Styles v Department of Planning and Environment

NCAT Administrative and Equal Opportunity|2023-08-16

REASONS FOR DECISION

This is an application for administrative review of a decision of the Office of Local Government (the Office) concerning an application for access to information made by the applicant Ms Styles under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
The dispute concerns a decision by the Office that Ms Styles' access application was not a valid application.
For the reasons that follow, I have decided to affirm the decision under review.

Hearing on the papers

At a case conference hearing on 27 June 2023 the Tribunal recorded that the parties consented to the Tribunal determining the matter on the papers after 24 July 2023.
Neither party has since withdrawn their consent to the Tribunal dispensing with a hearing. I am satisfied that the matter can be adequately determined in the absence of the parties by considering their written materials, and that the parties would be put to unnecessary expense if a hearing was held. Accordingly, I am making an order dispensing with a hearing pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

Materials considered

In making this decision I have had regard to: 1. the application filed in the Tribunal on 1 June 2023; 2. the procedural directions made by the Tribunal on 27 June 2023; 3. the written submissions lodged by the respondent on 3 July 2023 attaching: 1. a statement of Alice Joy Beasley (a senior legal officer with the Office) dated 30 June 2023; 2. a copy of a code of conduct adopted by Wollondilly Shire Council (the Council) in May 2022 which aligns with the "Model Code of Conduct for Local Councils in NSW" made under s 440 of the Local Government Act 1993 (LGA) (the Code); and 3. a copy of the "Procedures for the Administration of the Code of Conduct" adopted by the Council which align with the "Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW" made under 440AA of the LGA (the Code Procedures); 1. the written submissions lodged by the applicant on 14 July 2023 attaching Annexures A to R which include copies of the complaint, correspondence with the Office, correspondence with the Council, an excerpt from an online news article and other documents; and 2. the written submissions in reply lodged by the respondent on 20 July 2023.

