Zonnevylle v NSW Department of Finance & Services

NCAT Administrative and Equal Opportunity|2015-08-25

REASONS FOR DECISION

The Applicant seeks an order under section 112 of the Government Information (Public Access) Act 2009 ("the GIPA Act"). section 112 provides: 112 Report on improper conduct If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

Background

The substantive matter concerned a request for information under the GIPA Act. Details of the Applicant's access application and the relevant discussion of issues in the matter can be found in my decision at Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175.
I affirmed the Respondent's decision to release some of the requested information in full or in part and found that the Respondent had undertaken reasonable searches for the requested information that could not be located. I formed the view that it is improbable that further searches would locate additional information that fell within the scope of the access application. I therefore accepted the Respondent's assertion that it did not hold some of the information that the Applicant requested.
The Respondent relied on the evidence of Mr Andrew Johnson, who gave evidence relating to the searches undertaken and Mr Andrew Bauman, who gave evidence about the structure of the Respondent in support of the claim of legal professional privilege.

Further issues

I noted that the Applicant had expressed concern and raised numerous issues in relation to the Respondent's conduct in processing his various access applications. He requested that the Tribunal take action pursuant to section 112 of the GIPA Act. I also noted that the Tribunal's powers in relation to section 112 are a matter of some disagreement between the parties and I listed the matter for further hearing in relation to that issue.
Mr Dalla-Pozza provided written submissions setting out the Respondent's arguments in regard to the construction of section 112. Mr Granziera appeared at the hearing on the issue and subsequently provided additional submissions.
The Applicant has also provided a considerable amount of material in relation to the issue. His material is directed towards the conduct that he contends warrants an order under section 112.
He identified a number of officers whom he alleged had failed to act in good faith. The Respondent has advised that the following officers identified in the complaint are not currently employed by the Respondent: Helen Dickinson, Jenny Wiggins, Julie King, Peter Duncan, Michael Coutts-Trotter, Anne Skewes, James Norfor, Sanjay Sridher, Deidre O'Donnell.
The following officers identified in the complaint are currently employed by the Respondent: Elizabeth Verteouris, Andrew Johnson, Anthony Lean, Paul Dobing, Andrew Bauman

History to the Applicant's allegations

Mr Dalla-Pozza provided a detailed history to the Applicant's allegations. That history appears to be correct. In summary: • the Applicant's allegations relate to two GIPA applications - referred to as "GIPA #13" and "GIPA #17"; • there is an overlap between GIPA #13 and GIPA #17. Item 1 of the GIPA #17 access application requested information in respect of GIPA #13; • the GIPA #13 access application was made in 2012. The decision was largely handled by Ms Helen Dickenson. Ms Dickenson and others involved in the processing of GIPA #13 have since left the Respondent; • GIPA #17 was the subject of the review in the substantive proceedings in this matter; • Mr Johnson was the officer primarily responsible for responding to GIPA #17. At times, he worked under the supervision of Ms Elizabeth Verteouris; • In July 2014, the Respondent conceded that GIPA #13 had not been processed in time and that, accordingly, it was not entitled to levy a processing charge; • the Respondent also conceded that the Applicant was entitled to the information requested in item 1 of GIPA #17 and agreed to provide the documentation that had been located in response to GIPA#13; • the GIPA#13 information (which was requested in 2012) was ultimately released on 23 July 2014; • some material was located in relation to item 2 of GIPA #17 and it was released on 30 July 2014; • the Respondent subsequently became aware that GIPA #13 searches had failed to locate some documents. It requested that the Tribunal remit the application so that fresh searches could be performed. The remittal was ordered in November 2014; • a large number of other documents were located and that material, with some redactions, was ultimately released in December 2014 (i.e. GIPA #13 information that was requested in 2012 was not released until December 2014); • during the hearing, the Applicant submitted that referrals under section 112 should be made against a number of officers of the Respondent. He identified a number of officers and conduct that he alleged indicates that the officers had failed to act in good faith; • there is often no clear differentiation between conduct alleged to have been committed by a specific officer and the alleged conduct of the Respondent; • most of the officers who the Applicant has identified were not exercising a function conferred on them "by or under" the GIPA Act and therefore the Applicant's allegations concerning those officers are not within the scope of this request; • the Applicant alleged that officers of the Respondent, including Ms Dickenson, Ms Wiggins and Ms King and various other senior officers, acted inappropriately in the course of dealing with GIPA#13. In particular he contends: 1. he never received a copy of the decision made in GIPA #13; 2. during GIPA #13, some material was redacted; 3. GIPA #13 was not decided within time; 4. the Respondent initially decided to charge a processing fee; 5. the decision-makers did not treat various correspondence from him as an application for an internal review; 6. senior staff within the Respondent (including, at least, Mr Lean), made false and misleading statements and were otherwise inappropriately motivated to obstruct GIPA #13; 7. Ms Dickenson sent numerous emails to him on 17 April 2012; 8. the copy of one of the documents which the Respondent released was not legible; 9. the Respondent failed to respond to the Applicant's complaints about Ms Dickenson; 10. Ms King may have made a false and misleading statement by emailing that she was not the person the Applicant was trying to contact. • the Applicant alleged that officers of the respondent, including Mr Johnson and Ms Verteouris, acted inappropriately during GIPA #17 by: 1. refusing to reply to his correspondence of 9 April; 2. failing to accede to his requests to send all correspondence by email; 3. initially deciding that the application was invalid and suggesting a re-scoping of the application, particularly by omitting parts 2 and 3 of the application; 4. failing to advise the applicant appropriately regarding his application; 5. failing to decide the application in time; 6. inappropriately relying on the excluded information exemption. • the Applicant alleged that those who instructed the Crown Solicitor to make the offer prior to the initial planning meeting acted inappropriately; and • the Applicant alleged that Mr Bauman is in breach of the Legal Profession Act 2012 because he is not a lawyer.

