Webb v Port Stephens Council

NCAT Administrative and Equal Opportunity|2025-01-31

The GIPA Application

Telina Webb (the Applicant) applied to Port Stephens Council (the Council) under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) on 8 May 2024 (the GIPA Application), asking for the following information: This Formal Access Application requests a full and unedited copy of the documents attached to Tony Wickham's false and misleading letter to an Investigating Officer of the Office of the NSW Information & Privacy Commissioner, dated 17th March 2015
Mr Wickham was the General Manager of the Council.
The "letter" dated 17 March 2015 referred to in the request was actually an email of the same date. The Applicant had a copy of the email (but not the attachments), because she sent it to the Council on 31 May 2024 when they asked for clarification. The Applicant says (AS[38]) that the covering email was provided unredacted and in full to the Applicant by the Council's solicitor in July 2018. In any event, the email itself was not requested under the GIPA Application.

Background to the 17 March 2015 email

In 2015, Paul McEwan (the Applicant's husband) lodged a complaint about the Council with the Information and Privacy Commission (IPC). The complaint was about actions of the Council relating to another information request.

The Decision

On 23 March 2024, Sarah Rose (the Governance Officer for the Council) wrote to the IPC regarding the GIPA Application. The email said: Council has received an application to access information under the [GIPA Act]. As the access application requests information that is considered excluded information of your agency under schedule 2 section 2 of the GIPA Act, Council must consult with you to ascertain whether you consent or refuse to consent to the disclosure of this information. Please see attached the information requested and below the relevant provisions for your consideration. … Council requires your written response by no later than 30 May 2024.
On 28 May 2024, the Right to Information Officer at the IPC responded: Good Morning Sarah, Thank you for your email and consultation request. Our response is that the IPC does not consent to the disclosure of the attached information as we believe it is excluded information as it relates to the review and complaint functions of the Office of the Information Commissioner.
The Council (via its Governance Officer) issued its decision on the GIPA Application to the Applicant on 4 June 2024 (the Decision), saying: I am authorised by the principal officer, for the purposes of section 9(3) of the GIPA Act, to decide your access application. I have decided, under section 58(1)(d) and Schedule 1 section 6(1) of the GIPA Act, to refuse to provide access to the information due to the conclusive presumption that there is an overriding public interest against disclosure of the information. 1. The Decision was to refuse to provide access to the information due to the conclusive presumption that there is an overriding public interest.
The Decision included reasons for this conclusion. It also included processing charges totalling $67.50, set out in a Table of Processing Charges as follows: Date Action Time spent Cost 09.05.2024 Receipt of application 0.25 $0.00 09.05.2024 Receipt raised 0.25 $0.00 13.05.2024 Receipt raised 0.25 $0.00 13.05.2024 Searches conducted by Legal Services 0.25 $7.50 15.05.2024 Searches conducted by Governance 0.25 $15.00 15.05.2024 Clarification of scope sought from applicant 0.25 $0.00 23.05.2024 Third party consultation 0.50 $15.00 Various Drafting and producing the Notice of Decision - Reviewing and applying the relevant sections of the GIPA Act 2.00 $60.00 Total hours 4.25 Total hours to be charged 3.25 $97.50 TOTAL hours to be charged excluding the first hour of processing 2.25 $67.50

The Decision said that the Applicant could request an internal review of the Decision, or a review by the IPC or by the Tribunal.

Request for external review and referral by IPC to the Tribunal

On 4 June 2024, the Applicant emailed the IPC requesting an external review of the Decision. It was accompanied by a four page letter setting out the grounds for the review.
On 23 August 2024, the IPC wrote to the Tribunal advising that, due to a perceived conflict of duties caused by the IPC being involved in "3rd party consultation", it had determined to refer the application for external review by the Information Commissioner to the Tribunal in accordance with section 99 of the GIPA Act which provides: The Information Commissioner may, with the consent of the applicant for review, refer a decision of an agency that is the subject of a review by the Information Commissioner under this Division to NCAT for an administrative review.
The letter noted that the Applicant provided consent on 21 August 2024 to the referral to the Tribunal.

