Norkin v University of New England

NCAT Administrative and Equal Opportunity|2021-04-09

REASONS FOR DECISION

The applicant, Mr Anton Norkin, received a decision made by the respondent the University of New England (UNE), under the Government Information (Public Access) Act 2009 (GIPA Act) on 11 February 2020. His application, dated 30 January 2020 ("the 2020 application"), had sought: "the name (business or personal) of the contractor of the UNE who conducted GTE assessment and is in possession of my personal data (sponsorship letter) supplied to the agency (the UNE) as a part enrolment process of Alexey Norkin as a student."
In its decision of 11 February 2020 ("the 2020 decision") UNE refused to deal with his application on the basis that: 1. Mr Norkin had already made an application for substantially the same information on 20 August 2018 ('the 2018 application") and the circumstances had not changed (s 60(1)(b) of GIPAA); and 2. Mr Norkin had proceedings against the UNE on foot in this Tribunal and was able to apply to the Tribunal for the same information in those proceedings (s 60(1)(e).
Mr Norkin sought review of the 2020 decision by the Information Commissioner, who found on 12 May 2020 that the UNE decision was not justified and that it should make a new decision.
On 30 June 2020 the UNE made a new decision by way of internal review.
That decision stated: "As the circumstances that led UNE to refuse to deal with your 2018 application under s 60(1)(e) have not changed I have considered whether there are reasonable grounds for UNE to make a different decision in relation to this application and I have concluded that there are none. … I have formed the view that refusing to deal with this application under s 60(1)(b) is the proper action for UNE to take in the context of this application. … I have decided that it is appropriate for me to exercise my discretion to refuse to deal with your application in accordance with s 60(1)(b) of the GIPA Act."
The applicant has now sought review of that decision in this Tribunal.

Relevant legislation

Section 5 of the GIPA Act provides: "5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
Section 59 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."
Section 60 provides: "60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) - (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note - See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order, (e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is - (i) a party to current proceedings before a court, and (ii) able to apply to that court for the information. … (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application. Clause 1 of Schedule 4 to the GIPAA provides that "court" includes a tribunal.
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."
The Act provides for review of certain decisions. Section 80(c) provides that a decision to refuse to deal with an access application is a reviewable decision. Section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) provides: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 65 of the ADR Act provides: "65 Power to remit matters to administrator for further consideration (1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator. (2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a new decision in substitution for the decision set aside. (3) If the administrator varies the decision: (a) the application is taken to be an application for review of the decision as varied, and (b) the person who made the application may either: (i) proceed with the application for review of the decision as varied, or (ii) withdraw the application. (4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside: (a) the application is taken to be an application for review of the new decision, and (b) the person who made the application may either: (i) proceed with the application for review of the new decision, or (ii) withdraw the application."

The 20 August 2018 application and the Tribunal proceedings

The 2018 application was not in evidence. According to later correspondence between the parties which was on the file, the application requested: "…any documents relating to engagement of contractor who conducts International Student (Genuine Temporary Entrant) Assessment, including contract of services or other similar document and any other legal arrangement such as binding on them policy or directions of the UNE in regards to protection of private information of the prospective students provided to this contractor by the UNE."
From the available information I infer that this application was refused by the University under s 60(1)(e) on the basis that Mr Norkin had commenced proceedings against the University in this Tribunal under the Privacy and Personal Information Protection Act 1998 ("the Privacy proceedings") and that he was able to apply to the Tribunal for the same information as part of those proceedings.
From the submissions of the parties it is apparent that the Privacy proceedings were commenced on 29 November 2018 by the applicant and another person and a decision in those Tribunal proceedings was delivered on 11 September 2020. Because of the non-publication orders as to the applicants' names made by the Tribunal in those proceedings, I will not name the case. The case concerned a complaint that the respondent had breached the Information Privacy Principles in collecting the personal information of the two applicants. The Tribunal member hearing the case found that there had been no contravention of the Information Privacy Principles and determined to take no action on the matter. The respondent states that the matter went on appeal and the hearing date for the appeal was 22 January 2021.
Section 60(1)(e) of the GIPA Act is in issue in these proceedings. That subsection commenced on 28 November 2018 following amendment of the GIPA Act by the Government Information (Public Access) Amendment Act 2018.

History of these proceedings

Directions were made on 3 September 2020 for the filing and service of evidence, and other material. The Tribunal also made a direction dispensing with the need for a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013.
The matter was to be determined on the papers after 29 October 2020. Those orders were amended on 20 October 2020, and further amended on 11 December 2020 to allow the respondent to file submissions in response to the submissions from the Information Commissioner by 24 December 2020. The respondent sought and received an extension and filed its submissions on 8 January 2021.