The Tribunal's approach to section 112 matters

The Tribunal has previously considered section 112 of the GIPA Act in Saggers v Environment Protection Authority (No 2) [2013] NSWADT 109 ("Saggers No.2") and Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189 ("Shoebridge").
In regard to each of the identified officers, the question to be explored is one of whether or not the officer failed to exercise in good faith a function conferred on them by or under the GIPA Act.
In Saggers v Environment Protection Authority [2013] NSWADT 204 ("Saggers No.1") I expressed the view at paragraph [28]: 28. The Applicant has requested referral of the matter pursuant to section 112. Such a referral requires that the Tribunal form the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under the GIPA Act. In my view, the Applicant has taken on a role comparable to that of prosecutor. He therefore bears the burden of establishing the facts upon which he seeks to rely for the purposes of section 112.
I remain of that view. The Respondent submits that, in light of its seriousness and the potential gravity of the consequences against those responsible, were they to be upheld, this allegation must be proved to a high standard (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 - 362).
In both Saggers and Shoebridge I conducted separate 'satellite' hearings to address the issues raised in relation to section 112. In each case it was with the consent of the parties as to the most appropriate approach to be adopted in the circumstances. Witnesses were available without the need for summonses and in each case they were cross-examined in relation to the issues raised by the applicant. In Shoebridge the officers who were the subject of the alleged failure to exercise a function in good faith were separately represented.
In the present matter, the Applicant has requested that the Tribunal require the officers to attend a hearing. The Respondent has questioned the Tribunal's power to conduct 'satellite' hearings, to summons witnesses or to require a witness to attend for cross-examination.
The Respondent contends that the section 112 requirement that the Tribunal form the opinion that an officer of an agency has failed to exercise a function in good faith 'as a result of an NCAT administrative review' suggests that consideration of a section 112 referral will ordinarily happen after evidence and argument has been heard in the course of the administrative review.
There seems to be merit in this argument. However, it also raises the question of whether or not an officer who is the subject of allegations needs to be accorded procedural fairness and given an opportunity to respond to the allegations. Such an opportunity would not be available if the Tribunal has no power to conduct 'satellite' hearings.
However, I note that Division 2 of Part 6 of the GIPA Act, which provides for offences of acting unlawfully (section 116); directing unlawful action (section 117); improperly influencing decision on access application (section 118); unlawful access (section 119); and concealing or destroying government information (section 120) provides an avenue whereby action can be taken directly against an officer and the officer would be afforded procedural fairness in any such action.
The Respondent has invited me to reconsider the issue of the approach to be taken to section 112 issues and I have done so. Notwithstanding the approach that I took in Saggers No.2 and Shoebridge, I am now of the view that the Tribunal has no power to conduct 'satellite' hearings for the purpose of section 112 of the GIPA Act. Further, I am now of the view that the Tribunal does not need to accorded procedural fairness to an officer who is the subject of allegations or to give an opportunity to respond to the allegations. That issue is addressed by the provisions of Division 2 of Part 6 of the GIPA Act and any disciplinary action that followed from a referral under section 112 would be subject to agency policies concerning such action.
It would follow that I agree with the Respondent in regard to GIPA #13. The Applicant has never made any application to the Tribunal in respect of GIPA #13. GIPA # 17 sought the same information sought in GIPA #13 but there has been no administrative review in relation to GIPA #13. Accordingly, the Tribunal could not form the opinion in relation to GIPA #13 that an officer of an agency has failed to exercise a function in good faith 'as a result of an NCAT administrative review'. Therefore I have decided that no action should be taken under section 112 in relation to GIPA #13.
I note however that the delay in providing the material that was requested in GIPA #13 and which was ultimately provided to the Applicant gives the agency serious cause for concern in terms of how it handled the matter and suggests that effort needs to be made to ensure that a similar situation does not arise in the future. As noted above, information that was requested in 2012 was not released to the Applicant until December 2014. Clearly this delay is unacceptable and it fails to accord with the object of the GIPA Act. It is difficult to understand how it could be explained in terms of 'honest ineptitude' or how it could be seen as demonstrating an 'honest and conscientious' approach to the functions conferred under the GIPA Act.
I also note that where an agency releases a document which is clearly not legible, it is difficult to see how the agency can be said to have released the information that is contained within the document. In my view, a decision to provide access to information under section 58(1)(a) of the GIPA Act requires that the agency release an legible copy of the document if it is within the agency's capacity to do so.
I also note that I do not agree with the Respondent that there could be no utility in taking action under section 112 of the GIPA Act in circumstances where the officers most closely associated with an access application are no longer employed in the agency. A referral to the Minister is an avenue whereby issues of concern can be raised with the view that they be addressed by the agency. There may be circumstance in which this could be advantageous, for example in relation to systemic issues of concern, even though individual officers may have left the agency.
I agree that it appears that the object of section 112 of the GIPA Act is to enable the relevant Minister to be informed of any circumstances where an officer may be thought to have acted inappropriately with respect to his or her functions under the GIPA Act. This would permit that Minister to take appropriate administrative or disciplinary steps and thereby achieving the objects of the GIPA Act and ensuring greater compliance with the Act in the future. However, there may be circumstances in which there are wider implications arising from the conduct or other factors impacting on officers with functions under the GIPA Act that warrant action being taken. I note that this does not appear to be the case in the circumstances of this matter. Further, the fact that an officer has left the agency would not necessarily prevent action being taken in regard to that officer.
The Applicant has made an application to the Tribunal in respect of GIPA # 17 and the question arises as to whether a referral should be made pursuant to section 112 in relation to that matter.

