Watson v NSW Trustee and Guardian

Applicable Legislation

1. Section 9(1) of the GIPA Act provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information, unless there is an overriding public interest against disclosure of the information.
2. Section 13 of the GIPA Act provides: There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
3. Section 14 of the GIPA Act addresses public interest considerations against disclosure. The section relevantly provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
4. Schedule 1 of the GIPA Act then sets out those classes of information for which there is a conclusive presumption of an overriding public interest against the disclosure. These relevantly include: 5 Legal professional privilege ... 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) 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. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
5. Schedule 2 lists a number of agencies and their functions to which the Schedule 4 definition of 'excluded information' applies. Clause 2 relevantly includes: Schedule 2 Excluded information of particular agencies Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. … 2 Complaints handling and investigative information ... The office of Ombudsman - complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993). ... The office of Legal Services Commissioner - complaint handling, investigative, review and reporting functions. ... 4 Other information The NSW Trustee and Guardian - functions exercised in the NSW Trustee and Guardian's capacity as executor, administrator or trustee.
6. Section 43 of the GIPA Act provides: 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (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.
7. In order to determine whether the withheld information is 'excluded information' it is necessary to determine whether the information 'relates to' a function specified in this Schedule 2.
8. The TAG contends that all documents falling within the scope of the access application relate to the functions of either the Ombudsman, the office of the Legal Services Commissioner, or the TAG as specified in Schedule 2.
9. The expression "relates to" has been considered in numerous decisions. The term has been held to be one of broad import: see Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111. This Tribunal has held that the concept of information "relating to a function" of an agency should be applied generously: see for example Miller v Director of Public Prosecutions [2012] NSWADT 38 at paragraphs [19] - [23], citing Cianfrano v NSW Ombudsman [2007] NSW ADT 273 and Raethel v Director-General, Department of Education & Training [1999]).
10. In DF v Director General, Attorney General's Department [2002] NSWADT 164, the Tribunal's President considered documents related to the DPP's prosecuting functions. The President noted at paragraph [9] that: "The applicant, as is usual in these cases, is faced with the difficulty that he can only make general submissions as to the applicability of the heads of exemption claimed for the documents. The documents have been supplied to the Tribunal as a confidential exhibit. The Tribunal has inspected the documents in light of the exemptions relied upon."
11. The President was satisfied that an advice to the DPP from the relevant Crown Prosecutor in relation to the conduct of a trial was "reasonably connected with the conduct of the 'prosecuting functions' of the DPP". in relation to the scope of the exemption his Honour then said: 23 The Tribunal is satisfied that it was a document of a routine kind prepared for the DPP in accordance with office practice where a particular type of outcome occurs in a criminal trial (here acquittal by direction). I am satisfied that the entire advice is reasonably connected with the conduct of the prosecuting functions' of the DPP, and is exempt from FOIA by virtue of s 9, Schedule 2, item (ii). 24 It is not necessary, in my view, in this case to attempt an exhaustive definition of the meaning of prosecuting functions' in order to reach that conclusion. This is not a document which might be said to lie at the boundary between the prosecution functions' and the FOIA-covered non-prosecution' functions of the Office. In the practice of criminal law, the term prosecution' refers to the conduct of criminal proceedings (see, for example, Osborn's Concise Law Dictionary, def. of prosecution'; Mozley and Whiteley's, Law Dictionary, def. of prosecution'.) Prosecution' in the context of Schedule 2, item (ii) refers at least to the conduct of criminal proceedings by the Director, his officers and other persons (such as private practitioners) engaged by him. 25 The `functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal). (The document contains references to individuals the release of which would, I am satisfied, involve the unreasonable disclosure of information concerning their personal affairs: cl 6(1). If this were the only ground relied upon, the document could be disclosed with appropriate deletions.)
12. In each case, the question is the extent to which the information in issue has a connection with the specified function.

The Issues for determination

1. Mr Watson has raised issues in relation to the TAG's handling of his complaint and contends that there is a lack of accountability in regard to TAG's actions. He has sought the information that is the subject of his access application to ascertain how the TAG handled his complaint.
2. As noted above, the TAG has undertaken searches to locate information that falls within the scope of Mr Watson's access application and has withheld the information that was located as a result of the search. Mr Watson has questioned the sufficiency of the search that was undertaken and has also challenged the determination that the information should be withheld.
3. As noted, the preliminary issue for determination is in regard to whether the withheld information is 'excluded information' for the purposes of the GIPA Act. This in turn requires consideration of the question of whether the Information relates to a function specified in Schedule 2 to the GIPA Act.

The Hearing

1. The hearing involved both open and closed sessions. Ms Day appeared at the open hearing and was cross-examined. Her evidence essentially addressed issues about the search that was undertaken to located information that falls within the scope of the access application.
2. A folder of documents containing the material that was located by the search was provided to the Tribunal on a confidential basis ("the confidential material"). The closed session ("the confidential hearing") addressed the confidential material to determine whether or not that material is 'excluded information' for the purposes of the GIPA Act. The confidential hearing was held in Mr Watson's absence and I have explained to him that he will not have access to the parts of these reasons that address the confidential material.
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13. I note that the TAG has agreed to release some of the withheld information informally. The extent to which it is prepared to release information informally is a matter for the TAG. As noted above, a decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5 of the GIPA Act.
14. Given the volume of the withheld information and the comments that I have made in the paragraphs above concerning the confidential material it is my view that it is appropriate that the TAG have the opportunity to reconsider its determination.
15. Section 65 of the Administrative Decisions Review Act 1997 provides: 65 Power to remit matters to administrator for further consideration (1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator. (2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a new decision in substitution for the decision set aside. (3) If the administrator varies the decision: (a) the application is taken to be an application for review of the decision as varied, and (b) the person who made the application may either: (i) proceed with the application for review of the decision as varied, or (ii) withdraw the application. (4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside: (a) the application is taken to be an application for review of the new decision, and (b) the person who made the application may either: (i) proceed with the application for review of the new decision, or (ii) withdraw the application.
16. I propose to allow the TAG a reasonable amount of time to undertake the redetermination and for Mr Watson to consider his position after he is served with a copy of the new determination. If the matter is not otherwise resolved it will need to be relisted to determine its future progress.

Order 1. The matter is remitted for redetermination pursuant to section 65 of the Administrative Decisions Review Act 1997. 2. The redetermination is to be completed within 28 days of the date of this decision. 3. The matter is listed for further directions at 9.30 am on 4 August 2015. 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: 06 July 2015