Determination on the papers

The parties consented to this matter being determined on the papers, and orders were made by the Tribunal on 26 November 2024 dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
I am also satisfied that the matter can be adequately determined on the papers. Under s 50(4) of the NCAT Act, I have had regard to the following materials before the Tribunal: 1. The referral letter dated 23 August 2024 from the IPC to the Tribunal, with attachments (receipt of which was allocated Case number 2024/00315254 for these proceedings); 2. For the Applicant - written submissions dated 31 October 2024 (AS); 3. For the Respondent - written submissions filed on 11 November 2024 (RS), a statement of Sarah Rose dated 14 October 2024, and "Confidential Materials" comprising the Attachments.

Jurisdiction

In conducting this review, the Tribunal is exercising its administrative jurisdiction. It is not, as submitted by the Applicant (AS at [25]-[28]), exercising its general jurisdiction.
The administrative review jurisdiction of the Tribunal is conferred under s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 30 of the NCAT Act.
The "enabling legislation" is, nonetheless, the GIPA Act. And the administrative review jurisdiction is limited to the categories of "reviewable decisions" set out in s 80 of the GIPA Act. Here, the reviewable decision for my consideration is the decision to refuse to provide access to information (the Attachments) in response to an access application (s 80(e)).
The Applicant also requested a review of the processing charges. That formed part of the grounds advised to the IPC when the request for external review was lodged. The decision to impose a processing charge is a reviewable decision under s 80(j) of the GIPA Act.
The onus of proof is on the Respondent in GIPA Applications: s 105 of the GIPA Act.

The legislation

The objects of the GIPA Act as set out in s 3 are to open government information to the public: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 9 of the GIPA Act (relevantly) provides as follows: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
This also means, as is apparent from the words, that the Applicant has no legally enforceable right to be provided with access to information if there is an "overriding public interest against disclosure of the information". This requires consideration of the following provisions in s 14, and in Schedules 1 and 2, of the GIPA Act: 14 Public interest considerations against disclosure (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. … Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure … 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. … 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 Information Commissioner - review, complaint handling, investigative and reporting functions.
Accordingly, if the information sought relates to a function specified - being either a review function, complaint handling function or investigative function in relation to "[t]he office of the Information Commissioner" (the IC excluded information ground), it will be "excluded information of an agency".
In that situation, if consent to its release has been sought from that office under cl 6(1) of Schedule 1, and not granted, there is a conclusive presumption against disclosure under s 14 of the GIPA Act, and there is no legal right to disclosure under s 9(1).
For completeness, I note that the Applicant's GIPA Application was made to the Council. Accordingly, s 43 of the GIPA Act does not apply.

"The office of Information Commissioner"

The "IC excluded information ground" in Schedule 2 does not refer to the IPC. Rather, it refers to "[t]he office of Information Commissioner". However, it has recently been clarified b the Appeal Panel of this Tribunal, in Jeray v Information and Privacy Commission [2024] NSWCATAP 239 that they are, relevantly, the same. In summary, the Appeal Panel said at (see [137]ff) that: 1. The IPC is a Public Sector Agency for the purposes of the GIPA Act; 2. The Information Commissioner is an individual appointed by the Government Information (Information Commissioner) Act 2009 (NSW) (IC Act), and is supported by staff employed in the IPC, including the Right to Information Officer; 3. The "Office of Information Commissioner" is not to be regarded as a legal entity, and it is not an agency (having ceased to exist as a legal entity in 2010); 4. The reference to the "office of Information Commissioner" in cl 2 of Sch 2 of the GIPA Act merely identifies functions of the IPC by reference to which a kind of excluded information is described for the purposes of the GIPA Act.
In this case, the Right to Information Officer at the IPC was the recipient of the 17 March 2015 email from the Council which included the Attachments.