Standard of good faith

What is required for something to be done or omitted in good faith may vary from one case to the next. This makes it unwise, if not impossible, to place a definitive gloss upon the words of the statute: Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46 at [50].
There has been limited consideration as to what constitutes and what falls short of good faith for the purposes of the GIPA Act and the Freedom of Information Act 1989 in this Tribunal and the former Administrative Decisions Tribunal: see Saggers No.1; Shoebridge; O'Hara v North Sydney Council [2005] NSWADT 100.
I have previously expressed the view that the test of good faith is predominantly subjective: Saggers No.1; Shoebridge.
However, there are some objective components as well. For example, consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. Further, serious and careful consideration must be given to the application; there must be more than a cursory review. The GIPA Act does not allow an agency to simply turn a blind eye to the legislative requirements: Shoebridge at paragraphs [37], [40] - [42].
An agency may make any information that it holds publicly available either proactively or in response to an informal request unless there is an overriding public interest against disclosure. However, agencies must comply with the GIPA Act when providing access to government information in response to an access application.
When an agency receives an access application it is to decide whether the access application is valid and notify its decision to the applicant. It must provide reasonable advice and assistance so as to enable the applicant to make a valid access application.
An agency must exercise its functions so as to promote the object of the GIPA Act. It must have regard to any relevant guidelines issued by the Information Commissioner and must not take irrelevant considerations into account.
The obligations on an agency, and on those officers an agency's who have a function conferred on them by or under the GIPA Act, include the obligation to provide advice and assistance to a person who requests, or proposes to request, access to government information. It must undertake such reasonable searches, using any resources reasonably available, as may be necessary to find any of the information applied for that was held by the agency when the application was received. An agency must decide an access application within the timeframe set up by the GIPA Act and in doing so must conduct necessary consultations.
An agency may refuse to deal with an access application for any of a number of reasons set out in section 60 of the GIPA Act. However, before refusing to deal with an access application on the basis that dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application.
Before determining an access application the agency has an obligation to balance the public interest considerations in favour of disclosure and those against disclosure.
The officer who performs these tasks is obliged to perform them in good faith and will also be subject to applicable policies and procedures that apply to them in their capacity as a public officer.
It is conceivable that the Tribunal could form an opinion under section 112 of the GIPA Act independently of a request from one of the parties. However, where a section 112 referral is raised by the Applicant, as is the case in this matter, the Applicant takes on a role comparable to that of a prosecutor, and bears the burden of establishing the facts upon which he or she seeks to rely for the purpose of section 112.
In Shoebridge at paragraph [44] I expressed the view that each of the officers who had dealt with the access application and had a role in the final determination had an obligation to perform their task in good faith. The obligation did not merely reside with the officer who made the final determination. It extended to an officer who supervised the officer determining the application and to his supervisor who reviewed the process and had input into the final assessment.
The Respondent has submitted that insofar as an allegation of lack of good faith relates to the outcome of a decision listed in section 80 of the GIPA Act, the only persons susceptible to referral under section 112 are those who are conferred with a decision-making function under section 9(3) of the GIPA Act.
It remains my view that each officer who has responsibility in relation to the determination of an access application has an obligation to perform their task in good faith. It is possible that a person who makes a decision listed in section 80 may do so without the actual authority of the principal officer of the agency purely because of a failure to formally delegate the functions. In my view it would not follow that a referral under section 112 could not be made in relation to that person.
I agree that that the Tribunal is entitled to apply the presumption of regularity to the conduct of a particular officer, such that it can assume that an officer of an agency exercising a function is properly authorised by the agency to do so. They would have an obligation to perform their task in good faith. This will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes. An obligation to perform a task in good faith offers a warning against game playing at the margins of a statutory proscription: see Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 per French J at paragraph [93].
They have an obligation to make a genuine attempt to discharge the relevant functions, having regard to the circumstances in which they are exercised, such as having limited resources, and established procedures: Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701 per Walmsley AJ at paragraph [756].
In my view, the exercise of a power in good faith requires an 'honest and conscientious' approach. However, before the Tribunal could form the opinion that an officer of an agency has failed to exercise a function in good faith it would be necessary to form the view that the officer's conduct demonstrates something more than honest ineptitude: see discussion in Saggers No. 1 from paragraph [30].
This view is consistent with the provision of section 115 of the GIPA Act which states: 115 Personal liability No matter or thing done by an agency or officer of an agency, or by any person acting under the direction of an agency or officer of an agency, if the matter or thing was done in good faith for the purposes of executing this Act, subjects the officer or person so acting, personally to any action, liability, claim or demand.

