interest in favour of disclosure (s 12); (2) identifying the public interest against disclosure with reference to the items listed in the table in s 14(2) of the GIPA Act; and (3) determining whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
2. As previously indicated, I am satisfied that the public interest considerations in favour of should be given substantial weight.
3. However, I am satisfied that the public interest considerations against disclosure should be afforded significant weight (in the case of cll 3(a), 3(b) and 4(d) and some weight (in the case of cl 6).

1. I am satisfied that the correct and preferable decision is to affirm the decision under review.

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

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.

26 February 2026 - Application for Miscellaneous matters considered and refused.

03 March 2026 - Paragraph's 150 and 158 restricted pending determination of appeal.