Submissions of the parties

The applicant wrote on 28 October that he relied on his original submissions, which I understand to refer to his email of 12 April 2019 and other material attached to his application, which is the only other material filed by him.
He submitted that no subpoena or other order had been made in the other proceedings and no request to provide access to him to the information sought. The decision to refuse to deal with the application was discretionary in nature and other factors might be considered, for example delay in the proceedings. The discretionary power was exercised inappropriately and the decision was therefore void. The Information Commissioner found that the respondent's decision was not justified
The Information Commissioner submitted that s 60(1) provides the decision maker with a discretionary power and the respondent must establish the circumstances on which it seeks to rely under s 60(1) (Feeney v Secretary, Department of Communities and Justice [2020] NSWCATAD 269). The relevant question is whether the applicant has been provided with access to the information through other processes (Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 at [31]) and whether the decision maker has the relevant reasonable belief.
The Information Commissioner also submitted that it may be open to the Tribunal to find that at the time of making the application in August 2018, the applicant had a legally enforceable right to be provided with access to the information in question (subject to any overriding public interest consideration against disclosure). The fact that s 60(1)(e) was not inserted into the GIPA Act until November 2018 may mean that it was not available to the respondent when making its decision on the August 2018 application. The Information Commissioner did not expand upon this submission.
In relation to s 60(1)(e) the Information Commissioner submitted that the Tribunal should consider whether, at the time of considering the application, there are current proceedings and whether the applicant is a party; also whether the information could be applied for by the applicant in those proceedings. The factors identified by the Tribunal in Feeney at [78] should be considered. The discretion is a powerful one and does not displace the presumption in favour of disclosure or limit the statutory right to access information.
The respondent filed submissions on 12 November 2020 and further submissions in reply.
The respondent submitted that as at the date of its submissions in reply, the Applicant was (a) a party to current proceedings before a court; and (b) able to apply to that court for the information. Therefore the Tribunal may have regard to section 60(1)(e) of the GIPA Act.
The Tribunal should apply s 60(1)(e) which was in force at the time of the respondent's 2020 decision and is in force as at the time of making its decision.
The amendment to the GIPA Act by the inclusion of section 60(1)(e) did not affect or vary in any material way the enforceable right of an access applicant to access information under section 9 of the GIPA Act. The amendment merely expressly authorised a decision maker to take into account the fact that if an applicant had separate proceedings on foot as at the time of the decision being made, and could apply to the court (in those separate proceedings) for the information, then the decision maker had a discretion to refuse to deal with the access application on that basis.
Section 60(1)(e) should be interpreted to require an applicant to be able to apply for the information in other proceedings, not to have any prospects of actually obtaining the information. The applicant could have applied for the information in the Privacy proceedings for example by way of a summons under s 48(1)(a) of the Civil and Administrative Tribunal Act 2013.
Generally, the respondent agreed with the IPC's summation of the principles in Commissioner of Police v Danis [2017] NSWCATAP 7 and Feeney in relation to the operation of section 60(1) of the GIPA Act.
The respondent is entitled to rely on s 60(1)(b) and (e) now, and the respondent's decision should be affirmed.

