This is an application by Mr Rod O'Grady seeking an extension of time to file an application for information held by Sutherland Shire Council ('the Respondent') under the Government Information (Public Access) Act 2009 ('the GIPA Act'). Mr O'Grady seeks to access certain information held by the Respondent and in that regard he made an original GIPA Act access application on 5 November 2019.
Following a number of matters which are not relevant to this application, the Respondent on 5 August 2020 made a decision ('the reviewable decision') in relation to the GIPA Act application. Mr O'Grady accepted that decision when it was made.
However, Mr O'Grady asserts that he became aware of other information in December 2020 which led him to not be satisfied with the reviewable decision.
It is not in dispute that Mr O'Grady's application to review the reviewable decision, filed on 2 March 2021 in this Tribunal, is out of time.
These reasons for decision deal specifically with Mr O'Grady's request for the Tribunal to allow him to file his application out of time.
[2]
Background
Mr O'Grady made a GIPA application seeking the Respondent to provide him access to information on 5 November 2019. On 28 November 2019, at the request of the Respondent, that request was scaled down. The Respondent refused Mr O'Grady's request on 18 December 2019. The Respondent was unable to conduct an internal review of that decision and Mr O'Grady requested the Information Commissioner to conduct an external review. The Information Commissioner recommended the Respondent make a new decision. The respondent made a new decision on 5 August 2020 (the reviewable decision). Mr O'Grady accepted that decision and did not seek further internal or external review.
The only part of the reviewable decision which Mr O'Grady seeks this Tribunal to review relates to information held by the respondent about an investigation undertaken by a conduct reviewer under the Respondent's Code of Conduct ('the Code'). Mr O'Grady alleges, amongst other things, that staff and the executive of the Respondent were in breach of the Code.
Mr O'Grady requested the Office of Local Government ('OLG') to investigate the alleged breaches of the Code.
On 3 December 2020, the OLG informed Mr O'Grady that the Council appointed conduct reviewer did not have jurisdiction to undertake investigations into a code of conduct complaint against members of the Respondent's staff. Mr O'Grady asserts he previously understood that such jurisdiction existed and it was on this understanding he accepted the Respondent's 5 August 2020 decision.
Mr O'Grady has framed this application for extension of time on the basis that the new information he received from the OLG significantly affects part of the Respondent's reviewable decision. It is predominately for this reason Mr O'Grady has filed his application in this Tribunal to review the reviewable decision which is out of time.
I note at this juncture, the Respondent does not agree with Mr O'Grady's interpretation of the context of the OLG's letter concerning the jurisdiction of the conduct review.
The Respondent opposes Mr O'Grady's application seeking an extension of time to file his application. I have considered the Respondent's submissions in this regard.
[3]
The Relevant Legislative Scheme
In short, the GIPA Act provides a regime for persons to access government information, to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 5 of the GIPA Act provides there is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 of the GIPA Act 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.
Importantly, s101 of the GIPA Act provides:
'(1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review).
(2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review.
(3) If an application for NCAT administrative review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner's review is to end.
(4) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application.
(5) An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case.
(6) The time for making an application for NCAT administrative review may be extended under this section even if that time has expired.'
[my emphasis]
The Tribunal is required to consider if Mr O'Grady has provided a reasonable excuse for the delay in filing his application in this Tribunal (see Turner v Commissioner of Police, NSW Police Force (2014) NSWCATAP 4 at [18]).
In deciding matters to extend time, the Tribunal will only in exceptional circumstances and when it would not be unjust to grant such extensions do so. The power to extend time must be exercised in a fair and reasonable manner and in a way that takes account of the interests of both parties. At all times when considering matters before the Tribunal, the guiding principle as set out in s36 of the Civil and Administrative Tribunal Act 2013 (NSW) is apposite.
[4]
The submissions of Mr O'Grady
Mr O'Grady identifies essentially three parts of the total delay from when the reviewable decision was made until he filed the application in this Tribunal. I note the relevant dates being 7 August 2020, the date Mr O'Grady received the Council's reviewable decision, and 2 March 2021, the day on which he filed an application in this Tribunal. The total delay is 143 working days (I disagree with Mr O'Grady's calculation of 133 working days).
