O'Brien v Secretary, Department Communities and Justice [2022] NSWCATAD 100 | Case summary

O'Brien v Secretary, Department Communities and Justice [2022] NSWCATAD 100 | Case summary | Zoe

As noted above Ms O'Brien is a consumer / tenant of Social Housing and the last scope item relates to her own case where the rental contribution was ultimately calculated following determination of the Private Rental Subsidy.
DCJ made an initial decision on 29 April 2019 in respect of Ms O'Brien's access application. They provided 221 folios of information in respect of 10 of the 14 areas of information that the Department held. Some information in these 10 areas had been withheld in part for privacy reasons with DCJ relying on Cl 3(a) of the Table to s 14 of the GIPA Act as a public interest consideration against disclosure of that information. In respect of the other four areas where they said that they did not hold any information, DCJ advised that such information was in fact held by Northgate Public Services (Northgate) who were engaged by DCJ to develop software to specifically manage the Private Rental Subsidies within the Department's 'HOMES' database.
Three of the four items of information held by Northgate were described by DCJ in their decision as Northgate's 'intellectual property'. In respect of one of the four items related to Northgate DCJ was advised that no information was currently held.
Following the DCJ decision Ms O'Brien applied to the Information Commissioner for External Review under s 89 of the GIPA Act.
In their decision the Information Commissioner concluded that the initial decision of DCJ was not justified and recommended that they make a new decision. The Information Commissioner was dealing with two aspects of the DCJ decision in their review: (a) the decision to withhold some information on privacy / personal information grounds (cl 3 (a) Table to s 14 of the GIPA Act) because there was an overriding public interest against disclosure, and (b), that information was not held. It was on the latter issue, the decision that information was not held by the DCJ, that the Information Commissioner determined that the decision was not justified and recommended that a new decision be made on this aspect of the application.
The 'information not held' issue was slightly nuanced in that the information was identified by DCJ, but determined by them to be external to DCJ and therefore not held by the Department. The Information Commissioner in their review noted that the information had been identified by DCJ and therefore found that the information exists. However, departing from the reasoning of DCJ the Information Commissioner determined that the information was held by DCJ because it was used by DCJ.
The Information Commissioner released their review report to Ms O'Brien and DCJ on 20 June 2019. Ms O'Brien applied for administrative review to the Tribunal on 18 July 2019 just within the time period provided by the GIPA Act following a review by the Information Commissioner.

[3]

History of proceedings before the Tribunal

Having regard to the guiding principle of the Tribunal, (s 36) I believe it is necessary to briefly set out the somewhat protracted history of this matter before the Tribunal. The matter has taken a significant amount of time in both the pre-hearing and post-hearing processes. The hearing (once determined to proceed in that manner) was significantly delayed by the impacts of the Covid -19 pandemic on both the Tribunal's processes and Ms O'Brien's ability to access resources and properly prepare and run her case.
The matter was initially remitted by the Tribunal in August 2019 (by consent) for DCJ to make a fresh decision following the Information Commissioner's review recommendation. When the fresh decision was made the matter became protracted in trying to identify the specific source code and parameters of the 'test suites' and algorithm which created the private rental scores which were central to Ms O'Brien's information request. Liaison between DCJ and Northgate was necessary. Section 121 of the GIPA Act was identified during the Case Conference process as being central to the issue as to whether the information was held by DCJ (or held by a third party). After two further Case Conferences could not resolve this issue by agreement the Tribunal referred the matter to mediation on the understanding that 'without prejudice' discussions could extrapolate the issues more appropriately so that Ms O'Brien could explain in detail the background and information which she was really seeking. In understand the real position of Ms O'Brien I understand this to relate to how were the results for the private rental amounts arrived at, and whether the process was robust and would stand up to external scrutiny / analysis.
The mediation occurred over two full days during December 2019 and February 2020. Whilst it appears that there was a significant effort and energy invested in resolving the matter at mediation, ultimately mediation was unsuccessful.
The matter came back for a further Case Conference in early April 2020 to determine how the matter would be finalised by the Tribunal at hearing. By this time the Novel Corona Virus had been listed as a pandemic (noted as Covid -19) and the President of the Tribunal, consistent with Public Health Orders and the other heads of Court jurisdictions, had issued rules around how proceedings were to be conducted before the Tribunal including no 'in person' hearings unless approved by the President subject to legislative restrictions in place at the time.
Because of Ms O'Brien's health issues as specified to the Tribunal, she sought and was granted an in person hearing, however such hearing would not take place until the President authorised the listing, and the legislative restrictions surrounding the pandemic allowed the matter to proceed. A number of procedural 'in chambers' events occurred over the ensuing 10 months with timetabling orders made in Chambers and actual listings deferred over those months due to the uncertainty of the impacts of the pandemic. Central to these arrangements was Ms O'Brien's need to appear at all listings in person. Ms O'Brien's matter was eventually set down for hearing in person on 30 March 2021.

