The applicant, Telina Webb, made an application for access to government information from the respondent on 21 March 2022 pursuant to the Government Information (Public Access) Act 2009 (GIPA Act). The respondent determined that it did not hold certain information requested that was responsive to her request and Ms Webb requested a review of this decision. On 12 December 2023 the Tribunal remitted the matter for reconsideration.
The respondent made a further decision in respect of the matter on 23 January 2024. This is the decision that Ms Webb now seeks to review. The respondent refused to provide to the applicant unredacted copies of certain information, being information which disclosed the mailing list of the NSW Information and Privacy Practitioners Network (the Network), finding that there was an overriding public interest against disclosure. The mailing list comprises the names and email addresses, including personal email addresses, of members of the Network. In summary, the respondent found that the mailing list comprised the "personal information" of the members of the Network and that this was a public interest consideration against disclosure. In balancing the public interest, the respondent gave significant weight to the fact that the information was personal information and found that there was a public interest against disclosure of the names and contact details of the members.
Ms Webb sought review of this decision by the Information and Privacy Commissioner (IPC) within the required time. There is no dispute about this.
By letter dated 21 June 2024 the IPC notified Ms Webb that it did not have jurisdiction to review the matter by reason of s 98 of the GIPA Act.
By email dated 7 July 2024, Ms Webb wrote to the Registrar of the Tribunal, enclosing a copy of the letter from the IPC and she requested details as to whether she was required to lodge at administrative review application or a miscellaneous application. The Tribunal responded by email dated 15 July 2024 to the effect that if she wished to seek a review of the decision of the IPC, she would need to file at administrative review application.
Ms Webb filed an application for review on 21 August 2024.
Section 101(1) of the GIPA Act provides that an application for administrative review must be made within 40 working days after notice of the decision to which the review relates. Section 101(2) provides if the decision is subject to review by the Information Commissioner, an application for review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review. Section 101(4) provides that the Tribunal may, on the application of a person wanting to make an application for administrative review out of time, extend the time for the making of such an application by the person if the Tribunal is of the opinion that the person has provided a "reasonable excuse for the delay" in making the application.
According to the respondent, the Information Commissioner did not review Ms Webb's application and, as such, the time for filing the application for review was 40 days after the initial decision, namely on a before 20 March 2024. However, the respondent also submitted that was accepted Ms Webb had a reasonable excuse for not making her application for review in the period in which she understood there was a review by the Information Commissioner pending. In the normal course, if the Information Commissioner had made a decision, Ms Webb would have been required to file any application for review within 20 working days, namely on or before 19 July 2024.
Ms Webb filed her application approximately 145 days after the decision she is seeking to review was made and 44 working days after the date of the Information Commissioners notification. Accordingly, there is no dispute that Ms Webb filed her application for review outside the period allowed under ss 101(1) or 101(2) of the GIPA Act. As such, Ms Webb needs an extension of time to proceed with the application for review. This was raised at the directions hearing before the Tribunal on 9 September 2024.
In Turner v Commissioner of Police NSW Police Force [2014] NSWCATAP 4, the Appeal Panel (per Deputy President Hennessy) held that s 101 of the GIPA Act set out the time limits for making applications for review and s 101(4) provides that the only matters that can be considered by the Tribunal are those in the subs (4), namely if the Tribunal is of the opinion that the person making the application has provided a "reasonable excuse for the delay". Other considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant, and the Tribunal therefore erred by taking these other matters into account (at [18]).
Ms Webb told the Tribunal that she was aware she had to file an application after receiving the Tribunal's email on 15 July 2024 but that she had just not got round to it and this was unusual for her because she always was able to meet Tribunal timetables. Ms Webb, to her credit did not seek to embellish the reasons for her delay, and she conceded that the application was delayed and that there was no reason other than "life had got in the way".
In her written submissions, Ms Webb referred to Copeland v Commissioner of Police, NSW Police Force [2023] NSWCATAD 40 where the Tribunal extended the time to make an application where the application was lodged nearly a year after the internal decision was made. In that case, the decision under review was the decision made by the respondent to refuse to issue Mr Copeland a firearms licence. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) gives the Tribunal a broad and unfettered discretion to extend time. The Tribunal considered the exercise of this discretion and, in applying the decision in Jackson v NSW Land and Housing Corporation [2024] NSWCATAP 22, noted that relevant matters to considered in the exercise of the discretion would be: the length of the delay, the reasons for the delay, the prospects of success and the extent of any prejudice suffered by the parties. In that case, the Tribunal found that the delay, while substantial, it was not inordinate, and noted that Mr Copeland had provided a detailed explanation for the delay which the Tribunal accepted was reasonable (at [26]) The Tribunal considered the other matters set out in Jackson and decided to exercise the discretion in Mr Copeland's favour.
As already noted, the GIPA Act sets out the circumstances when the Tribunal may extend time and provides that the Tribunal can exercise the discretion to extend time, it must form the opinion that the person seeking the extension has provided a reasonable excuse for the delay. Section 101 of the GIPA Act provides specific timing for the filing of applications for review. It also envisages that a party may not be able to file an application within that period and allows the Tribunal to extend time but only after it has formed an opinion about whether or not the excuse provided for the delay is reasonable. Relevantly, s 101(4) gives the Tribunal discretion, but that discretion is based on the Tribunal forming an opinion about the excuse for delay being reasonable and it is not as broad and unfettered as s 41 of the CAT Act.
Based on the explanation provided by Ms Webb, I am not able to form the requisite opinion that there is a "reasonable excuse for the delay". Ms Webb cannot point to any reason other than she did not get around to it and while I have sympathy for her position, I must form an opinion that the excuse for the delay is "reasonable" before I can extend time under s 101(4) of the GIPA Act. Ms Webb has provided an excuse, but I am not satisfied that this is "reasonable". There needs to be a reason which, in this case, is to the effect that she was not able to get around to it. In my opinion, this is not reasonable given it is clear from ss 101(1) and (2) that there are time limits imposed.
I therefore refuse the application under s 101(4) of the GIPA Act for an extension of time and the application for review is dismissed.
[2]
Orders
I make the following orders:
1. The time for the filing of the application for review is not extended.
2. The 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
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Decision last updated: 10 December 2024