Office of Environment and Heritage v Scenic NSW Pty Ltd

NCAT Appeal Panel|2019-05-22

Introduction

The Office of Environment and Heritage ('OEH') appealed against a decision of the Tribunal at first instance in relation to an application made on behalf of Scenic NSW Pty Ltd ('Scenic NSW') for access to government information under the Government Information (Public Access) Act 2009 (NSW) ('GIPA Act').
The Information Commissioner made submissions in relation to the appeal.
This Appeal Panel heard and decided the matter on 22 May 2019. We have now been asked to provide our reasons.

Facts

The Tribunal at first instance set out the following account of the facts: Date Narrative 10 July 2017 The applicant made an access application to the respondent. August 2017 Respondent consulted with third parties (called objectors). 29 August 2017 Respondent decided to provide access to some information and refused access to other information. 26 September 2017 The applicant applied to the respondent for an internal review of the access decision. • Respondent made a new decision and agreed to provide access to previously refused information despite the objections of objectors. 17 October 2017 • Respondent notified objectors of its decision to provide access to information the subject of objection. • Respondent (arguably) says it incorrectly advised the objectors of an ability to seek internal review. • Objectors also correctly advised they had a right to seek external review by NCAT. November 2017 • Objectors sought internal review (20 November 2017). • The applicant commenced external review proceedings in NCAT of the internal review decision. 22 February 2018 The applicant withdrew the NCAT proceedings. • Respondent advised the objectors that they could not apply for internal review. March 2018 • Respondent correctly advised objectors that they could apply for external review by NCAT but would need to seek an extension of time. • Respondent did not advise the objectors of a right to seek external review from the Information Commissioner (IC). • IC advised the respondent that it had received an application for external review of the internal review decision of 17 October 2017. 25 May 2018 • Respondent advised the IC that pending completion of the IC review it would not provide the applicant access to the information it had decided to provide on 17 October 2017. • Respondent wrote to the applicant advising of the course of action it had confirmed to the IPC. 24 July 2018 • The applicant filed the present application on the ground that the respondent had refused to provide access in accordance with the internal review decision.

Tribunal's decision

The application for administrative review to the Tribunal at first instance was made on the following grounds: On 25 May 2018 the Office of Environment and Heritage (OEH), contrary to section 9(1) of the Government Information (Public Access) Act 2009 (GIPA Act), refused to provide access in accordance with the OEH internal review decision GIPA928IR (attached) and the OEH email advice dated 27 March 2018 (attached) to the information sought by the Applicant in the application made by its agent Elton Consulting Group Pty Ltd under the GIPA Act, notwithstanding all 3rd party objector review rights had expired and no review of GIPA928IR duly applied for was pending.
The Tribunal at first instance decided the matter on the papers, without an oral hearing. The Tribunal published reasons on 2 January 2019, and made the following orders: 1. The Respondent's decision to defer access to the information is set aside. 2. The matter is remitted for reconsideration by the respondent within 28 days in accordance with the findings in these reasons. 3. The respondent is to serve a copy of these reasons on the objectors within 7 days so that they can consider their positions. On 29 January 2019, a further order was made staying the operation of Order 2 until further order.

Grounds of appeal

The OEH appealed to the Appeal Panel from the decision of the Tribunal at first instance, on the following grounds: Ground 1. The Tribunal erred by failing to determine the Office of Environment and Heritage's ('the OEH's) application that the proceedings be dismissed for want of jurisdiction and, instead, proceeding to determine Scenic NSW Pty Ltd's ('Scenic's') administrative review application, including the substantive issue of whether the OEH's 'decision' was the correct and preferable one: Tribunal's reasons at [4]. In doing so, the Tribunal: (a) asked itself the wrong question and applied the wrong test; and (b) denied the OEH and those identified in the Tribunal's Reasons as the 'Objectors' an opportunity to be heard on the substantive issues in Scenic's administrative review application. Ground 2. The Tribunal erred in finding there was a relevant 'reviewable decision' by which Scenic was aggrieved for the purpose of ss 80 and 100 of the Government Information (Public Access) Act 2009 ('the GIPA Act"). In particular: the only 'reviewable decision' made by OEH was the internal review decision of 17 October 2017 ('the internal review decision'), which was relevantly a decision to grant access to information under s 58(1)(a); Scenic was not a person 'aggrieved" by the internal review decision. Physical access had been withheld from Scenic pending a review conducted by the Information Commissioner at the request of the Objectors. Scenic contended that the review rights of the Objectors had expired. Whether or not that was the case, and in summary: (a) the OEH did not make any 'decision' to defer access to information under s 78 or any other provision within Part 4 of the GIPA Act; (b) 'reviewable decisions' for the purposes of Part 5 of the GIPA Act are limited to decisions made under Part 4 of the GIPA Act; (c) ss 54(6) and (7) do not require an agency to make a 'decision' regarding access to information, but instead require an agency, which had decided to grant access to information, to withhold physical access while review rights remain on foot; (d) the Tribunal does not have jurisdiction to review an agency's assessment of whether the time period in ss 54(6) and (7) had expired or not. Ground 3. The Tribunal erred in its interpretation of s 88 of the GIPA Act, since it determined that the Objectors had a right to seek internal review of the OEH's internal review decision of 17 October 2017: see Tribunal's reasons at [15]-[19]. Ground 4. The Tribunal erred in applying s 105 of the GIPA Act to the question of whether the proceedings should be dismissed for want of jurisdiction: Tribunal's Reasons at [10].