[4]

Jurisdiction

The decision under review is a reviewable decision in accordance with s 80 (e) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act. The Tribunal notes that the application for review has been received within time. In addition the matter was remitted to DCJ under the Administrative Decisions Review Act 1997 (the ADR Act) for a new decision following the Information Commissioner's review. The remitted decision becomes the decision under review
There is no dispute that the decision is an administratively reviewable decision to the Tribunal under the GIPA Act. Section 80 provides: 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 - (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (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, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object). (Emphasis added)
In the current matter the decision under review falls with s 80(e) as the DCJ argues that they do not hold the information. The residual issues around personal information of third parties fell away during the pre-hearing process.

[5]

What the GIPA Act provides in respect of Government Information

The GIPA Act provides for the proactive release of government information, informal release of government information, as well as the formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.
These principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10] 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
The GIPA Act has an objects provision at s 3, which includes a reference at s 3 (2) (a) that the legislation be applied so as to further those objects. 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

[7]

The hearing

The matter was heard on 30 March 2021. As Ms O'Brien was not legally represented the practice and procedure of the Tribunal was explained and the broad provisions of the GIPA Act were outlined in the hearing. (s 38 (5) Civil and Administrative Tribunal Act 2013 'the NCAT Act'). This process was also carried out during the lengthy pre-hearing and post-hearing steps of this matter.
It was also explained to Ms O'Brien on numerous occasions that under the GIPA Act that the onus rested with the DCJ to establish that the provisions of the GIPA Act had been appropriately applied in determining the matter. This was particularly so in trying to limit the lengthy post-hearing submission process (which both parties sought to engage in at the conclusion of the formal hearing). This process was impacted by the further Covid -19 restrictions imposed in NSW from Mid 2021 onwards. The Tribunal, consistent with the guiding principle, sought to explain this onus to Ms O'Brien so that her responses. if any. could be brief and appropriately tailored noting her difficulties with obtaining legal and other assistance during Public Health Order restrictions such as lockdowns. A further brief hearing was arranged and occurred on 12 November 2021 to finalise all orders and a timetable for concluding the proceedings. Part of this was to prevent the matter becoming further protracted by the parties consenting to multiple timetable variations as had occurred in earlier months.
The Information Commissioner's representative appeared and was heard at the hearing consistent with the provisions of s 104 (1) of the GIPA Act. 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. This was particularly important as these proceedings related to a decision which had been externally reviewed by the Information Commissioner, who had reached a different position to DCJ in respect of the argument that they did not hold the information.

[11]

Other material and the remitted decision

Other material was filed and served by the parties arising from the numerous Chambers directions given in the proceedings.
In the remitted decision of 27 September 2019 (the decision under review) the following items from Ms O'Brien's scope of material were considered not held by DCJ: • The algorithm for the subsidy calculation pertaining to Private Rental Subsidy. • The software specification given to the implementation of the subsidy calculation pertaining to Private Rental Subsidy. • The source code in use for the implementation of the subsidy calculation pertaining to Private Rental Subsidy. • The test suites employed for the implementation for the subsidy calculator pertaining to Private Rental Subsidy.
DCJ determined that the algorithm for the subsidy calculation and the source code used for the implementation of the subsidy calculation were not held by them because the provisions of s 121 of the GIPA Act applied. Section 121 provides: 121 Provision of information by private sector contractors (1) An agency that enters into a contract (a government contract) with a private sector entity (the contractor) under which the contractor is to provide services to the public on behalf of the agency must ensure that the contract provides for the agency to have an immediate right of access to the following information contained in records held by the contractor - (a) information that relates directly to the performance of the services by the contractor, (b) information collected by the contractor from members of the public to whom it provides, or offers to provide, the services, (c) information received by the contractor from the agency to enable it to provide the services. Note - A reference in this Act to government information held by an agency includes information held by a private sector entity to which the agency has an immediate right of access. See clause 12 of Schedule 4. This means that an access application can be made to the agency for that information. (2) A government contract is not required to provide for the agency to have an immediate right of access to any of the following information - (a) information that discloses or would tend to disclose the contractor's financing arrangements, financial modelling, cost structure or profit margins, (b) information that the contractor is prohibited from disclosing to the agency by provision made by or under any Act (of this or another State or of the Commonwealth), (c) information that, if disclosed to the agency, could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency, whether at present or in the future. Note - The contractor may be entitled to be consulted by the agency under section 54 (Consultation on public interest considerations) in relation to an access application made to the agency for information held by the contractor.
Relying on s 121 of the GIPA Act, DCJ determined in their decision that the contract entered into between DCJ and Northgate did not provide for any provision of services by Northgate to the public. Specifically DCJ used the term in their decision that, 'The service is not provided directly to the public'. In addition DCJ determined that even if s 121 (1) applied, s 121 (2) applied in the nature of intellectual property the disclosure of which would place Northgate at a commercial disadvantage. Specifically s 121 (2) (c ) being: (c) information that, if disclosed to the agency, could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency, whether at present or in the future.
Additional attempts to locate the software development information through identifying DCJ's business requirements and Northgate's translation of those requirements into a software project were also unsuccessful. Northgate advised that they searched their database system and were unable to locate the original Private Rental Subsidy / business requirements from the Department (DCJ).