The requested information "relates to" a function listed in the IC exclusion ground

The Information Commissioner's functions are conferred, and governed, by the IC Act. Complaints may be made to the Information Commissioner about the conduct (including action or inaction) of an agency such as the Council in the exercise of functions under an "Information Act", including conduct that is alleged by the complainant to constitute a contravention of such an Act: IC Act, s 17. The GIPA Act is an "Information Act" for these purposes: IC Act, s 3(1). The Information Commissioner may determine the procedures to be followed in exercising those its functions: IC Act, s 15.
As noted in Jeray at [141]-[143]: 139 The focus of the debate between the parties was on whether intervention decisions of the Information Commissioner are "review" functions within the meaning of the IC excluded information ground. However, this focus is too narrow. It is incorrect to construe the ground in the abstract. The ground has no substantive operation of its own. It merely enlivens the definition of "excluded information" in cl 1 of Sch 4 to the GIPA Act, which provides as follows: "excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency." 142 It is significant that the expression "relates to" is used in the definition to connect the information with a specified function. In Beregi, the Appeal Panel considered the meaning of excluded information concerning information relating to the specified functions of the Office of Local Government (OLG). The Appeal Panel observed at [77]: "We consider that the term 'relates to', as it is used in the definition of 'excluded information' in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament's intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to 'open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure' (GIPA Act, s 3(1)(c)). The use of the term "relates to" indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG's complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2)." 143 Ultimately, the question in each case is the extent to which the information in issue has a connection with the specified function: Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [16].
The case of Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 (Beregi), which was cited with approval in Jeray, found that information connected to a public inquiry held under s 438 of the Local Government Act 1993 was "excluded information" as it "related to" the complaint handling and investigative functions of the Office of Local Government (OLG) under Schedule 2 of the GIPA Act. In that case, the information found to fall within the scope of the exemption included (at [28]): … details of the complaints; information provided by Mr Howard about complaints which had been dealt with by OLG; submissions and file notes prepared by OLG staff containing their observations of Council meetings prepared as part of the process of ascertaining whether various complains should be investigated; notes of confidential conversations between OLG staff and persons from or related to Council; documents which were generated as part of the OLG investigation of the complaints' responses to requests from Mr Howard for information relating to matters the subject of the public inquiry…
[NOT FOR PUBLICATION]
Against the background of the Tribunal's decision in Beregi, I therefore find that the facts above establish that the requested information in this case "falls squarely" within the exclusion. The information sought relates to the review and/or complaint functions of the office of the Information Commissioner for the purpose of cl 2 of Sch 2 of the GIPA Act, and is "excluded information of an agency" for the purpose of cl 6(1) of Sch 1 of the GIPA Act (excluded information).

No Consent by the IPC

As required by cl 6(2) of Sch 1, the Council asked the IPC (before deciding the access application) whether the IPC consented to disclosure of the excluded information.
The IPC refused to consent to the disclosure of the excluded information: Statement of Sarah Rose at [15] (Annexure D).

Conclusion - conclusive presumption against disclosure

Accordingly, the requirements of cl 6(1) of Sch 1 of the GIPA Act were satisfied, and it "is to be conclusively presumed that there is an overriding public interest against disclosure" of the requested information, being the Attachments.
The conclusive presumption, by reason of cl 14 of the GIPA Act, means that the correct and preferable decision is that the GIPA Application should be refused.

Other arguments raised by the Applicant

Based on my consideration above, for the purposes of the "IC exclusion ground", the information the subject of the GIPA Application does not need to originate from the IPC, contrary to the Applicant's submissions at AS [60].
The release of other information to the Applicant, under other circumstances and/or other formal or informal applications to the Council, is not relevant to my consideration.
Many other sections raised by the Applicant in her submissions are irrelevant: e.g.: 1. Section 59 of the GIPA Act: This section is not relied upon by the Council. The reference in s 59(1)(d) to "the applicant has already been provided with access to the information" is a reference to a previous provision of the requested "government information" to the Applicant by the Council. That has not occurred. 2. Section 43 of the GIPA Act: This section does not apply, because the access application was made by the Applicant to the Council, and not to the IPC. 3. Section 54/54A of the GIPA Act: The asking of the IPC for consent was made under cl 6(2) of Sch 1, and was not a third party consultation under s 54 or s 54A. It is therefore not necessary to consider those provisions. 4. Section 49 of the NCAT Act: There is no relevant order under s 49(2) of the NCAT Act because this matter is being determined on the papers. 5. Section 50 of the NCAT Act: There has been no application for costs made by either party.
I also reject: 1. the Applicant's reliance on "the Respondent's original dealing with the covering email" (AS [38]-[47]), and any alleged contradiction; 2. the Applicant's submissions regarding the "failure" of the Council to release requested information which constitutes the personal information of the Applicant (AS at [64]-[65]). I accept the Council's submissions at RS [35]-[38]; the conclusive presumption against disclosure disposes of the matter regardless of whether personal information may be involved.
It is unnecessary to deal further in these reasons with the detail of the Applicant's submissions and assertions which are of no relevance: see Edwards v State of New South Wales [2022] NSWCA 187 at [58], citing Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]; Secretary of the Department of Planning, Industry and the Environment v Blacktown City Council [2021] NSWCA 145 at [26].