Background

On 13 March 2023, Ms Styles made a complaint to the Council in relation to comments made by Mr Ben Taylor, the chief executive officer of the Council (the complaint).
The complaint was expressed to have been made pursuant to the Code.
Ms Styles' complaint related to statements made in the media by Mr Taylor in relation to legal proceedings commenced by Ms Styles against the Council.
On 15 March 2023 Council mayor Mr Matt Gould wrote to Ms Styles informing her that under the Code Procedures he had delegated review of the complaint to Council's manager of governance, integrity and ethics, Mr Eric Imbs.
On or about 17 March 2023 Ms Styles wrote to the Office requesting that the complaint be handled by a professional conduct reviewer.
On 21 March 2023 Mr Imbs wrote to Ms Styles and advised her that he had decided not to deal further with the complaint on the basis that he considered it to be "frivolous and vexatious and not made in good faith".
The Office subsequently conducted a review of the Council's management of Ms Styles' complaint pursuant to cl 8.1 of the Code Procedures. Clause 8.1 states: The Office may, at any time, whether or not in response to a request, review the consideration of a matter under Council's code of conduct where it is concerned that a person has failed to comply with a requirement prescribed under these procedures or has misinterpreted or misapplied the standards of conduct prescribed under the code of conduct in their consideration of a matter.
On 29 March 2023 Mr John Davies (the Office's manager of council governance) wrote to Ms Styles in relation to her correspondence of 18 March 2023. His letter relevantly stated: Having reviewed the information you have provided, OLG is satisfied that it was reasonably open to the mayor to delegate his functions under Part 5 of the Procedures to … Mr Eric Imbs, to deal with the matter on his behalf. OLG is also satisfied that Mr Imbs has dealt with the matter in accordance with the Procedures. Clause 5.3 of the Procedures confers a broad discretion on mayors (and their delegates) to decline to deal with complaints about general managers on the grounds specified in that clause. Given the history of this matter and your interactions with the Council in relation to it, OLG is satisfied that it was reasonably open to Mr Imbs to decline your complaint under clause 5.3(b) on the grounds that it was frivolous and vexatious, and not made in good faith."
Later that day Ms Styles lodged an access application with the Office under s 9(1) of the GIPA Act (the access application) seeking access to the following information: 1. Access to records and correspondence between OLG Manager John Davies with Wollondilly Shire Council Head of Governance Eric Imbs in relation to the complaint by Lynette Styles from the date of the complaint dated 13 March to the date of John Davies letter of dismissal to the writer dated 29 March 2023. 2. Access to all records, file notes and correspondence between Wollondilly Shire Council and the OLG dealing with substantive evidence on which Eric Imbs determined at 5.1 (c) of the Procedures how the writer's complaint against CEO Ben Taylor as identified in the complaint letter to Mayor Cr Gould dated 13 March 2023 was found to be "trivial, frivolous, vexatious or not made in good faith," based on the facts of the complaint. 3. Access to all information and any substantive findings in relation to how Governance Manager John Davies undertook a review of the writer's complaint against WSC CEO Ben Taylor pursuant to clause 8.1 of the Procedures as identified in his email letter dated 29 March 2023. 4. Assess to all records, file notes and any substantive findings in relation to how Governance Manager John Davies considered the writer's written request in the complaint to Mayor Cr Matt Gould dated 13 March 2023 for an independent conduct reviewer to determine the Code of Conduct complaint against WSC CEO Ben Taylor. 5. Access to all records, file notes and tangible evidence identifying Governance Manager John Davies' statement in his 29 March email letter that "given the history of this matter and your interactions with the Council in relation to it, OLG is satisfied that it was reasonably open to Mr Imbs to decline your complaint under clause 5.3(b) on the grounds that it was frivolous and vexatious, and not made in good faith. 6. Access to all records, file notes and any substantive findings or conclusions made by the OLG in relation to the writer's complaint regarding Wollondilly Shire Council's conduct in making unprofessional media statements detrimental to the writer's reputation regarding the publication of a book entitled "Antill Golf Club Associates" on which the complaint against WSC CEO Ben Taylor was based. 7. Access to all records, file notes, emails or any substantive information as to whether or not OLG Manager John Davies sited Mayor Cr Matt Gould's written Delegation of power to WSC Head of Governance Eric Imb authorising him to determine the author's compliant against WSC CEO Ben Taylor, contrary to the writer's written request that the complaint be dealt with by an independent conduct reviewer.
Ms Beasley was authorised by the principal officer of the Office to decide the access application and on 5 April 2023 she issued the Office's decision to Ms Styles (the decision). The decision relevantly stated: I have determined that your application is invalid as the information you seek is excluded information. Section 43 of the GIPA Act precludes an access information being made to an Agency for excluded information of the Agency and the section provides that an application for Government information is not a valid access application to the extent that the application is for excluded information.
On 1 June 2023 Ms Styles lodged this application for administrative review of the decision.
On 9 and 13 June 2023, the Office produced to Ms Styles, on an informal without prejudice basis, certain documents in relation to the access application.

Correct name of the respondent

Ms Styles has named the Office of State Government as the respondent in these proceedings. The respondent has requested that its name be changed to Department of Planning and Environment.
I am satisfied that the Office no longer exists as a free-standing government agency and that with effect from 1 July 2019 the Office was abolished as a separate agency and its functions were transferred to the Department of Planning, Industry and Environment: Clause 13(3) Administrative Arrangements (Administrative Changes - Public Service agencies) Order 2019. The Department of Planning, Industry and Environment was renamed the Department of Planning and Environment with effect from 21 December 2021: Schedule 2 cl 3 of the Administrative Arrangement (Second Perrotet Ministry - Transitional) Order 2021.
I note that references in the GIPA Act to the Office of Local Government are to be read as references to the Department of Planning and Environment: Clause 13(3) of the Administrative Arrangements (Administrative Changes - Public Service agencies) Order 2019 and Sch 2 cl 3(2) of the Administrative Arrangement (Second Perrotet Ministry - Transitional) Order 2021.
For these reasons I have made an order changing the name of the respondent to Department of Planning and Environment.

Jurisdiction

Pursuant to s 55 of the Administrative Decisions Review Act 1997 (ADR Act), the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of "reviewable decisions" made by "an agency".
A decision that an application is not a valid application is a reviewable decision: GIPA Act s 80(a).
There is no dispute that the respondent is an agency for the purposes of the GIPA Act.
Accordingly, the Tribunal has jurisdiction to hear and determine this application.

