This is an application for administrative review of a decision of Wollondilly Shire Council concerning an application for access to information made by Ms Styles under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
Specifically, the matter I am required to decide concerns a decision by the Council to impose a processing charge prior to the release of information to Ms Styles.
For the reasons that follow, I have decided to set aside the decision of the Council to impose a processing charge.
[2]
Background
In March 2023, Ms Styles lodged "Code of Conduct" complaints with the Council in relation to two of its staff members - Mr Taylor and Mr Buckley (the complaints). I have not been provided with copies of the complaints but I understand they relate to statements made in the media by Mr Taylor and Mr Buckley in relation to Ms Styles, which Ms Styles claims were "false and misleading media statements".
On or about 21 March 2023, a Council staff member, Mr Imbs, wrote to Ms Styles in response to the complaints. I have not been provided with a copy of that correspondence, but it is common ground that the complaints were dismissed by the Council and that the Council determined that the complaints were "frivolous and vexatious and not made in good faith".
On 22 March 2023 Ms Styles lodged an application with the Council under s 9(1) of the GIPA Act (the access application) seeking access to the following information:
… all file notes, memos, messages and records of meetings between the Mayor Matt Gould and any other person in waiving his delegations to Eric Imbs between 1 March to the current date (22 March 2023).
… all file notes, memos, messages and records of any meetings between CEO Ben Taylor and Eric Imbs and any other person dealing with my Code of Conduct Complaint against the CEO Ben Taylor dated 13 March 2022 to the current date (22 March 2023) dealing with false and misleading media statements made by or for Ben Taylor (about Lynette Styles).
… all file notes, memos, messages and records of any meetings between Eric Imbs and Peter Buckley and any other person dealing with my Code of Conduct Complaint against Peter Buckley dated 10 March dealing with false and misleading media statements made by or for Peter Buckley about [the applicant] to the current date (22 March 2023).
… all information on which Eric Imbs determined his assessment pursuant to Part 5 of Council's adopted Procedures for the Administration of the Code of Conduct to determine that my Code of Conduct complaint against Ben Taylor and Peter Buckley was "frivolous and vexations and not made in good faith," as identified in his letters to [the applicant] dated 21 March 2022. Ref: 12226-562#205 and 12226-562#306.
On 19 April 2023 the Council issued a "Notice of Decision" under the GIPA Act (the decision). In the decision the Council informed Ms Styles that it had decided to release information sought by her in part, and that prior to releasing that information she would be required to pay a processing charge of $112.50 for the time spent dealing with the access application. The decision also stated that the Council had decided not to include information about the access application in the disclosure log maintained by the Council under s 25 of the GIPA Act.
On 28 April 2023 the applicant lodged this administrative review application with the Tribunal seeking review of the following aspects of the decision:
1. The decision to refuse to provide access to information;
2. The decision to impose a processing charge; and
3. The decision not to include information the subject of the Access Application in the Council's disclosure log.
Following a case conference on 22 May 2023, the Tribunal made procedural directions for the parties to exchange evidence and submissions regarding the decision to impose a processing charge only.
At the end of the procedural directions the Tribunal noted as follows:
1. in relation to the first aspect of the Tribunal application (the decision to refuse access in part to information), the application was premature "as the applicant has not been provided with access to any of the information for which there was a decision to grant access. Until she does receive that information, she is not in a position to seek review".
2. in relation to the third aspect of the Tribunal application (the decision not to include information the subject of the Access Application in the respondent's disclosure log) this was not a decision which the Tribunal has jurisdiction to review under the GIPA Act.
Accordingly, the only substantive issue I must consider in this decision is the administrative review of the decision to impose a processing charge.
[3]
Hearing on the papers
On 22 May 2023 the Tribunal recorded that the parties consented to the Tribunal dispensing with a hearing in relation to the review of the decision to impose a processing charge and stated that the Tribunal was satisfied that the issues for determination could adequately be determined in the absence of the parties by considering any written submissions or other documents or material lodged with or provided to the Tribunal.