The issue to be determined

The issue is what is the correct and preferable decision on the application determined in the 2020 decision. I am to make this determination having regard to the material before me currently (s 63(1) Administrative Decisions Review Act 1998). In my view I am not required to consider what the applicant's rights were at the time he lodged his 2018 application or whether the UNE should have applied s 60(1)(e) to that decision.
A comparison of the 2018 and the 2020 applications show that while the 2018 application sought any documents relating to the engagement of the contractor who conducts the International Student (Genuine Temporary Entrant) Assessment by the UNE, the 2020 application only sought the name of that contractor.
In applying s 60(1)(b) to the 2020 request, the UNE had to consider if it had already decided a previous application from Mr Norkin for the same information (or information that is substantially the same) and whether there were any reasonable grounds for believing that it would make a different decision.
In Danis the Tribunal's Appeal Panel considered the approach to be taken when reviewing a s 60 decision and observed at paragraph [43] - [45]: "43. Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d))…Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)). 44. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants."
In that case the Appeal Panel also noted that the objects of the GIPAA include at s 3(2)(b): "It is the intention of Parliament: … (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."
The respondent has not raised resources or wasted effort as an issue in responding to the application. The request is for a name only. In Danis the Appeal Panel also said at [49]: "In our view, the Tribunal when reviewing decision to invoke a s 60(1) should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources…This is not intended to be an exhaustive statement of the matters to be taken into account in any particular case."
It is important to remember that s 60(1) is a discretionary provision as noted in Feeney and at [72-3] and [78] in that case it was said: "In determining whether to exercise the discretion to refuse to deal with an access application, and deciding the matter on an individual (or case-by-case basis) as agreed by the parties, the decision maker is required to consider all relevant factors to the matter. If the Parliament had intended for resourcing issues to trump other factors (and that there was an available court process instead for the information), then I believe that the provisions would not have contained the discretion. In such a situation the GIPA Act would have provided that the application is refused merely because there is an alternate method of accessing the information. Whilst the GIPA Act does not currently include such provisions, as only invalid applications, and material that falls within Schedule 1 and Schedule 2 is automatically excluded, it seems clear that from an analysis of the words of the section, and the reading speech and statutory review, that the decision maker is to consider all relevant and present factors in deciding whether to deal with the matter. … If a matter is to be considered on a case by case basis, as the parties tend to agree, then in my view a matter under s 60 (1) (e) would in all likelihood raise the following issues: • A consideration of the resource implications involved for complying with the access application. • Is the information of a type that is likely to have a claim for privilege or some other legal basis for withholding production under a subpoena. • Is there a clear legitimate forensic purpose when the nature of the information is considered in the context of what is known about the court proceedings and is the material likely to be available to an applicant. • Is the matter a civil matter or a criminal matter, and is it a matter where the applying party bears no particular onus or requirement to disclose matters to the court (such as defendant in criminal proceedings). • What is the likely financial cost to both the applicant and the agency in responding to a GIPA application contrasted with a subpoena process via the court taking into account what is know from the factors above."
It is also important to recall that the onus of justifying the decision falls on the respondent under s 105 of the GIPA Act.
It is not disputed that substantially the same information was sought in the 2018 and 2020 applications and it is reasonable to assume that the 2018 application for information relating to the engagement of a contractor would include the name of the contractor, as specified in the 2020 application. The UNE refused to deal with the 2018 application, however, under s 60(1)(e) in reliance on the proceedings commenced in the Tribunal in November of that year. Those proceedings have concluded. As noted above, they are on appeal. The respondent states that the hearing was scheduled for 22 January 2021.
As noted above, this is not claimed to be a case where there would be an onerous drain on the respondent's resources. There is no relevant evidence on that point.
Is it reasonable to believe Mr Norkin is able to apply to the Tribunal for the information in question? There is no evidence from which I can draw a conclusion on this point. It may not be a straightforward matter to have a summons issued by the Registrar in an appeal where the matter has been heard and the decision reserved. A summons generally requires legitimate forensic purpose. There is no evidence as to whether there are other restrictions which may apply to the information. A party can usually gain access to the Tribunal file but there is no evidence that the information is on the file. Any process would require additional effort and perhaps cost for Mr Norkin, who is not legally represented. In my view the respondent has not met the onus of establishing that it is reasonable to believe that he would be able to apply for the information in those proceedings.
Even if I am wrong in that respect, there is a remaining issue as to whether there are no reasonable grounds for believing that the agency would make a different decision on the application currently. In my view there are reasonable grounds for deciding the matter differently. This is because the power to refuse to deal with an application under s 60(1)(e) is discretionary. I do not think it is consistent with the purposes of the GIPA Act (particularly s 3(2)(b)) to employ the discretion in s 60(1)(e) to impose a burden on a court or tribunal's processes in other proceedings where: 1. the process to be used (such as a summons) is not sought for the purpose of those proceedings, but for another purpose; and 2. there is no evidence that providing the information to the applicant would be a burden upon the respondent or a wasteful use of its resources.
I conclude that the discretion should be exercised in the favour of the applicant and the respondent should not refuse to deal with the application on the stated ground.
I note that the information sought is the name of a third party. There is no evidence that any consultation has taken place under s 54 of the GIPA Act with any person with regard to any information. I have therefore determined that rather than make a decision in substitution, the matter should be remitted to the respondent under s 65(1) of the ADR Act in such a way that a new decision can be reviewed by the Tribunal if need be. Section 65(2) will apply to any new or varied decision made.

Order 1. The decision under review is remitted pursuant to s 65(1) of the Administrative Decisions Review Act 1997 to the respondent for reconsideration of its refusal to deal with the application and consultation with any person pursuant to s 54 of the Government Information (Public Access) Act 2009. 2. By close of business on 7 May 2021 the respondent is to inform the applicant of the outcome of the reconsideration. 3. By close of business on 21 May 2021 the applicant is to inform the respondent and the Tribunal whether he wishes to continue with the review of the new or varied decision; or withdraw his application for review. 4. The matter is listed for a case conference on 2 June at 9.30 am. 5. If the applicant withdraws his application, the Tribunal will dismiss the proceedings and vacate the case conference listing. 6. Submissions by either party on whether the Tribunal may dispense with a hearing and dismiss the proceedings on the papers should be filed (if the applicant withdraws his application) by 28 May 2021.

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. Registrar 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: 09 April 2021

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Judgment (8 paragraphs)

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Legislation Cited (3)

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