Scenic NSW Pty Ltd v Office of Environment & Heritage

Reasons for DECISION

This matter concerns a Government Information (Public Access) Act 2009 (GIPA Act) question. By Order issued 27 September 2018 a hearing was dispensed with. Having read the submissions of the parties it is appropriate that this matter be dealt with on the papers. All of the parties' relevant arguments are set out in the papers.
Unfortunately the history of this matter can only be described as regrettable.
The short chronology is as follows: 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.

The issue is whether the applicant is entitled to information pursuant to a decision to grant access, and whether the respondent has authority to defer that access.
The applicant's case was that either: 1. there was a refusal to provide access to the information in response to an access application within the meaning of s80(d) GIPA Act; and in the alternative (put for the first time in its written submissions) 2. that the respondent had deferred provision of access to the information in response to the access application (and referred again to s80(d) GIPA Act).
It is not clear, but the applicant may have mistaken the relevant provision relating to deferral of provision of access which is specifically provided for in s80(h) GIPA Act which provides as follows: "The following decisions of an agency in respect of an access application are "reviewable decisions" for the purposes of this Part:… (h) a decision to defer the provision of access to information in response to an access application,"
Section 80(d) is not appropriate for this particular situation. Here the relevant decision of the respondent on 17 October 2017 was the internal review decision to grant access, not to refuse it, but it has delayed in providing actual access.
Although originally the applicant was aggrieved by the internal review decision and commenced NCAT proceedings it later withdrew these. I can infer that it is no longer aggrieved by that decision.
The applicant submitted that the advice of 25 May 2018 from the respondent was another reviewable decision, based on additional information that the IC had received an application for external review from the objectors (s.58(3) GIPA Act). The respondent submitted that the additional information within s.58(3) is information held by the agency within the scope of the access application. This is the correct approach in my view, as the applicant's argument may, taken to extremes, lead to an interminable series of challenges.
What the applicant is now aggrieved by is the respondent's deferral of provision of actual access to the information, pending the outcome of the IC's review, as notified on 25 May 2018. The respondent argues that no "decision" has been taken because the applicant has failed to identify the relevant provision in Part 4 GIPA Act giving a basis or source of power to make the decision. There is, in my view, no necessity for an applicant to take the step of identifying a provision which supports its position. The agency has the burden of justifying its decision (s.105 GIPA Act).
It seems to me that the respondent has purported to defer provision of access where access has been granted in the past.
Section 78 of the GIPA Act provides for the circumstances when access to information can be deferred. This section deals with situations where certain government decisions are awaiting publication. It provides in relevant part: "78 DEFERRAL OF ACCESS (1) An agency that has decided to provide access to government information in response to an access application may defer providing that access if: (a) the information is contained in a record (or a draft of or extract from a record) that, by or under this Act or some other legislative instrument, is required to be published but is yet to be published, or (b) the information is contained in a record (or a draft of or extract from a record) that has been prepared for presentation to Parliament, or that has been designated by the responsible Minister for the agency as appropriate for presentation to Parliament, but is yet to be presented, or (c) the information is contained in a record (or a draft of or extract from a record) that has been prepared for submission to a particular person or body, or that has been designated by the responsible Minister for the agency as appropriate for submission to a particular person or body, but is yet to be submitted. Note : A decision to defer access is reviewable under Part 5. (2) Access may be deferred only until the record has been so published, presented or submitted. (3) If access is to be deferred, the notice of decision of the access application given to the applicant must state that access is to be deferred and state the date on which access will be provided or (if that date is not known) describe the event following which access will be provided and the expected date of that event…."
This is not a case that would fall within s78, as the information is not of the kind referred to in the section.
Sections 54(6) and (7) GIPA Act may have had some operation but they appear to be a spent force in this case. The subsections state: "(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 respondent gave the objectors notice of its 17 October 2017 internal review decision to provide the access applicant with the information despite the objections, and gave the objectors notice of the right to have that internal review decision reviewed. The respondent says that it incorrectly advised the objectors that they could apply for a (further) internal review of the internal review decision, or seek external review by NCAT, set out the relevant time limits, and attached an information sheet about their review rights.
