Zonnevylle v NSW Department of Justice [2019] NSWCATAD 215 | Case summary

The Relevant Statutory Provisions

The Department's decision that the Access Application was not a valid access application is a reviewable decision pursuant to s 80(a) of the GIPA Act.
The Department bears the burden of establishing that its decision is justified: GIPA Act, s 105(1). The task of the Tribunal is to decide what is the correct and preferable decision and, in doing so, it may exercise all of the functions conferred or imposed by any relevant legislation on the administrator who made the decision on behalf of the Department: Administrative Decisions Review Act, s 63.
The objects of the GIPA Act are set out in s 3: 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 16 of the GIPA Act provides: 16 Agencies to provide advice and assistance (1) An agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available. (2) An agency must provide the following specific advice and assistance to a person who requests access to government information: (a) advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed, (b) advice on how to make an access application for the information if the information is not publicly available from the agency but appears likely to be held by the agency, (c) if the information appears unlikely to be held by the agency but appears likely to relate to the functions of some other agency, the contact details of the other agency, (d) the contact details of the Information Commissioner and advice on the availability of and how to access any information published by the Information Commissioner that it appears may be relevant to the person's request. (3) An agency is only required to provide advice and assistance under this section that it would be reasonable to expect the agency to provide.
Section 41 of the GIPA Act provides: 41 How to make an access application (1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements) for access applications: (a) it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2), (b) it must clearly indicate that it is an access application made under this Act, (c) it must be accompanied by a fee of $30, (d) it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application, (e) it must include such information as is reasonably necessary to enable the government information applied for to be identified. Note. See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application. See also section 52 (3) concerning assistance to be afforded by an agency to an access applicant. (1A) If the applicant has applied at any time to another agency for substantially the same information, an application must also include the name of the other agency. However, failure to comply with this subsection does not affect the validity of an application. (2) An agency may approve additional facilities for the making of an access application or the payment of an application fee. (3) An access application is not considered to have been received by an agency until it is actually received by the agency.
Section 51 of the GIPA Act provides: 51 Initial decision as to validity of application (1) When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either: (a) acknowledging receipt of the application as a valid access application, or (b) notifying the applicant that the application is not a valid access application. Note. An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications. (2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received. Note. The decision as to the validity of an application is reviewable under Part 5. (3) An acknowledgement of receipt of a valid access application must include the following: (a) the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application), (b) a statement that the application will be deemed to have been refused if not decided by the required date, (c) the following statements about the inclusion of information in the agency's disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log): (i) a statement that information concerning the application is likely to be included in the agency's disclosure log and that the applicant can object to this, (ii) a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant's objection, (d) such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct. (4) Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application. (5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.
Section 52 of the GIPA Act provides: 52 Agency assistance with invalid applications (1) The notification of an agency's decision that an application is not a valid access application must: (a) include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and (b) if a reason is non-payment of the required application fee, invite the applicant to pay the fee, and (c) if a reason is failure to provide required information, invite the applicant to provide the information, and (d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application. (2) The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate), and is then deemed to have been made when the fee or information was received by the agency. (3) An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application. (4) (Repealed) (5) An applicant is entitled to a refund of any application fee that accompanied an invalid access application (unless the application subsequently becomes valid).
Section 57 of the GIPA Act provides: 57 Required period for deciding application (1) An agency must decide an access application and give the applicant notice of the agency's decision within 20 working days (the decision period) after the agency receives the application. (2) The decision period can be extended by up to 10 working days for either or both of the following reasons (with a maximum extension under this subsection of 15 working days for any particular access application): (a) consultation with another person is required under a provision of this Act, (b) records are required to be retrieved from a records archive. Note. The decision period can only be extended to allow for mandatory consultation, not just consultation that the agency chooses to do. (3) The regulations can also provide for the extension (and further extension) of the decision period. (4) The decision period can also be extended (and further extended) by agreement with the applicant. Note. A decision by an agency to refuse to agree to extending the decision period is not a reviewable decision. (5) The agency must as soon as practicable after the decision period is extended (and in any case within 5 working days after it is extended) give the applicant notice of any extension of the decision period (including any extension by agreement with the applicant), indicating the date on which the extended decision period will end. (6) An access application is considered to have been decided within time if the agency decides the application and gives the applicant notice of the agency's decision within the decision period. The decision period is also referred to in other provisions of this Act as the period within which an application is required to be decided.
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). (5) Despite this section, the obligation to refund an application fee to the applicant does not apply to any application that was transferred to or from the agency.