[12]

Ms O'Brien

Ms O'Brien maintained a number of points in relation to her application that in my view were beyond the scope of the GIPA Act. As explained in some detail during the two on record listings of the matter, the GIPA Act is a means for individuals or entities to obtain access to government information. Usually that access constitutes the release of documents from the agency to the applicant. In the current example Ms O'Brien was seeking to decode and therefore understand the system and process from which the rental subsidy was calculated. Ms O'Brien had tailored her request to the terms set out at [8] above, due to her preliminary inquiries and approaches via her local Member of Parliament, the Office of the relevant Minister and relevant senior people within the Department. These attempts and the subsequent responses had caused Ms O'Brien to craft the GIPA request which was both broad and also specific in terms of the data sets and program used to apply the data inputs to achieve the rent amount result.
As was explained during the hearing processes, the GIPA Act achieves a result by clarifying the scope of the request, searching for and collating information, and then determining whether any of that information falls within either Schedule 1 or 2 of the GIPA Act, or whether the public interest considerations against disclosure (as set out in s 14) are enlivened. If so a balancing exercise is undertaken with the result being that all, some, or no information is released.
Because Ms O'Brien was significantly invested in the process (being a consumer with knowledge obtained both in that role and from her preliminary inquiries), it became apparent once the matter was before the Tribunal that she was directing the Department in respect of identifying and locating the information. In this regard the DCJ was requested at early Case Conferences to go back to the housing officers responsible for creating the data program or the parameters that were scoped to Northgate.
These problems were also compounded to some extent by DCJ being the current form of the Public Sector Agency which encompasses the previous iterations of the department once referred to as the Department of Housing or Housing NSW. Housing was absorbed into a Communities cluster since the creation of departmental clusters, and most recently Communities and Justice were joined into the DCJ. The GIPA response by DCJ was out of necessity driven by the 'justice arm' of DCJ but was seeking historical information held by the 'communities arm' and prior to that Housing NSW.
The passage of time and the technical nature of the information and process were ultimately addressed by the affidavits of McCune and Li.
I observe that Ms O'Brien's written submissions identify a lack of insight into the limitations of the GIPA Act, in that as a mechanism for obtaining Government information, it does not guarantee the information or establish what a Government process entails in every case. It is in fact a 'data dump' usually by way of documents responsive to the request. It does not seek to explain or otherwise justify the content or meaning or completeness of Government information.
The following submissions from Ms O'Brien illustrate this misunderstanding about the GIPA outcomes. When talking about the rental subsidy calculation Ms O'Brien submitted that: 'This isn't rare information. This is something they do every day. They rely on a system, yet they seem to not be able to say how the system works.' .. 'They rely on a calculator they can't justify'. .. ' They have said that they have found the staff member who knows directly how the calculation is done and they still say they don't hold the information.'
Ms O'Brien also believed that information was held by DCJ and that as a result it was being deliberately withheld from her by DCJ. Some of this belief may have arisen from DCJ attempting to provide Ms O'Brien with information and answers to her initial inquiries about the rental subsidy system prior to the GIPA request. In addition during the 2020 and 2021 period DCJ having identified further individual staff or contractors involved in the process, sought to obtain information directly from them to provide Ms O'Brien as a way of attempting to resolve the matter whilst it was before the Tribunal. Ultimately this approach caused Ms O'Brien to submit that there must also be records of the information provided directly by staff members involved in the original process.
Another submission of Ms O'Brien focused on information she had received while the matter was before the Tribunal. Specifically in respect of benchmark rents, market rents and how the benchmark rent is calculated. Ms O'Brien submitted that: The Respondent states in their Point 22 that there is a 'calculated benchmark rent', but that 'there is no formula documented or held by the Department'. If the calculation has no formula, the calculations must be governed by documented policies and guidelines. Otherwise, it can be open to abuse or error. These policy documents and guidelines have not been provided.
Ms O'Brien had been provided with a number of documents in response to her GIPA Act request including 221 folios which set out:

The Private Rental Assistance policy,
The Private Rental Assistance Policy Supplement,
A process document,
Housing Pathways (reviewing a Private Rental subsidy checklist),
Private Rental Subsidy Review (change of circumstances),
End or cancel a private rental subsidy,
FACS Homes User Guide October 2018 (50 pages),
FACS Factsheets re: Private Rental Subsidy,
Ms O'Brien's own review / change of circumstances application and attached evidence in support, and outcome documents,

[13]

DCJ

The affidavit of S McCune referred to the deponent's long career in the Department of Housing, and transitioning into the Department of Family and Community Services and eventually DCJ. The deponent was involved in the HOMES database for around 10 years as both a Senior Business Analyst and then a Support Manger and currently a Product Manager.
The deponent states that: 8. The private rental subsidy module as created by NPS (Northgate) is a tool utilised within the HOMES system by Housing Services teams to assist them in their decision making processes. 9. As per my response in green text on annexure 1, there is no formula or algorithm that I am aware of that is documented as held by the Department, though such a formula or algorithm may have been created by Northgate Public Services for the purpose of writing the source code when provided with business requirements of the Department. 10. Furthermore with regards to the software application, as per annexure 1, to my knowledge, the software calculates subsidies though a set of business rules programmed in it as well as the current date for benchmark rents. However, there are a number sub-products [sic] and the relevant specification may be difficult to locate. 11. With regard to the software source code and the contractual restriction we are under, it is one of my key responsibilities in my role as Product Manager to understand the contract terms and conditions. This includes specific clauses relating to intellectual property and the contract states the products provided in the solution remain the property of Northgate Public Services (NPS) and that no new material is provided to DCJ as part of this contract. ….
The affidavit of W Li refers to the deponent taking over the task of calculating benchmark rents approximately three years prior in their role as a Senior Analyst.
The deponent states that their understanding of this calculation process is set out in annexures 1 and 2 to their affidavit, annexure 1 being computer code (18 pages landscape) and annexure 2, (a one page procedure table).
The deponent sets out the steps taken in paragraphs 12 - 14 to explain the process related to the data annexed to the affidavit.
DCJ submitted that they had conducted reasonable searches for the information encompassed by Ms O'Brien's access application. DCJ submitted that Ms O'Brien's pressing for the 'algorithm' or 'set of rules' to be followed in calculations in the HOMES system was not information held by the agency (DCJ). DCJ submitted that the information (the calculations) are embedded in the software's 'source code', which is the full set of readable instructions that a programmer writes when developing a computer programme normally in a programming language such as JAVA.
DCJ submitted that this was not information held by the agency because of the definition in sch 4 cl (12) of the GIPA Act. 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to - (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or (c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or (d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister). (2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet). (3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency. (4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency. (Emphasis added)
The DCJ also referred to the obligation to search for information in response to an access application. Referring to s 53 of the GIPA Act the DCJ submitted that the Tribunal should follow the approach of the Administrative decisions Tribunal (ADT) in Camilleri v Commissioner of Police [2012] NSW ADT 5.
Section 53 of the GIPA Act provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake 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. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
DCJ submitted that they did not have an immediate right of access to the source code information as the information was protected by a contractual arrangement. In addition that information (the source code) was not held on DCJ servers. Upon reviewing the initial and current versions of the agreement between the Department (Housing) and Northgate, DCJ submitted that there were no provisions giving DCJ a 'right of access' to that information.