Mr O'Grady says from 7 August 2020 to 3 December 2020 there were approximately 83 working days from the time of the reviewable decision being received to the date on which he became aware of the OLG's view concerning the jurisdiction of a conduct reviewer.
He further asserts that from 3 December 2020 to 18 January 2021, the time in which he received the OLG's letter, he was distracted by ongoing correspondence with the Council on related matters and, by way of seeking resolution, he was preparing a complaint under the Government Information (Information Commissioner) Act 2009 (the 'GIIC Act') for the Information Commissioner (31 working days).
Mr O'Grady then asserts from 18 January 2021 to 28 January 2021 the Information Commissioner determined an application and decided the matter was outside of her jurisdiction and declined to deal with the complaint (7 working days). Mr O'Grady on 1 February 2021 requested the Respondent to consider a GIPA Act internal review, seeking its acceptance for an out of time application. The Respondent declined that request on 23 February 2021 (16 working days). Following that he undertook research and filed his application on 2 March 2021 with this Tribunal (6 working days).
It was conceded by the Respondent that during the hearing that from the period 1 February 2021 to 23 February 2021 (16 working days), the Respondent was considering the request for an internal review and that that time should not be included in the calculation of the delay as a reasonable explanation has been provided. I accept this submission.
Mr O'Grady submits that he has acted in good faith and made best endeavours to recognise his duty to support the need for efficiency by the Tribunal. Mr O'Grady recognises that each application for an extension of time rests on its own merits given the varying circumstances of each case. Mr O'Grady asserts that his application is significantly serious due to conflicting advice that was provided by the OLG on two occasions with respect to his complaint concerning a breach of the Code by members of the Respondent's staff. In this regard, Mr O'Grady took me to the letter he received on 3 December 2020 where the OLG Deputy Secretary said in relation to the jurisdiction of a conduct reviewer that the jurisdiction only 'relates to complaints about councillors, not members of staff.' Mr O'Grady then took me to correspondence contained at Tab 6 of the Respondent's documents, namely, an email from Ms Lynn Brown, Manager Investigations, of the OLG, where she stated: 'Consequently, OLG is satisfied appropriate steps have been taken to manage Mr O'Grady's complaints and therefore no action is warranted by OLG in relation to the Part 8 allegation.' In this regard, Ms Brown was referring to the appointment of a conduct reviewer to review Mr O'Grady's complaints about a breach of Code of Conduct by the staff of the Respondent.
Mr O'Grady placed significant emphasis on the purported conflicting advice of the OLG concerning his complaint relating to an alleged breach of the by the Respondent's staff and the appointment of a conduct reviewer. In so far as that matter relates to this application, it is instructive in terms of an explanation for the delay. I give Mr O'Grady's submission no higher weight given the limited scope of this application for which I am to determine.
Mr O'Grady contends that it was as a result of the OLG's determination on 3 December 2020 that caused him to become dissatisfied with the reviewable decision previously accepted by him. He says that prior to the reasons provided by the OLG on 3 December 2020 he had no objection to the reviewable decision. It was the new information provided by the OLG he says which material affected his understanding of the reviewable decision. This then caused him to become dissatisfied with the reviewable decision as his GIPA Act request related specifically to the appointment of a conduct reviewer.
[5]
Is the explanation for the delay of 83 working days from 7 August 2020 to 3 December 2020 reasonable?
Mr O'Grady made the following submission:
'This subject case is significantly serious due to the conflicting advice by the State regulator; the procedures define a limited role for a conduct reviewer but, contrarily, the OLG endorsed 'appropriate steps have been taken' to refer a complaint about a member of staff to a conduct reviewer under procedures Part 6 in defiance of that limited role. Then the Deputy Secretary declares, following a Part 6 preliminary assessment, that a conduct reviewer's determinations only apply to 'councillors, nor members of staff' and subsequently dismisses those determinations.
This is conflicting, ambiguous, confusing and irrational.'
