Zonnevylle v Department of Justice

NCAT Administrative and Equal Opportunity|2018-05-14

REASONS FOR DECISION

On 26 June 2017 the Department of Justice (the Department) received an application from Mr Peter Zonnevylle under the Government Information (Public Access) Act 2009 (GIPA Act). Mr Zonnevylle sought access to a range of documents held by the Department, the Crown Solicitor's Officer and this Tribunal. There followed correspondence between the Department and Mr Zonnevylle about the scope of his access request. Mr Zonnevylle was advised by the Department that it may refuse to deal with his access application under s 60(1)(a) of the GIPA Act, if dealing with the application would require and unreasonable and substantial diversion of resources. As a result, on 24 August 2017 a reduced scope was agreed upon.
On 24 August 2017 the Department sent a letter to Mr Zonnevylle asking him to pay an advance deposit of $517.50 for a processing charge based on the Department's estimate of the time required to process the reduced scope application. Mr Zonnevylle was required to pay the deposit by 28 September 2017.
On 4 October 2017 the Department decided to refuse to deal further with Mr Zonnevylle's access application because he had not paid the advance deposit within the required time. On 11 October 2017 Mr Zonnevylle lodged an application for review with the Tribunal. Various directions about the conduct of the proceedings were made and a request by Mr Zonnevylle for certain summonses to be issued was refused.

Preliminary issues

At the beginning of the hearing Mr Zonnevylle requested that he be permitted to record the hearing on a personal recording device. He referred to s 9 of the Court Security Act 2005 which permits proceedings to be recorded by a person if such recording is expressly permitted by a judicial officer. Mr Zonnevylle put forward a number of reasons why he should be permitted to record the proceedings, including that there have been credible complaints of official recordings being lost or tampered with and that he had received a poor quality recording in the past.
I refused Mr Zonnevylle's request, on the basis that I was not satisfied that any of the reasons he put forward for why he should be permitted to record the hearing on his personal device warranted a departure from the Tribunal's usual practice and from the general prohibition against making such recordings as set out in s 9 of the Court Security Act. I advised Mr Zonnevylle that this was particularly the case as the proceedings were being recorded by the Reporting Services Branch and this recording is the only official record of the hearing. Should Mr Zonnevylle require a copy of the recording, he was at liberty to obtain it following the hearing. There was no immediate benefit to be gained by him or the Tribunal in him recording the hearing on another device as the hearing proceeded.
Mr Zonnevylle then asked that I disqualify myself from dealing with the matter any further as I was demonstrably biased against him. The allegation of bias stemmed from my refusal to allow him to record the proceedings. It was not clear whether Mr Zonnevylle was alleging actual or apprehended bias, but he did indicate that my refusal to permit the recording implied that I was prejudiced against him and had pre-judged his case.
The fact that a decision-maker makes a ruling on a procedural issue against a party does not, without anything more, demonstrate that the decision maker does not bring an impartial mind to bear upon the determination of the substantive issues of the case. It certainly does not demonstrate that I am actually biased against the applicant and I reject any such suggestion.
Mr Zonnevylle did not identify any basis on which an independent observer might reasonably apprehend that I might not be open to persuasion in relation to the substantive matters to be decided. He did not articulate any logical connection between my action in not permitting him to use his own recording device and the possibility that I would not be impartial in deciding the issues to be determined in the proceedings. This was particularly the case as the hearing of the substantive matters had not in fact commenced and I had not given either party any indication of my views on any issue other than that concerning Mr Zonnevylle's request to record the hearing. I therefore declined to disqualify myself and proceeded with the hearing.
During the hearing, Mr Zonnevylle sought to revisit his request for various summonses which had been refused by the Tribunal. Any challenge to that decision should have been made by way of an appeal.

The scope of the access application

In brief, the information sought by Mr Zonnevylle in his access application is:

information from the Department of Justice, including expenses of the Head of the Department over the past three years, codes of conduct and certain policy documents referrable to codes of conduct and other guidelines;
information from the Crown Solicitor's Office, including expenses of the Crown Solicitor over the past three years, documents concerning an aspect of particular proceedings in the Tribunal, codes of conduct and guidelines, income received by the Crown Solicitor's Office when representing government agencies in certain specified proceedings before the Tribunal, some statistics and details of the remuneration of certain officers;
information from the Tribunal, including documents concerning a particular proceeding, policy documents, remuneration and contracts of employment of Tribunal members, and various statistics.

No decision has as yet been made by the Department to provide access to or refuse to provide access to any of the information sought as, on 4 October 2017, the Department decided to refuse to deal further with the application.
Section 80 of the GIPA Act sets out which decisions of an agency in respect of an access application are reviewable decisions. As set out in paragraph 4 above, Mr Zonnevylle has sought review of a number of decisions, each of which is dealt with below.