In addition DCJ made a submission that the information does not fall under s 121 of the GIPA Act (see [41] above). DCJ submitted that NPS / Northgate is not a third party contractor engaged to provide services to the public. On the contrary NPS / Northgate was characterised as an entity engaged to develop a software application which has been adopted used, altered changed etc. by DCJ and its staff to fulfil its business functions. DCJ submitted that the service provided by NPS / Northgate is not a service provided directly to the public.
In support of this DCJ referred to the discussion in the case of IW v City of Perth (1997) 191 CLR 1 at 11. 11. The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful; activity', 'the providing or the provider of some accommodation required by the public as messengers, telegraphs, telephones or conveyance', 'the organised system of apparatus, appliances, employees etc. for supplying some accommodation required by the public', 'the supplying or the supplier of water, gas or the like to the public', and 'the duty or work of public servants'. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided by the Town Planning and Development Act 1928 (WA) and cl 40 of the City of Perth Planning Scheme to approve the use of premises for use other than as a shop.
DCJ submitted that whilst the definition of services was broad, the service provision under s 121 needed to be a direct service provision to the public. In the current matter DCJ submitted that no service was provided directly to the Public, but rather that NPS / Northgate created a software program for DCJ to use, adopt and modify that 'base program to provide services to the public'.
In addition DCJ relied on s 121 (2) of s 121. DCJ said as a result s 121 did not mean that DCJ could 'hold' the information. In that regard DCJ made submissions that even if NPS / Northgate was providing a service to the public on behalf of DCJ, release of the information as protected by s 121 (2) (c ) in that the contract did not need to provide for immediate release of the information because: c) information that, if disclosed to the agency, could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency, whether at present or in the future.
DCJ submitted that providing the information as sought would place NPS / Northgate at a substantial commercial disadvantage in relation to the Agency (DCJ).
DCJ also referred to Clause 24 of the Contract which was before the Tribunal. That clause dealt with intellectual property and provided that NPS / Northgate owns all intellectual property rights in respect of 'NPS's materials including in respect of all data created or collated as a result of the performance of the Services and all modification or additions to NPS materials'.
In further submissions DCJ addressed the adequacy of search argument. DCJ submitted that it was under no obligation to obtain information from NPS / Northgate as DCJ does not have an immediate right of access to that information and as a result did not hold that information.
In respect of the algorithm DCJ submitted that this was the intellectual property of NPS / Northgate and protected by cl 24 of the contract between the Department and NPS / Northgate.
In respect of the software specification DCJ submitted that the Department did not provide initial specifications to NPS / Northgate but rather business requirements. These were worked up by NPS / Northgate into the software specification. DCJ submitted that these business requirements 'were translated into a proprietary product and then supplied back to FACS in a Software as a Service Model. However it is likely that PRS (Private Rental Subsidy) was coded in the initial solution and those requirements were part of a much larger configuration and implementation program and have been modified a number of times since then. A search of NPS's knowledge management system returns a number of delta documents for changes to the PRS but not the original PRS requirements.'
In respect of the source code DCJ advised that NPS / Northgate would not release the source code. DCJ believed that NPS relied upon cl 24 of the contract in this regard.
In respect of the 'test suites' employed for the subsidy calculation pertaining to the Private Rental Subsidy DCJ submitted that many of these aspects were outside the scope of the remitted decision. However they advised in final submissions that notwithstanding this point, and DCJ's lack of right to that information, 'enquiries were directed to (NPS) for information in response to … your application. I have been informed that the process for software development is that the Department provides business requirements and NPS translates those requirements into a software development project. I have been advised that NPS arranged for a search of their date base system and were unable to locate the original, Private Rental Subsidy business requirements from the Department.'