It is arguable that the agency made a mistake. The respondent says that it based its view on s.88 GIPA Act which provides: "A person is not entitled to an internal review of a decision made on the internal review of a reviewable decision."
Section 82 GIPA Act provides that a "person aggrieved" by a reviewable decision of an agency can seek an internal review. This can include an access applicant or an objector, but not a "mere busybody" (Daley v SAS Trustee Corporation (2016) NSWLR 525 at 534-5 per McColl JA).
The access applicant was aggrieved by the original decision of 29 August 2017 and sought internal review. The objectors were not aggrieved by that decision. The next decision was the internal review decision of 17 October 2017. The access applicant was aggrieved by that initially, but could not seek further internal review under s. 88 GIPA Act so went to NCAT, but then withdrew. The objectors were aggrieved for the first time by the 17 October decision. Arguably s. 88 GIPA Act is designed to allow an aggrieved party one opportunity to seek internal review of each decision. Arguably it is not designed to prevent the objectors from seeking internal review just because the access applicant has had its one opportunity. On the other hand, the objectors have been consulted and made their submissions to the agency about the access application, and the agency has initially accepted their objections. The objectors, not being aggrieved, would not seek internal review. If the applicant, being aggrieved, seeks internal review, and the objectors objections are 'overridden', the objectors' views do not get a chance to be internally reviewed on this view. They are caught up in and covered by the access applicant's internal review. The objectors can then only seek external review from the IC or NCAT. This situation is not resolved by reference to s.54(7) GIPA Act which refers to objectors' entitlement to apply for review under Part 5, which covers both internal and external reviews.
Guidance is provided by the IC's published Guideline 5 titled "Consultation on public interest considerations under section 54 [GIPA Act]" of April 2017 at paras 6.1 to 6.4 where it is stated that a third party whose information is to be disclosed to an applicant may seek an internal review. It is noted that internal review is a precondition to seeking external review by the IC (s.89(2) GIPA Act). (There is no such precondition for review by NCAT.) Agencies are required to have regard to relevant guidelines issued by the IC (s.15(b) GIPA Act). In the end I have come to the view that the approach adopted by the IC should be followed, given that it is the considered view, and has been published to guide agencies and the public.
The objectors sought internal review. This was required to be made within 20 working days after notice of the decision was given to the access applicant, although internal review applications can be accepted out of time (s.83 GIPA Act). The agency must make its internal review decision within 15 working days (which can be extended) (s.86 GIPA Act). If the agency does not make a decision within the time limits it is deemed to have made its original decision (s.86(5) GIPA Act). The agency should have given notice to the objectors. There is no evidence before the Tribunal of whether and when any formal notice was given. Section 126 GIPA Act makes provision for the contents and manner of the giving of notices by agencies. It can be reasonably assumed that the objectors at least had constructive notice of the internal review "decision" at the latest by a date in March 2018. The objectors then had 40 working days to apply for external review by the Information Commissioner (s.90 GIPA Act) or by NCAT (s.101(1) GIPA Act). There is no provision for an extension of time for application to the Information Commissioner, but applications for review out of time can be made to NCAT if a reasonable excuse can be shown (s.101(4) GIPA Act).
Returning to s.54(6) and(7) GIPA Act, the objectors were, in my view correctly advised of their rights of review of the internal review decision on or about 17 October 2017. This complies with s. 54(6) GIPA Act. The objectors duly sought internal review apparently within the time limits of their entitlement, so the applicant's right of access would have been 'frozen' pending review (s.54(7) GIPA Act). It is not put to the Tribunal that the applicant's rights are still 'frozen' by reason of s.54(7). The respondent simply submits that in taking account of s.54(6) and(7) GIPA Act it did not make a 'decision', but merely recognised a consequence of the operation of the Act. However I do not see how this affects the present position of the applicant.
In the absence of evidence that the respondent is prevented by the operation of the Act from actually providing access to information to which it has determined the applicant is entitled, there is no apparent basis for the agency to withhold or defer provision of the information.
The Tribunal does have jurisdiction as there is a reviewable decision (the purported deferral of access s.80(h) GIPA Act) and the applicant is aggrieved by that (s.100 GIPA Act).
The respondent had no basis for deferring the access under s. 80(h) GIPA Act as s.78 GIPA Act is exhaustive of the circumstances in which deferral can be utilised. I note there is provision made for extension of time for access (see s. 77 GIPA Act) but no submissions have been made in relation to this section.

At a glance

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Judgment (4 paragraphs)

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Cited By (3)