Validity of access application and deemed refusal

A decision that an application is not a valid access application is reviewable under s 80(a).
Mr Zonnevylle's issues concerning the decision as to the validity of the application primarily involve consideration of what he describes as a deemed refusal of the application. He points to s 51 of the GIPA which requires an agency to make a decision as to the validity of an access application within five days of receiving the application. It is not in dispute that a decision as to the validity of the application was not made within five days of receipt of the application. On 7 July 2017 (day 9) Mr Zonnevylle was advised that his application was valid.
Mr Zonnevylle does not appear to argue that a substantive decision was made by the Department that his access application was not valid. Such an argument would not be tenable as the Department clearly made a decision that the application was valid, albeit that decision was not made within the five day period specified in s 51. Rather, Mr Zonnevylle characterises the failure to make a decision on the validity of the application within the required five days as a "deemed refusal" under s 63 of the GIPA Act. As I understand it, he states that this is a decision which is therefore reviewable by the Tribunal under s 80(c).
Section 63 of the GIPA Act provides: 63 Deemed refusal if application not decided within time (1) If an agency does not decide an access application within time, the agency is deemed to have decided to refuse to deal with the application and any application fee paid by the applicant is to be refunded. Note. A deemed decision to refuse to deal with an application is reviewable under Part 5. (2) The deemed refusal to deal with an application does not prevent the agency from continuing to deal with the application and subsequently deciding the application and giving notice of its decision (a late decision) on the application. (3) The obligation to refund an application fee to the applicant is not affected by the making of the late decision and the late decision does not entitle the agency to payment of an application fee. (4) No processing charge can be imposed for dealing with an access application if the application was not decided within time (whether or not a late decision is made on the application).
Mr Zonnevylle argues that, as the decision on validity was not made within time, in accordance with s 63(1) and (4), the application fee for the access application must be refunded and no processing charge could be imposed for dealing with the application.
The Department, correctly in my view, submits that s 63 applies to a decision on the access application, that is, a decision on whether access to information is granted or refused, and not to an "initial decision" as to the validity of the access application. This is apparent from the wording of s 63 and its position in the GIPA Act. Section 51 on validity is contained within Division 3 of Part 4 of the GIPA Act which sets out the process for dealing with access applications, while s 63 is contained in Division 4 of Part 4 which contains provisions relevant to deciding access applications. It is clear that a decision on an access application can only be made with respect to a valid application.
Section 63 has no role to play with respect to an initial decision by the Department concerning the validity of Mr Zonnevylle's application. Indeed, as there has been no substantive decision on the access application (because the Department decided to refuse to deal with the application), s 63 has no role to play at all with respect to this application. Mr Zonnevylle's contentions, therefore, that he should be refunded the application fee and that the Department was not entitled to impose a processing charge because of a "deemed decision" are not legally correct.

Decision to provide or refuse access or to provide information in a particular way

Review may be sought under s 80(d) of a decision to provide access or to refuse to provide access to information in response to an access application. In addition, under s 80(i), review may be sought of a decision to provide access to information in a particular way or a decision not to provide access in the way requested by the applicant. Mr Zonnevylle seeks review on both these bases.
Mr Zonnevylle argued at the hearing that a "deemed decision" to refuse the application had been made because a decision had not been made within 20 working days as required by s 57 of the GIPA Act. The Department states that, as a decision was made prior to the 20 day mark to refuse to deal further with the access application because Mr Zonnevylle had failed to pay an advance deposit, there could be no deemed refusal.
Mr Zonnevylle appears to dispute that less than 20 days had elapsed before the decision to refuse to deal further with the application was made. In its submissions the Department has set out the sequence of events which occurred in dealing with the access application. From time to time, in accordance with s 57 of the Act the "clock" was stopped and the time within which the decision had to be made was therefore extended in accordance with that section. In the absence of any other evidence to the contrary, I accept the calculations made by the Department. As the time within which a decision was required to be made had not elapsed before the decision to refuse to deal further with the application was made, the deeming provision in s 63 did not come into play.
No decisions have been made by the Department to provide or refuse access to information, nor has any decision been made to provide, or not to provide, that information in a particular way. Neither is there any deemed decision to refuse to provide access. There is therefore no basis upon which these review powers can be invoked by Mr Zonnevylle in this application.