Neither party has since withdrawn their consent to a hearing being dispensed with, and nothing in the parties' respective submissions causes me to have a different view to that expressed by the Tribunal on 22 May 2023. I am satisfied that the administrative review of the decision to impose a processing charge can be adequately determined in the absence of the parties by considering their respective written submissions, 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).
[4]
Materials considered
In making this decision I have considered:
1. The application filed in the Tribunal on 28 April 2023 which attaches a copy of the Notice of Decision;
2. The procedural directions made by the Tribunal on 22 May 2023;
3. The written submissions lodged by the respondent on 8 June 2023;
4. The written submissions lodged by the applicant on 16 June 2023;
5. The written submissions in reply lodged by the respondent on 22 June 2023; and
6. A sealed envelope lodged by the respondent on 8 June 2023 containing a bundle of confidential non-disclosure documents.
[5]
Jurisdiction of the Tribunal
Pursuant to s 55 of the Administrative Decision Tribunal 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 to impose a processing charge is a reviewable decision: GIPA Act s 80(j). There is no dispute that the Council is an agency for the purposes of the GIPA Act.
Accordingly, the Tribunal has jurisdiction to hear and determine this application.
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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).
[7]
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.
Division 5 and Part 4 of the GIPA Act regulates processing charges imposed by agencies. The relevant provisions are as follows:
64 Processing charge for dealing with access application
(1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.
Note -
The decision to impose a processing charge is reviewable under Part 5.
(2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in -
(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or
(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).
(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.
(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.
(5) A processing charge must not be discounted under section 65 or 66 by more than 50% even if both sections apply.
65 Discounted processing charge - financial hardship
(1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the applicant is suffering financial hardship.
Note -
The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64.
(2) The agency may refuse to allow the discount if satisfied that the applicant is making the application on behalf of another person in order to obtain the discount for that person.
(3) The regulations may prescribe circumstances that constitute financial hardship.
Note -
A decision to refuse to reduce a processing charge is reviewable under Part 5.
66 Discounted processing charge - special public benefit
(1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally.
Note -
The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64.
A decision to refuse to reduce a processing charge is reviewable under Part 5.
(2) If the information applied for was not publicly available at the time the application was received but the agency makes the information publicly available either before or within 3 working days after providing access to the applicant, the applicant is entitled to a full waiver of the processing charge imposed by the agency.
(3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.
67 Waiver of processing charge for personal information application
If an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.
Note -
This does not limit an agency's power to reduce, waive or refund processing charges under section 127.
[8]
The evidence and submissions
The Council relies on a statement of Alexandra Roberts who is employed as a Data and Access Information Management Coordinator within the Council's Customer, Information and Technology Division. She has been employed by the Council since 2019. Ms Roberts was the decision maker on behalf of the Council in relation to Ms Styles' Access Application.
The Council's notice of decision contains the following breakdown of the processing charges imposed by the Council:
Item Time Spent Cost
Searches for records and information 1 hour $30.00
Internal consultation 1 hour 15 minutes $37.50
Collation and review of information 1 hour $30.00
Notice of Decision 1 hour 30 minutes $45.00
Subtotal: 4 hours 45 minutes $142.50
Discount (first hour of processing) -$30.00
TOTAL: $112.50
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The Council says in its submissions:
1. Ms Styles has not produced any evidence of financial hardship which would entitle her to a discount under s 65 of the GIPA Act.
2. Council has formed the view that due to the nature of the information being in relation to a complaint made by Ms Styles against the Council, it is not satisfied that the information is of special benefit to the general public and therefore the applicant is not entitled to a discount under s 66.
3. The information sought by Ms Styles is not personal information about her and therefore she is not entitled to a discount under s 67.
4. Ms Styles has not provided any evidence to suggest that the Council did not spend the length of time referred to in the Notice of Decision dealing with the Access Application.