[14]

Information Commissioner

The Information Commissioner in final written submission made submissions about the adequacy of each issue. Reference was made to the Appeal Panel case of Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska).
The Information Commissioner noted that since the Appeal Panel decision in Wojciechowska the Tribunal has followed the five step approach as set out in that decision at [44]. 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
The Information Commissioner provided submissions on the meaning of the term 'reasonable searches' under s 53 of the GIPA Act. The information to be searched is limited to information held by the agency when the application is received.
The Information Commissioner noted the decision of the Tribunal in Vafa v Northern Sydney Local Health District [2020] NSWCATAD 44 at [24] - [25] 24. I have considered the matters raised by the applicant and respondent. Based on the available evidence, I am not satisfied that the applicant has established that there are reasonable grounds to believe that the requested information exists and is held by the agency. There is no evidence to suggest that laser treatment occurred. The evidence that he suffered pain after recovering from surgery can be explained as the effects of the earlier surgery. It does not establish that he underwent laser treatment. There is nothing else to suggest that there should be a report following his surgery apart from what has already been provided as part of his medical record. 25. As I am not satisfied that there are reasonable grounds to believe that the information exists and is held by the respondent it is not necessary to consider the adequacy of the searches.
However in respect of the argument as to whether the information was held, the Information Commissioner initially submitted that the Tribunal may wish to consider whether the service provided by DCJ was the provision of private rental subsidies and that the NPS / Northgate algorithm provided an input to the decision making process regarding the calculation which was intrinsic to the provision of this service. The Information Commissioner submitted that if in this manner NPS / Northgate provides a service directly to the public on behalf of the agency (DCJ), in which case DCJ is required under s 121 to ensure that the contract provides for an immediate right of access to the information that relates directly to the performances of services by NPS / Northgate.
In respect of the issue of data being increasingly held in electronic form, the Information Commissioner provided the following submissions: 27. Increasingly, agencies are utilising new technologies and digital platforms to carry out their business, exercise decision making functions and/or in providing services to the public. 28. Consequently, government information is regularly stored in electronic form and often requires a level of manipulation to produce usable information. It is concerning that agencies are increasingly deciding that information, responsive to access applications is not held under s 58 (1) (b) on the basis that the information is stored in electronic form and pursuant to s 75 of the GPA Act, the agency would be required to create a new record to bring the information into existence. 29. When a record is dependent on technology or equipment in order to access the record then these records must be managed appropriately to preserve the right of access now and in the future. This may include migrating the records to new technologies or applications to ensure that the information is able to be produced or made available under the GIPA Act in response to an access application.
The Information Commissioner submitted that the purpose of s 121 is to ensure that agencies have an immediate right of access to prescribed information held under contractual relationships by service providers and so for practical purposes it operates to bring information into the custody and control of the agency. The Information Commissioner made submissions about the need for: agencies to have regard to s 121 of the GIPA Act when entering into contracts with private sector persons to ensure that certain information held by contractors is designated as government information and subject to the GIPA Act. Agencies should consider information associated with government contracts is transparently accessible whether the contractor is providing a service to the public or undertaking an activity that assists the agency to provide a service to the public.
In earlier submissions from February 2021 the Information Commissioner submitted that on balance the Tribunal could consider that NPS / Northgate is providing a service directly to the public on behalf of DCJ. 73. In this case the service provided by the government agency is private rental subsidies. NPS's algorithm provides an input to the decision-making process regarding the calculation which is intrinsic to the provision of private rental subsidies. The Tribunal may therefore consider that NPS is providing a service directly to the public on behalf of the agency. Such an interpretation would accord with the objects of the GIPA Act.

[17]

(2) determine whether the agency has proved any relevant factual issues on the balance of probabilities;

There is no significant factual issue to determine. However there may be an issue of statutory interpretation. DCJ maintains that they do not hold the information and that they do not have a right to the information. Ms O'Brien submits that the information is in their possession and that consistent with aspects of the Information early submissions, because the information is used by DCJ to provide a service to the public, then they are deemed to hold the information. The evidence for the reasons set out below does not indicate that NPS / Northgate is providing a service to the public on behalf of DCJ.
The only information that has come into DCJ's possession which has not been released to Ms O'Brien appears to relate the material potentially captured under s 121. Whilst the information may ultimately be used by DCJ as part of their provision of the rental subsidy aspect of managing social housing, is that the same thing as DCJ actually using that information to provide a service. The evidence in the affidavits appears to indicate that the information is arrived at by providing a set of variables / inputs which result in a calculation that DCJ applies to determine the amount of rent to be levied after the subsidy is taken into account and deducted.
The process seems to be (on the available evidence and submissions) that NPS / Northgate has developed the tool which calculates the rental subsidy applied by DCJ when determining the balance rent (after deduction of the rental subsidy).This was developed after a contract was executed between Northgate / NPS and Housing NSW in 2007. Following execution of that contract a set a business rules were provided and other parameters to NPS / Northgate.
In my view it is doubtful whether NPS / Northgate is providing a service as a third party contractor. The evidence indicates that s 121 relates to situations where a contractor is engaged to provide a service to the public on behalf of the department. DCJ's submission that Northgate / NPS was engaged to develop a software application which has then been adopted by DCJ, used altered and changed by DCJ to fulfil their own business functions. It would appear that the evidence indicates that NPS / Northgate is not providing a service to the public on behalf of the DCJ, but rather developing a product for DCJ to use.
DCJ submitted that the contract between them and the contractor NPS provides for only DCJ to access the HOMES source code in escrow following a bankruptcy type of event for NPS. On this unchallenged evidence from the contract, DCJ submits that they have no right of access to the source code.
DCJ submits that the source code is unable to be released under the provisions of s 121 of the GIPA Act even if it is deemed to be held by DCJ. The exemption at s 121 (2) (c ) in that the information is NPS's intellectual property and if disclosed to DCJ for release under the GIPA Act or disclosed generally to DCJ, the result, by referencing the words in the statute: could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency, whether at present or in the future.
Therefore it would appear that s 121 (2) (c ) operates (in the current matter) to prevent DCJ gaining access to the material / information and as a result holding that information.