Consideration of the allegations

As noted above, the Applicant has made allegations in regard to the conduct of a number of officers of the Respondent in regard to GIPA #17. He has lodged voluminous material in support of his allegations. Many of these allegations and the supporting materials are general in nature. Those that are specific are mostly alleged failures to engage with the Applicant e.g. not responding to correspondence or not communicating with him as he requested. More significant are the alleged failures to comply with requirements of the GIPA Act in regard to timeframes or the conduct of the matter before the Tribunal. However, I agree with the Respondent that the failure is explicable by the complex nature of the application and the history of communication between the Applicant and the agency. I am not satisfied that it demonstrates that an officer failed to act in good faith.
The fact that an officer decided to redact or withhold some material cannot demonstrates that an officer failed to act in good faith in either a subjective or objective sense. I agree with the Respondent that even were the Tribunal ultimately to set aside or disagree with various decisions and actions taken by officers of the Respondent, that would not be enough to warrant making of a section 112 referral.
The legislative intent in the GIPA Act is to balance the public interest in favour of releasing government information against legitimate considerations against its release. Therefore, without more, the fact that an officer employed at an agency considered that some information ought not be released, even if the Tribunal was to set aside that decision, could not evidence either objective or subjective bad faith.
It must be shown that the officer did not adopt an honest and conscientious approach. I am not persuaded that the material I have been given indicates that officers of the Respondent failed to adopt an honest and conscientious approach in regard to determining GIPA #17.
I note that the Applicant also asserts that the offer made by the Respondent by its letters of 23 June 2014 and 27 June 2014, at the time of the initial planning meeting, somehow show a failure to exercise a function under the GIPA Act in good faith. I am not satisfied that this is the case but, in any event, I do not accept that the giving of instructions to lawyers in litigation is a function under the GIPA Act for the purposes of a section 112 referral.
Similarly, I am not satisfied that the Applicant has established that Mr Bauman engaged in conduct in breach of the Legal Profession Act 2012. I am not satisfied that this demonstrates a failure to act in good faith and, in any event, Mr Bauman was not performing a function under the GIPA Act for the purposes of a section 112 referral.
In summary I note that I have read and considered the material that the parties have lodged in relation to this issue. While I accept that there is some reasonable basis for the Applicant's dissatisfaction in regard to the manner in which the Respondent dealt with his access application, I am not satisfied that any of the matters that he has raised demonstrate a failure by an officer of the Respondent to exercise in good faith a function conferred on the officer by or under the GIPA Act.
Accordingly, I do not consider that any action under section 112 of the GIPA Act is warranted.

Order 1. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused. 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: 09 March 2016

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