The Parties' submissions

In its legal contentions filed on 31 January 2019, the Department identified the applicant's contentions as that his access application had been deemed to be refused pursuant to s 63 of the GIPA Act on the grounds: 1. The Department failed to issue the initial valid/invalid letter within 5 working days of receiving the Access Application in accordance with s 51(2) of the GIPA Act. As such the Department has made a "late decision" and the Access Application is the subject of a "deemed refusal"; and 2. The Department failed to make a decision within 20 working days of receiving the Access Application as required by s 57(1) of the GIPA Act, and accordingly the Department made a "late decision" and the application is the subject of a "deemed refusal" pursuant to s 63 of the GIPA Act.
The Department submitted that s 51(2) of the GIPA Act requires notification of the validity of an access application within 5 working days and noted the provisions of s 36(1) of the Interpretation Act 1987 (NSW) which provides that: "If in any act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event."
The Department submitted that the day an application is received is not counted in the determination of the 5 working days allowed by s 51(2). On that basis 5 working days from the receipt of the Access Application on 5 September 2018 was 12 September 2018. The Department submitted that the evidence before the Tribunal indicates that the letter dated 12 September 2018 acknowledging the Access Application as valid was sent on that date.
The Department also relied upon s 126(2) of the GIPA Act which provides that a notice or notification under the Act given by an agency to a person is "considered to have given to the person when it is posted by the agency".
The Department further submitted that, in any event, s 63 of the GIPA Act does not have the effect that a failure to comply with s 51(2) of the GIPA Act gives rise to a deemed refusal. The Department relied upon the decision of a Senior Member of the Tribunal in Zonnevylle v Department of Justice [2018] NSWCATAD 158 at [21]: 21 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.
That passage was approved by the Appeal Panel on appeal from that decision (Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [84]). In the Appeal Panel decision, at [85], the Appeal Panel expressly stated: "While we accept that the legislation imposes a limit of 5 working days to tell an applicant whether the application is valid, a decision made after the time, is a valid decision."
In respect of the proposition that the Department failed to determine the Access Application within 20 working days, thereby giving rise to a deemed refusal, the Department submitted that s 51(4) of the GIPA Act explicitly states that acknowledging receipt of an application as a valid access application does not prevent an agency from subsequently deciding that it is not a valid access application.
The Department submitted that the applicant was informed on 4 October 2018 that the Access Application was invalid, that that notification occurred within the time specified in the Act for determination of a decision and that no deemed refusal arose pursuant to s 63 of the GIPA Act because the Access Application has been determined to be invalid and therefore no decision was required to be made about access to the information sought.
The applicant commenced his submissions filed on 3 April 2019 by questioning "the Tribunal's ability to act impartially". The applicant did not suggest that that submission had any practical consequence.
In respect of the issues canvassed by the Department in its legal contentions, the applicant submitted that the postal receipt (Exhibit F) establishes that the Access Application was delivered at 7.55 am on 5 September 2018, which was before the commencement of the official working day of the Department. The applicant submitted that the Access Application was received before the working day on 5 September and that, accordingly, the first of the 5 working days for the purposes of s 51(2) was 5 September 2018. The applicant submitted that it followed that the posting of the letter on 12 September 2018 was a failure to comply with the timetable set out in s 51(2).
The applicant further submitted that the Department had failed to respond to his access application within the 20 days laid down in s 51. The substantive part of the applicant's submissions concluded at paragraph 39 where the applicant submitted that the access application was decided out of time and that therefore s 63 was brought into operation. The submissions do not indicate clearly what consequence that is said to have.
In Part C of his submissions the applicant sought to have questions of law referred to the Supreme Court. Section 54 of the NCAT Act provides that the Tribunal may of its own motion or at the request of a party refer a question of law arising in proceedings to the Supreme Court for the opinion of the Court. Section 54(2) provides the Tribunal may only refer a question of law under that section if the President has consented in writing.
The applicant set out, over 7 pages of his submissions, 20 questions with numerous sub-questions which the applicant submitted were questions of law arising from the current proceedings. I do not consider it necessary or appropriate to set out the identified questions. I simply note that, in my view, none of the questions are questions of law arising in these proceedings. None bear any relation to the question I have to determine. I further note that, in any event, none of the questions are of sufficient importance or significance that it would be appropriate to consider their referral to the Supreme Court. I note the decision of the Appeal Panel of the Tribunal in Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 at [24]-[25] where a number of factors in favour of and against a referral of questions of law to the Supreme Court are set out. I note that none of the factors identified in that case as factors in favour of referral are present in this case.