Ground 2

We will deal with Ground 2 first. In its application to the Tribunal at first instance, Scenic sought review under the GIPA Act of a decision it asserted had been made by OEH on 25 May 2018. On that day, an email was sent by an officer on behalf of the Information Commissioner to the GIPA officer of OEH. That email informed the OEH that the Information Commissioner had received an application for external review of the internal review decision made by OEH on 17 October 2017. The email went on to say: I note that you wrote to the one of the Applicants on 26 March 2018 to advise of their correct review rights under the GIPA Act. I have taken this date as the commencement of the Applicant's 40-day time period to apply for external review. Given that this 40-day time period expires tomorrow, we ask that you please acknowledge receipt of our external review notification and that you please also confirm you will not release the information until the external review has concluded. The reference to 'Applicants' in the email is a reference to the objectors. On the same day, 25 May 2018, OEH sent an email to Scenic's agent which said, in part: We have been advised today that the Information and Privacy Commission has accepted an application for external review in respect of the internal review conducted on 17 October 2018. See below the email we received from the IPC. As requested, we have provided the acknowledgement and confirmation requested by the IPC regarding the release of the relevant documents.
Part 5 of the GIPA Act deals with the review of decisions. Part 5 includes s 100(1) of the Act, which says: A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review). In s 80 of the GIPA Act (which is also in Part 5), the decisions which are reviewable decisions are listed.
OEH argued that the Tribunal does not have jurisdiction to decide Scenic's application. OEH argued that the email of 25 May 2018 in which OEH acknowledged that it would not release the relevant documentation, was not a 'reviewable decision', within the meaning of the Act, and that the Tribunal therefore has no jurisdiction in relation to it. In fact, OEH argues that the acknowledgement was not a decision at all, but merely reflected an understanding of the obligations of OEH under s 54 of the GIPA Act.
The GIPA Act provides, in s 54(6) and (7): (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.
The GIPA Act, in s 90, provides that an application for a review of a decision by the Information Commissioner must be made within 40 working days after the notice of the decision to which the review relates is given to the applicant (ie, the applicant for review, which in this case is the objectors).
Scenic argued that the application to the Information Commissioner by the objectors was out of time, and that the Information Commissioner had no power under the Act to extend time. For the purposes of this argument, the notice of the decision was taken to be the communication of 17 October 2017, which gave incorrect information about review rights. The Information Commissioner took the 'notice of decision' for the purposes of the s 90 time limit to be the notice of March 2018.
The GIPA Act does not include as a 'reviewable decision' the decision by the Information Commissioner to accept an application for review as a valid application. We determine that the Tribunal does not have jurisdiction to review that decision.
We consider that the acknowledgment provided by OEH on 25 May 2018 was simply an acknowledgement as to the operation of s 54(6) and (7) of the GIPA Act. We determine that compliance with those provisions required OEH to refrain from providing access in accordance with its decision with respect to access of 17 October 2017.
The Tribunal erred in finding that OEH's email of 25 May 2018 in which it acknowledged that it would not release the relevant documentation, was a 'reviewable decision', within the meaning of the GIPA Act. It follows that the Tribunal does not have jurisdiction to review that decision.

Ground 1

In proceeding to deal with the substantive issues raised by Scenic's application, rather than determining that the Tribunal had no jurisdiction, the Tribunal at first instance erred.

Ground 3

The GIPA Act provides, in s 88: A person is not entitled to an internal review of a decision made on the internal review of a reviewable decision.
The Tribunal at first instance debated the question as to whether, if, say, the applicant for access to government information exercised its right to seek an internal review of the initial decision in relation to that application within the agency, and an internal review decision has been made, an objector could at that point seek an internal review within the agency.
In our view s 88 bars any person from seeking a further in internal review of a decision on an internal review, including the objectors in the circumstances set out in paragraph 18 above.

Orders

The following orders were made on 23 May 2019: 1. The appeal is upheld on Grounds 1, 2 and 3. 2. The Tribunal's orders No 1 and 2 are set aside. 3. The Respondent's application for review is dismissed.

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: 12 July 2019

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