Administrative review

In determining an application for review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act s 63(1). For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: ADR Act s 63(2).
The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: ADR Act s 63(3).

The GIPA legislative scheme

The GIPA Act provides for the proactive release of government information as well as for the release of information in response to both formal and informal requests.
There is a general public interest in favour of the disclosure of government information: s 12(1).
However, there is an overriding public interest against disclosure of government information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13.
Section 14(1) states that it is "conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1".
The information described in Schedule 1 relevantly includes "information that is excluded information of an agency, other than information that the agency has consented to the disclosure of": Schedule 1 cl 6.
Excluded information of an agency specified in Schedule 2 is defined to mean "information that relates to any function specified in that Schedule in relation to the agency": Schedule 4 cl 1.
Schedule 2 specifies in relation to the respondent: "complaint handling and investigative functions conferred by or under any Act on that Department".
Under s 43(1) of the GIPA Act an access application cannot be made to an agency for access to excluded information of the agency, and under s 43(2) an application for government information is not a valid access application to the extent that the application is made in contravention of this section.

Local Government Act 1993

The respondent's functions that are relevant to this application are the Office's complaint handling and investigative functions.
The relevant powers of the Office in this regard are set out in s 430 of the LGA.
Section 430 states that the Departmental Chief Executive (defined in the LGA as the Chief Executive of the Office) may, at the request of the Minister or on the Departmental Chief Executive's own initiative, conduct an investigation into any aspect of a council or of its work and activities.
Also relevant are the Code Procedures which have legislative force pursuant to s 440AA of the LGA. Clause 8.1 of the Code Procedures provides that the Office may at any time, whether or not in response to a request, review the consideration of a matter under the Code where it is concerned that a person has failed to comply with a requirement prescribed under the Code Procedures or has misinterpreted or misapplied the standards of conduct prescribed under the Code in their consideration of a matter.

Respondent's submissions

The respondent submits, in summary: 1. Each of the categories of information sought in the access application seeks only government information that relates to the complaint handling and investigative functions of the Office and is thus excluded information. 2. Because the access application seeks only excluded information it is not a valid application. 3. The Office was entitled to decide that the access application was not valid without dealing with it further: Robertson v Deputy Secretary, Local Government Planning and Policy [2022] NSWCATAD 147 at [48] (Robertson).

Applicant's submissions

Ms Styles has provided 27 pages of written submissions and 18 attachments. Her submissions address a number of issues which are not relevant to the administrative review of the decision. For example, her submissions contain criticisms of the Office's conduct following receipt of her letter of 17 March 2023, and of its investigation into Council's handling of the complaint. However, the Tribunal's powers under the GIPA Act do not extend to reviewing the Office's complaint handling or investigative processes, or the outcome of such processes. To the extent that Ms Styles' submissions do not relate to the administrative review of the decision that her access application was not a valid application, it is not necessary for me to repeat or consider those points in this decision.
Ms Styles submissions' relevantly make the following points: 1. Her letter of 17 March 2023 to the Office did not seek a review of Council's handling of the complaint. 2. The entirety of the Office's investigative functions are found in ss 429 to 434C of the LGA. To the extent that information sought relates to an investigation done by the Office under cl 8.1 of the Code Procedures, it is not excluded information because it is not "information relating to the Office's complaint handling and investigative functions conferred by or under any Act on that department". 3. There is no evidence of the Office seeking Council's consent to the disclosure of information to Ms Styles for the purposes of cl 6(2) of Sch 1 to the GIPA Act. 4. Applying the principles in s 15 of the GIPA Act, the Tribunal should determine that there is no overriding public interest against disclosure of the information sought in the access application. 5. The information sought is Ms Styles' "personal information" (as defined in Sch 4(4) to the GIPA Act) and therefore cannot be excluded information. 6. The information sought by Ms Styles cannot be "excluded information" because the Office has consented to the informal disclosure of some or all of that information to her.