5. The charge imposed by Council is reasonable and appropriate.
6. There is no basis for Council to waive its entitlements to a processing charge under the GIPA Act.
Ms Styles has not provided any evidence in support of her application. Her lengthy written submissions contain a number of arguments which are not relevant to the administrative review of the decision to impose the processing charge and it is not necessary for me to repeat those points in this decision.
To the extent that Ms Styles' submissions are relevant to the review of the decision to impose the processing charge, they largely focus on the assertion that the information sought in the Access Application includes personal information about Ms Styles and that therefore under s 67 of the GIPA Act, Council was not entitled to impose any charge for the first 20 hours of processing time for the Access Application.
Ms Styles also submits that the information sought in the access application is of special benefit to the public and that under s 66 of the GIPA Act she is entitled to a discount on any processing charge. She says the information is relevant "in exposing legal expenses amounting to $29,977.32 which public executives publicly claimed was 'Fake News'" and that "the special benefit to the public is factual information, not wilfully false and misleading information to protect the organisation from public criticism."
Ms Styles further asserts that the time taken by Council to respond to the Access Application was not reasonable in the circumstances.
[10]
Personal Information
The term "personal information" is defined in cl 4 of Sch 4 to the GIPA Act as follows:
4 Personal information
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following -
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
The information sought in the access information relates mainly to the Council's internal correspondence regarding the applicant's complaints, as well as, importantly, information which formed the basis of the Council's determination that the complaints were "frivolous and vexatious and not made in good faith". In substance, a key purpose of the access application was to obtain information explaining how the Council determined that Ms Styles' complaints against Mr Taylor and Mr Buckley were "frivolous and vexatious and not made in good faith".
The Council says that the determination that the complaints were frivolous and vexatious and not made in good faith "does not express an opinion about the Applicant herself and is not considered to be personal information under the Act".
I do not agree.
The term "vexatious" means "instituted or taken without sufficient grounds, purely to cause trouble or annoyance to the defendant": Oxford English Dictionary (Oxford University Press, 2022). The term "in good faith" is defined in the same publication to mean "in the sincere belief that what one is doing is right or correct; with honesty or sincerity of intention".
Thus, a determination that a complaint is vexatious, and was not made in good faith, does not merely relate to the substantive merits of the underlying complaint. It necessarily involves an assessment of the complainant's motives and beliefs regarding the complaint, and his or her conduct in making it. It relates to the complainant's integrity and honesty. Accordingly, it involves information or an opinion about the complainant.
Ms Styles made an access application seeking information explaining how Council reached its determination that her complaints were frivolous and vexatious and not made in good faith. The information to which Ms Styles seeks access is therefore personal information about her as it is "information or an opinion … about an individual ... whose identity is apparent or can reasonably be ascertained from the information or opinion".
Accordingly, the provisions of s 67 of the GIPA Act apply and Council is not permitted to impose a charge for the first 20 hours of processing time for the access application.
As Ms Styles has been levied for only four hours and 45 minutes of processing time, the provisions of s 67 apply to require the Council to waive the entire processing charge.
[11]
Other issues
As I have concluded that the entire processing charge should be waived, it is not necessary for me to consider Ms Style's other arguments in favour of waiver of the processing charge.
[12]
Conclusion and Orders
The correct and preferable decision is that the decision by the Council to impose a processing charge on 19 April 2023 be set aside.
I therefore make the following orders:
1. A hearing is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.
2. The decision by the Council to impose a processing charge on 19 April 2023 is set aside.
[13]
Next steps
As mentioned earlier in these reasons, in the procedural directions made on 22 May 2023, the Tribunal noted that the application for review of the decision to refuse access (in part) to information for which access is sought is premature as Ms Styles has not yet been provided with access to any of the information for which there was a decision to grant access.
It is open to Ms Styles to bring a fresh application in the Tribunal if, after receiving and reviewing the information for which access has been granted, she remains of the view that the Council's decision to refuse access (in part) should be reviewed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 07 July 2023