Processing Charges

A decision to impose a processing charge is a reviewable decision under s 80(j) of the GIPA Act.
The request by the Applicant for external review by the IPC (which was referred to the Tribunal) included the following statement: I also expect the Commissioner to review the outrageous costs claimed by Council, particularly when it has made clear it is charging for delivering nothing which can only be construed as deliberately punitive. In particular, any government clerk using up (2) two hours of time to collate a mostly copied-and-pasted document is clearly absent of the necessary skills for this particular role and the public should not be financially penalised for that. Likewise the third party consultation is disqualified and should not be automatically charged by default.
The Applicant's submissions (said at AS [138] to form "the whole of the Applicant's submissions in this matter") stated (at [64]-[68] and [137]): The Respondent has failed to properly identify that some of the requested information constitutes the personal information of the Applicant. Likewise those documents concerning the personal information of the Applicant are able to be released in full as they have not been previously requested. As such the Respondent failed to acknowledge or give consideration to the fact 'the first 20 hours of a request for information concerning personal information are not chargeable', terminology contained within the [Council's] mandatory Access to Information Guide. The Respondent also failed to release the personal information of the Applicant to the Applicant. Again, the Respondent picks and chooses what charges to impose at any given time without any degree of consistency or proper application of the legislation. … Additionally, the Applicant says the Respondent has wrongfully calculated the processing charges as some of the information is personal information of the Applicant and is exempt from any such charges.
Division 5 of the GIPA Act sets out the processing charges relating to an application for access made under that Act.
Processing charges may be imposed 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.
The Applicant appears to be relying on s 67 of the GIPA Act which provides: 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.
Having regard to the information sought, and having reviewed that information, I am not satisfied that the application was "for personal information about the applicant", being Ms Webb. Accordingly, s 67 does not apply.
There is a general discretion to waive a processing charge under s 127, but there is no evidence, nor cogent submissions, as to why the processing charges should be waived under this section.
In respect of other provisions in the GIPA Act, I am not satisfied that there is any request for, or basis for, a reduction on the grounds of financial hardship under s 65, nor in respect of special public benefit under s 66. Nor was an advance deposit sought by the Council under s 68.
The IPC's Guidelines in respect of processing charges for GIPA Applications (Information Access Guideline 2 - Discounted Processing Charges) includes the following statement: 3.8 The processing charge covers the total amount of time that it takes an agency to deal efficiently with the application and to provide a response to the application. This includes time expended to consider the application, searching for records, consulting any third parties, and making a decision.
As set out at paragraph 10 above, the total cost charged by Council was $67.50. In accordance with the scheme of the legislation, as explained by SM Lucy in National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 at [26]-[35], that was a decision to impose a processing charge, which would only be made when (or after) the decision on the application was made. The correct hourly rate of $30 was applied, and a credit was given for the application fee. Those charges were permitted under, and consistent with, s 64 of the GIPA Act. I do not find that the time charged was excessive, unreasonable, or inefficient, or otherwise contrary to the Guidelines. Having regard to the above, and also being mindful of the guiding principle of the Tribunal, the correct and preferable decision is that the decision to impose processing charges of $67.50 is affirmed.

Orders

I make the following orders. 1. The decisions of the Council (Respondent) are 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: 31 January 2025

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)