Legal principles

In DNM v Ombudsman [2019] NSWCATAP 77 (at [51]), the Appeal Panel explained: …[the] statutory purpose of the definition of excluded information is to restrict or prohibit access to government information when there is an overriding public interest against disclosure, such as the public interest in delivering responsible and effective government.
The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interest test before refusing access to it, and the Tribunal is precluded from considering the public interest test in relation to that information: Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253 (Beregi) at [21]; Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41].
"Excluded information" is defined as being information "that relates to any function specified… in relation to the agency". The Tribunal has generally held that the phrase "relating to" and similar expressions is a broad one to be construed with the widest import: Beregi at [21].
If the conclusive presumption applies to information, then no other provisions of the GIPA Act facilitate disclosure of that information: Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 (Broadribb) at [62].
The terms "investigative function" and "complaint handling function" should be given their natural meanings. Drawing on cases in other related fields, however, a significant breadth of information is capable of falling within the definition of "investigative and complaint handling functions": Beregi at [23] citing Broadribb at [45]-[62]; DF v Director General, Attorney General's Department [2002] NSWADT 164 at [25]; Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19]-[32]).

Application of the principles to the information sought in the access application

I will now address each of the specific categories of information sought in the access application: 1. Category 1 seeks correspondence between the Office and Mr Imbs in relation to the complaint. I am satisfied that the Office's involvement in the complaint arose from correspondence from Ms Styles to the Office dated 18 March 2023, in which she requested that the Office direct that her complaint be dealt with by a conduct reviewer instead of Council's delegate. If the Office had made such a direction it would amount to an exercise of its complaint handling functions (that is, the handling of complaints made against councils). Alternatively, it would amount to an exercise of its investigative functions, either pursuant to cl 8.1 of the Code Procedures or pursuant to s 430 of the LGA. In either case, I am satisfied that any such correspondence would relate to the complaint handling and investigative functions of the Office and would thus be excluded information. 2. The same analysis applies with respect to Category 2 which seeks government information passing between the Office and Council about how Mr Imbs reached his conclusion concerning Ms Styles' complaint. Any such information would relate to the investigative functions of the Office either pursuant to cl 8.1 of the Code Procedures or s 430 of the LGA and would therefore be excluded information. 3. Category 3 seeks information and "any substantive findings" in relation to the review of the handling of the complaint, which the Office carried out pursuant to cl 8.1 of the Code Procedures. This was an exercise of the Office's investigative functions and therefore any information sought under category 3 would relate to the Office's investigative functions, and would be excluded information 4. Category 4 seeks records in relation to how Mr Davies of the Office dealt with the request to the Office that the complaint be dealt with by a conduct reviewer. The Office's determination of the request amounts to an exercise of either its complaint handling or investigative functions and would therefore be excluded information. 5. The same analysis also applies to Category 5, which seeks information about the conclusion reached by the Office that it was open to Council to refuse to further deal with the complaint. Any information generated by the Office in relation to that conclusion would relate to the Office's complaint handling or investigative functions and would therefore be excluded information. 6. Category 6 seeks records and "any substantive findings or conclusions" made by the Office in relation to the complaint concerning Mr Taylor. Any information generated by the Office in relation to the complaint would relate to the Office's investigative functions concerning the activities of Council, or alternatively, would relate to the Office's handling of the complaint to the Office about the complaint to Council. In either case any information that responded to this category would relate to the complaint handling or investigative functions of the Office and would therefore be excluded information. 7. Category 7 seeks records or information about whether an Office staff member sighted Mr Imbs' delegation that empowered him to handle Ms Styles' complaint. Any sighting of that delegation would be an exercise of the Office's investigative functions under either cl 8.1 of the Code Procedures or s 430 of the LGA, and an information that responded to this category would relate to those investigative functions, and would therefore be excluded information.
For these reasons I am satisfied that all of the information sought in the access application was excluded information of the agency.
Ms Styles' submissions do not persuade me otherwise. To the extent that they are relevant I deal with them below.

Whether Ms Styles sought that the Office review Council's handling of the complaint

It was reasonable for the Office to infer from the request in Ms Styles' letter of 17 March 20223 for an "unbiased professional conduct reviewer" that she was dissatisfied with the Council's handling of the complaint and to treat the letter as a request under cl 8.1 of the Code Procedures.
In any event, whether or not Ms Styles sought a review under cl 8.1 is irrelevant. Clause 8.1 states that the Office may carry out a review "whether or not in response to a request". Thus the Office was entitled to exercise its functions under cl 8.1 to review Council's handling of the complaint, regardless of whether Ms Styles had asked it to do so.