[18]

(3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

The affidavits and the copy of the contract have only emerged while the matter has been before the Tribunal and since DCJ made their remitted decision. Those matters are discussed above in these reasons. The affidavits support the view that the information is not currently held by DCJ. The Legal Contentions of the Respondent and the Further Legal Contentions indicate that further searches during the time the matter has been before the Tribunal have failed to identify any further material within scope which is held by DCJ or for which DCJ has a right of access.
No evidence is available to support a finding that the information is searchable by DCJ and therefore capable of being located. The previous submission that this material is not held on DCJ servers is noted.
The contract between the Department (as they were at that time) and NPS provides at cl 24 for all intellectual property of the Principal (the Department) to vest in the contractor (NPS). At cl 24.2 the following forms part of the contract: 24.2 Intellectual Property to vest in Contractor The Contractor will own all the Intellectual Property rights in the Deliverables delivered by the Contractor including in respect of any modifications or adaptations of those Deliverables which the Principal is entitles to make or have made. … 24.4 Intellectual Property in legacy modules (a) The Principal grants to the Contractor a non-exclusive, royalty-free, world-wide licence to use, modify, reproduce, adapt and sub-licence the Legacy Modules. (b) The Contractor will own the Intellectual property in any modifications or additions it may make to the Legacy Modules. (c ) the licence under 24.4 (a) will terminate only if this Agreement is terminated by the Principal under clause 58 or upon the assignment occurring under clause 24.4 (d) (d) Immediately after the end of the Warranty period and upon the rectification of all Critical Severity Level and High Severity Level Defects notified during the Warranty Period, the Principal assigns to the Contractor all of its Intellectual property in the Legacy Modules. 24.5 Survival of this clause 24 This clause 24 will survive the termination or expiration of this Agreement.
The Tribunal notes that the Contract containing cl 24 is dated 4 September 2007, almost three years prior to the commencement of the GIPA Act on 1 July 2010.

[19]

(4) applying those findings, decide what the correct or preferable decision is;

After examining these issues the following is apparent. There is evidence that DCJ has been unable to locate the material in their records holdings, digitised TrIm or similar records, or on their servers.
Whilst received after the initial hearing of the matter, the affidavit of S McCune has not been challenged by Ms O'Brien, nor has there been a request for cross examination of the witness. Ms O'Brien's belief that the information is held by DCJ has been considered in accordance with the objective approach as set out in the Appeal Panel decision of Wojciechowska. Whilst there is no onus on Ms O'Brien to establish that there are reasonable grounds to believe that the information exists (and is held by DCJ), the evidence before the Tribunal from DCJ indicates that to a significant level that the information is not held.
The evidence indicates that the information is held by a third party, NPS, and that under s 121 there could be a right of access to such information, subject to the provisions of s 121 (2).
Having regard to the terms of the Contract between NSW Land and Housing Corporation (the Principal) and Northgate Public Services Pty Ltd (the Contractor) dated 4 September 2007, there is no right of access included in the terms of the contract. Whilst cl 22 deals with confidentiality and the obligation of confidentiality, I note again that it is drafted in a manner that does not specifically provide for information to be disclosed by the Contractor to the Principal in a manner consistent with the statement in s 121 of the GIPA Act. 121 Provision of information by private sector contractors (1) An agency that enters into a contract (a government contract) with a private sector entity (the contractor) under which the contractor is to provide services to the public on behalf of the agency must ensure that the contract provides for the agency to have an immediate right of access to the following information contained in records held by the contractor - (a) information that relates directly to the performance of the services by the contractor, (b) information collected by the contractor from members of the public to whom it provides, or offers to provide, the services, (c) information received by the contractor from the agency to enable it to provide the services. (emphasis added)
This may be because (as noted above) the contract predates the GIPA Act and the obligations that Act places on government contracts as set out in s 121.
I am not satisfied that DCJ has an immediate right of access to that information for those reasons. In addition even if I was satisfied that there was an immediate right of access, having regard to s 121 (2) of the GIPA Act and cl 24 of the Contract, in my view it is doubtful that s 121 would provide access to the information, because such information, having regard to the type of information that it is and the manner in which the contract has been drafted and settled between the parties, would offend s 121 (2) (c ) of the GIPA Act.
In my view disclosure to the agency (DCJ) so that the information could be released under the GIPA Act or for any other reason, could reasonably be expected to place the contractor (NPS) at a substantial commercial disadvantage in relation to the agency (DCJ) whether at present or in the future. Essentially such disclosure could lead to the position that DCJ no longer needed to engage in the specialist services of NPS to facilitate DCJ carrying out its business and discharging their statutory functions. On this analysis s 121 (2) (c ) is clearly enlivened and would operate to prevent the requirement for access to the information by DCJ, to meet the criteria that the information is held. If the information was determined to be held by DCJ, then it would be able to be considered under the access and release provisions of Division 1 and Division 2 of Part 2 of the GIPA Act.
In this regard s 121 (2) appears to provide a practical exemption to release of such government information, applying some of the language of the public interest considerations against disclosure as is set out in cl 4 of the Table to s 14 of the GIPA Act. 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 - (a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, (e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
Whilst s 121 (2) does not operate as a public interest consideration against disclosure, it would appear that the provision contained in 121 (2) (c) is designed to provide for similar commercial information as set out in s 14 to be quarantined from consideration under the GIPA Act, because it creates a positive finding on the facts that such information is not held.