Imposition of a processing charge and advance deposit

In the letter dated 24 August 2017 the Department advised Mr Zonnevylle that it had decided to impose a processing charge for dealing with the access application. Such a charge may be imposed under s 64 of the GIPA Act where the cost of processing the application may exceed the application fee.
Mr Zonnevylle was also advised that he was required to pay an advance deposit of 50% of the estimated processing charge. This amount of $517.50 was to be paid by 29 September 2017. An applicant can be required to pay an advance deposit for payment of a processing charge under s 68 of the GIPA Act. Section 68 also sets out what information must be given to an applicant in a notice which requires an advance deposit to be paid. The letter of 24 August 2017 complied with those requirements.
Decisions to impose a processing charge and to require an advance deposit are reviewable under s 80 (j) of the GIPA Act.
Mr Zonnevylle describes the imposition of the processing charge as "unlawful". In part, this statement relies on his contentions dealt with above concerning a "deemed refusal" in relation to the decision on the validity of the access application. For the reasons given previously, I do not accept that there has been a decision made in accordance with s 63 which would preclude the imposition of a processing charge.
The Department estimated that the processing time for dealing with the amended scope of the access application was 35.5 hours. The Department has provided a schedule which sets out how this figure was calculated. Section 64 of the GIPA Act provides for a rate of $30 per hour in processing charges and the application fee of $30 counts towards the first hour.
Mr Zonnevylle disputed aspects of the amounts of time estimated by the Department to be involved in dealing with his access application. However he provided little detail or any basis upon which he believes the Department erred. Based on the available information, I am satisfied that the processing charge was reasonable and appropriate in the circumstances.
Section 69 of the GIPA Act states that the maximum advance deposit that an applicant can be required to pay is 50% of the estimated total processing charge. The Department decided to request an advance deposit in that amount. This was something that the Department was empowered to do and, again, is something which I am satisfied was reasonable in the circumstances.

Refusal of reduction in processing charge

Mr Zonnevylle sought a reduction in the amount of the processing charge imposed by the Department. The Department treated his request as a request for a reduction in the processing charge on the basis that the information sought by him is of special benefit to the public generally under s 66 of the GIPA Act. That application was refused on 4 September 2017.
On 25 September 2017, however, a further letter was sent to Mr Zonnevylle in which he was advised that, in light of the Tribunal's decision in National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151, a decision concerning an entitlement to a reduction in a processing charge could only be made when an access application had been determined, not prior to any such determination. He was therefore advised that the letter of 4 September 2017 should be taken as foreshadowing the decision that was likely to be made about his entitlement to a reduction if the processing charge was imposed when the access application was determined.
The Department submits that, in line with the decision in National Tertiary Education Union v Southern Cross University, no decision about a reduction in the processing charge has been made as the access application has not been decided. The Department states no reviewable decision to refuse a reduction in a processing charge within s 80 (k) of the GIPA Act has been made.
In Page v Southern Cross University [2017] NSWCATAP 80 the Appeal Panel confirmed that a reviewable decision to refuse a reduction in a processing charge may only be made after an access application has been determined.
Mr Zonnevylle submits that the decision in Page is not relevant to his application as it deals with the "dollar value" of a discount (not the "proportion" of the discount) which can only be determined once the final value of any processing charge is known. He also submits that National Tertiary Education Union v Southern Cross University was wrongly decided.
I am bound by the Appeal Panel's decision in Page which agreed with the conclusions reached in the National Tertiary Education Union matter. The Department was therefore correct to conclude that a decision whether a discount in accordance with s 66 of the GIPA Act could not be made until the matter was determined. There is therefore no reviewable decision before me in relation to a discount.
Mr Zonnevylle also referred to the general provision in s 127 of the GIPA Act which permits and agency to waive, reduce or refund any fee or charge payable under the Act. No such decision is before the Tribunal and nor does s 80 provide a ground of review in relation to a decision made under s 127.

Refusal to further deal with the access application

Section 70 of the GIPA Act provides that an agency may refuse to further deal with an access application if the applicant has failed to pay a requested advance deposit. The Tribunal has clearly concluded in Styles v Wollondilly Shire Council [2004] NSWADT 167 and in National Tertiary Education Union v Southern Cross University that an agency is entitled to refuse to further deal with an access application if an advance deposit has not been paid by the due date.
In the circumstances of this case, Mr Zonnevylle failed to pay the advance deposit by 28 September 2017 and the Department acted within the terms of legislation in refusing to further deal with his access application.

Referral to Information Commissioner and report to Minister

Mr Zonnevylle has made substantial submissions that named officers who dealt with his access application failed to exercise certain functions under the GIPA Act or failed to exercise them in good faith. He states that, as a result, his rights under the GIPA Act have been compromised or violated.
Having read the available documentation, including the email correspondence between Mr Zonnevylle and the officers and their decisions, I consider that the departmental officers exercised their functions under the GIPA Act in response to Mr Zonnevylle's access application in a fair and considered way. There is no evidence, other than the series of allegations set out in Mr Zonnevylle's submissions which would support a conclusion that the officers failed to exercise their functions or did not act in good faith.
It is true that the decision as to the validity of the application was not made within the five days specified in the Act. The Department has apologised for the delay and I cannot see any basis for concluding that the delay was the result of any misconduct. Indeed, I do not find that the officers have engaged in any misconduct of any kind.
I am not satisfied on the material before me that any of the officers has failed to exercise a function under the Act in good faith. There is therefore no basis upon which a report could be made to the Minister. Similarly, I am not satisfied that any matter indicative of a systemic issue in relation to the determination of access applications by the Department has been established which would warrant referral to the Information Commissioner.
Mr Zonnevylle also alleged that the officers have committed offences under the GIPA Act. The Tribunal has no power to investigate or prosecute offences.

Order 1. 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: 26 July 2018

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