Whether the Office's complaint handling investigative functions include powers under cl 8.1 of the Code Procedures

Ms Styles' says that the entirety of the Office's investigative functions are found in ss 429 to 434C of the LGA and that to the extent that information sought relates to an investigation done by the Office under cl 8.1 of the Code Procedures, it is not excluded information because it is not "information relating to the Office's complaint handling and investigative functions conferred by or under any Act on that department". I do not agree with this submission. Section 440AA of the LGA gives legislative effect to the Code Procedures, including the Office's investigative functions under cl 8.1 of the Code Procedures. Accordingly, information relating to an investigation under cl 8.1 of the Code Procedures is information relating to an investigative function conferred by the LGA on the Office, and is thus excluded information: Coppock v Willoughby City Council [2021] NSWCATAD 166 at [79(3)].

Whether cl 6(2) of Sch 1 to the GIPA Act applies

Ms Styles' submissions suggest that the Office was required to seek Council's consent to the disclosure of information pursuant to cl 6(2) of Sch 1 to the GIPA Act, and that there is no evidence of the Office having done so. Clause 6(1) states that before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.
Whether or not the Office sought Council's consent in this instance is not relevant because firstly, the information sought in the access application was the information of the Office, not the Council's information. Secondly, "excluded information" is defined by reference to functions of particular agencies listed in Sch 2 to the GIPA Act. The Council is not an agency listed in Sch 2. Therefore cl 6(2) of Sch 1 would have no application even if the information sought was Council's information.

Whether the principles in s 15 of the GIPA Act apply

Ms Styles says that applying the principles in s 15 of the GIPA Act, the Tribunal should determine that there is no overriding public interest against disclosure of the information sought in the access application. This submission is misconceived. The principles in s 15 of the GIPA Act apply only if an agency or the Tribunal is required to determine whether there is an overriding public interest against disclosure of information. For reasons expressed above, that is not the case here as there is a conclusive presumption against disclosure of the information sought by Ms Styles.

Whether personal information is capable of being excluded information under the GIPA Act

Ms Styles also submits that the information she seeks is her "personal information" (as defined in Sch 4(4) to the GIPA Act) and therefore cannot be excluded information. This submission is also misconceived. Firstly, the categories of information sought by Ms Styles seek much more than personal information. They seek, among other things, correspondence between the Office and Council and substantive findings about how the Office reached its conclusions with regard to Ms Styles' complaints.
Secondly, even if the access application was limited to personal information, such information would be capable of being excluded information. It is axiomatic that agencies such as the Office will from time to time collect personal information in the course of their complaint handling and investigative function. To the extent that such personal information relates to the complaint handling or investigative functions of the Office, it will be excluded information. There is nothing in the GIPA Act which exempts personal information in such circumstances from being categorised as excluded information.

Whether information which has been informally disclosed to the applicant is excluded information

Ms Styles says that the Office has now informally disclosed information sought in the access application and that such information therefore cannot be excluded information because the Office has consented to its disclosure.
Pursuant to clause 6(1) of Sch 1 to the GIPA Act "information that the agency has consented to the disclosure of" is not excluded information.
In this regard the respondent says that on or about 9 and 13 June 2023 the Office produced certain documents which Ms Styles had sought on an informal, without prejudice basis.
However, the fact that some of the information sought by Ms Styles may have been provided to her for a specified purpose or subject to some undertaking or restriction as to use (in this case on a without prejudice basis presumably for the purpose of attempting to resolve the dispute), could not constitute consent to the disclosure to the world under the GIPA Act: Beregi at [99].
Accordingly, the limited disclosure made by the Office does not disqualify the information sought from being excluded information.
I would add however that to the extent that Ms Styles has in fact received the documents she seeks, albeit on an informal, without prejudice basis, these proceedings would appear to lack any practical utility.

Conclusion

For all of these reasons I conclude that the access application was not a valid application for the purposes of s 43(2) of the GIPA Act because it was an application for access to excluded information of the Office.

Orders

Accordingly, the Tribunal makes the following orders: 1. The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The name of the respondent is changed to the Department of Planning and Environment. 3. The decision under review is affirmed.

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: 16 August 2023

At a glance

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Judgment (22 paragraphs)

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Legislation Cited (2)

Cases Cited (6)