[20]

(5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.

Consistent with the five stage test as set out in Wojciechowska, it would be open to the Tribunal to make a finding that the information is not held on multiple grounds including that the information is not held by DCJ in their own holdings, the information is not deemed to be held by a deemed right of access under s 121 because NPS / Northgate is not providing a service ultimately to the Department and the public, DCJ is prevented from a right of access under s 121 (2) (c ), as well as the contractual prohibition. As a result it appears open to the Tribunal on this analysis to affirm the decision of the respondent DCJ.
In respect of the provisions of s 121 a general authority for the correct approach to take in instances concerning statutory interpretation arises in the case of Project Blue Sky v Australia Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In that Case Brennan CJ noted the following: 69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Consistent with Blue Sky, and noting that the GIPA Act as a whole provides for the carving off from the general objects under the Act of information with a commercial flavour, I can see no basis to consider the provisions of s 121 in any other manner than that set out at [99] - [105] above.
It would appear that s 121 (2) (c), various overriding public interest considerations against disclosure provisions in cl 4 of the Table to s 14, (see [104] above), all operate to allow consideration of withholding certain types of government information. Section 3 (1) (c ) in the objects section of the GIPA Act provides that where information is held, c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
If I am wrong in the finding concerning s 121 and s 121 (2) (c ) preventing a right of access, then the other overriding public interest considerations against disclosure would potentially apply in the same manner (on assessment and weighting), to prevent release of the information. The DCJ made further submissions about these matters referring to clause 4 (d) from the Table to s 14 of the GIPA Act as a public interest consideration against disclosure. 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 - … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, …. (Emphasis added)
Whilst neither the DCJ or the Tribunal has undertaken a weighting exercise on the effect of cl 4 (d) (above) on the information, it appears appropriate to observe that the clause as well as cl 4 (c) appear to operate in a similar fashion to what is expressed at 121 (2) (c) concerning a substantial commercial disadvantage.
The Tribunal and DCJ in the first instance would need to access the information in order to engage in the weighing of the public interest consideration against disclosure coupled with the general public interest in favour of disclosure. However as has been set out in the evidence of DCJ, the information cannot be located by DCJ and as a result they have not been able to consider this issue further. On this point DCJ made the following submission: 52. The source code as previously submitted by the Respondent is owned by NPS and if the relevant source code is disclosed, then given that there is a pre-existing service contract between the Respondent and NPS for service and maintenance of the HOMEs system, NPS would come to a distinct commercial disadvantage as releasing such information under GIPA (as per section 73 of the GIPA Act to the public at large), would reasonably have the effect of placing NPS at a significant commercial disadvantage as the information could then be used by the Respondent to replicate and / or create the same or a similar software product 'in house' or use the source code and algorithms (intellectual property) to request another service provider to provide the service at a lower cost and thus place the contract between NPS and the Respondent in jeopardy.
There is one further matter to consider which may be applicable to consideration of release of the information. Section 121 provides that the contract: must ensure that the contract provides for the agency to have an immediate right of access to the following information contained in records held by the contractor - (a) information that relates directly to the performance of the services by the contractor, (b) information collected by the contractor from members of the public to whom it provides, or offers to provide, the services, (c) information received by the contractor from the agency to enable it to provide the services
As I have previously observed the contract between the then Department and Northgate / NPS predates the commencement of the GIPA Act by approximately three years. In my view in the absence of any submission to the contrary it would be doubtful that s 121 applies retrospectively. Whilst the GIPA Act applies to override secrecy provisions and similar legislative restrictions on government information, it is doubtful that it can have any force in respect of an existing contractual arrangement of a commercial nature entered into prior to the commencement of the Act.
Whilst the DCJ and the Information Commissioner made submissions about s 121 and the contact, no submissions were received on this specific point. However I make no formal finding on this point because the ultimate finding that I will make is that the remaining information is not held by DCJ.
As a result there is no prejudice to any party highlighting this aspect in this manner.

O'Brien v Secretary, Department Communities and Justice

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Decision date

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Judgment (23 paragraphs)

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Legislation Cited (1)

Cases Cited (7)