Mr O'Grady in his written submissions and to a limited extent in his oral submissions, referred to a failure of the Respondent to provide the reasoning or evidence to remove that confusion and uncertainty. As I indicated to Mr O'Grady during this hearing, the Tribunal is not concerned with any inadequacies of the OLG, or the Respondent, in the way in which those agencies conducts investigations or determine matters. The Tribunal has no jurisdiction in that regard. The role of this Tribunal is to decide whether Mr O'Grady has provided a reasonable explanation for his delay.
In so far as the delay concerning Part 1 of Mr O'Grady's explanation, I am satisfied that Mr O'Grady has provided a reasonable explanation as to how the conflicting advice caused him to change his view in originally accepting the reviewable decision.
[6]
Is there a reasonable excuse concerning Part 2 [31 working days]?
Mr O'Grady asserts that from 3 December 2020 through to 18 January 2021 he did not immediately comprehend the true significance or seriousness of the OLG's view concerning the jurisdiction of a conduct reviewer. He says he was distracted by ongoing correspondence with the Council on related matters and, by way of seeking resolution, he was preparing a complaint under the GIIC Act 2009 for the Information Commissioner on 18 January 2021.
Mr O'Grady by his admission in submissions and during the hearing said that his mind was turned to other related matters he had with the Respondent. I note Mr O'Grady has been involved in a long-running dispute with the Respondent which began on 6 February 2002.
In my view, 31 days is not a significant delay, particularly considering this period intervened with the Christmas/New Year vacation when some staff of the Respondent would likely have been on leave. I am satisfied that Mr O'Grady has provided a reasonable explanation for the delay.
[7]
Is Mr O'Grady's explanation concerning Part 3 reasonable?
From 18 January 2021 to 28 January 2021 the Information Commissioner determined an application lodged by Mr O'Grady and decided the matter was outside of her jurisdiction and declined to deal with the complaint (7 working days). I accept that Mr O'Grady has provided a reasonable explanation for this period of his delay.
As set out above, the Respondent at the hearing conceded that the period between 1 February 2021 and 23 February 2021 should not be included in the time which the Tribunal is to consider with respect to a delay.
Mr O'Grady explains the remaining 6 days of delay, being [6 working days] were taken up by him in researching some case law about s. 101 out of time applications. He also asserts that he had given consideration to alternative dispute resolution to avoid having to involve the Tribunal. There is no evidence before the Tribunal that Mr O'Grady is legally trained. I accept that a short period to research the law concerning s. 101 applications and seek to resolve the matter pre-litigation with the Respondent is a reasonable explanation for the delay of 6 days.
[8]
Conclusion
Throughout his written and oral submissions Mr O'Grady gave an extensive history concerning his involvement in complaints with the Respondent and propounds the merits of his application for review. The findings of the OLG concerning the jurisdiction of a conduct reviewer go a significant way to the merits of the substantive application filed in this Tribunal. Given that this hearing was to determine a limited issue, being whether Mr O'Grady has provided a reasonable explanation for his delay, I have considered those matters as background information, except in so far as they relate specifically to Mr O'Grady's explanation as to why he decided not to accept the reviewable decision upon receiving the letter from the OLG in December 2020.
Mr O'Grady had 40 working days to lodge his application to review the reviewable decision in this Tribunal. It was due on or about 2 October 2020. He did not lodge it for approximately 6 months after that time on 2 March 2021. The Respondent concedes that the period of delay between 1 February 2021 to 23 February 2021 ought not to be counted as part of the delay. I accept this submission for the reasons set out above. That leaves a period of approximately 5 months in which Mr O'Grady is required to provide a reasonable explanation. He submits that he did not become fully aware and appreciate the significance of the lack of jurisdiction identified by the OLG until 3 December 2020 which had, in his view, a material effect on him accepting the reviewable decision when it was made by the Respondent. Mr O'Grady then asserts that matters relating to him researching the law, considering alternative dispute resolution and being distracted by other related matters he has with the Respondent provide a reasonable excuse for the entire 5 month period.
I note Mr O'Grady was provided with the necessary and relevant information concerning his rights of review at the time he was provided with the reviewable decision. He was also provided with the fact sheet published by the Information and Privacy Commission, together with a reference to their website.
On balance, I find that Mr O'Grady has provided a reasonable explanation for the delay.
[9]
ORDERS
1. The time for filing the application is extended to 2 March 2021.
[10]
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: 11 June 2021