In the course of oral submissions it became clear that the substantial issue for consideration on this application is whether the applicant's Access Application did or did not include such information as is reasonably necessary to enable the government information applied for to be identified. In my view it is clear that the issues which the Department understood the applicant to be raising and the issues that the applicant has sought to raise in his written submissions are not in any way relevant to the matters I have to determine.
As the Appeal Panel has determined in Zonnevylle v Department of Justice, referred to at [48] above, a failure to notify an initial decision within 5 working days does not render any subsequent decision invalid. Therefore it is quite irrelevant whether or not the letter of 12 September 2018 was sent within 5 working days. Were it necessary to decide, I would accept the, admittedly hearsay, evidence of Ms Chew that the letter was posted on 12 September 2018. I would also accept the submission of the Department that the 5 working days commenced on 6 September 2018. Section 36(1) of the Interpretation Act is unambiguous. The day on which an application is received is not counted in the calculation of 5 working days. The fact that the Access Application may have been received before business hours on the day of receipt does not affect that conclusion.
Furthermore, as the Department determined the Access Application to have been invalid, it was not deemed to have been refused pursuant to s 63. Section 63 can have no operation in respect of an application which has been determined to be not a valid application.
In the course of oral submissions I raised with the parties the question "whether an access application should be held invalid because of a failure to comply with s 41(1)(e) in circumstances where only part of the application does not include such information as is reasonably necessary to enable the government information applied for to be identified".
It was in respect of that issue that I gave the parties leave to file written submissions after the hearing.
The reason why I considered that it was necessary to receive further submissions on that point is that the respects identified by the Department in which it was said the access application did not provide sufficient information were limited to: 1. Whether the references in paragraph 10 to "AEOD matters" were a reference to the Administrative and Equal Opportunity Division of the Tribunal alone or whether the application sought information concerning both the Administrative and Equal Opportunity Division and the Occupational Division; and 2. Secondly, whether the reference to "the number of requests for compensation sought by an applicant as a result of an NCAT review" in sub-clause 10(c)(xiii) referred to compensation awarded to a party as a consequence of findings in a substantive matter or to costs orders.
If the application was in fact insufficiently specified in respect of the question whether the applicant sought documents relating to the Administrative and Equal Opportunity Division alone or both the Administrative and Equal Opportunity Division and Occupational Division together, that might constitute a significant proportion of the access application.
If, as I have concluded for reasons I will outline, the application is not insufficiently specified in that regard, then the only respect in which the access application could be said to be insufficiently specified is the question what is meant by "compensation" in sub-paragraph 10(c)(xiii). That is an insubstantial proportion of a much larger application.
In its note filed after the hearing, the Department provided helpful submissions which addressed the principles to be extracted from the text and legislative purpose of the GIPA Act and from cases referring to s 41(1). In respect of the principles to be extracted from the text of the GIPA Act, the Department submitted: 11 The formal requirements of s. 41(1) are to be read strictly. To be a valid access application, an application must comply with all paras (a)-(e) of s. 41(1). That is, despite the absence of an "and" or "or" between them, these paragraphs are to be read cumulatively not disjunctively. 12 Each of paras (a)-(e) must itself be fully complied with. For example, in para. (d), both the name and address must be stated. 13 The reference to "such information" in para. (e) must be a reference to "all such information". Importantly, the reference to "the government information" in para. (e) must likewise refer to "all the government information", not merely some of it. 14 Where the legislature has intended to deviate from a strict interpretation of the formal requirements for validity, it has expressly said so. For example: (a) Section 41(1A) expressly provides that failure to comply with that subsection does not affect the validity of an application; (b) Section 43(2) expressly provides that an application for government information is not a valid access application to the extent that the application is made in contravention of that section; (c) Section 51(1) authorises an agency to decide whether an application for access to government information is a valid access application where it "appears [to be] intended to be an access application"; (d) Section 51A expressly prohibits an agency from treating an application as being an invalid access application only because of the non-payment of the required application fee in certain circumstances; (e) If those circumstances are remediated after the application is made "and the application would have been valid had the required application fee been pald", the application becomes a valid access application (s. 51A(2)); (f) Section 51A(3) expressly provides that the refund of an application fee "does not affect the validity of an access application that was duly made". 15 Moreover, s. 51(1) authorises an agency to decide whether "the" application is a valid access application, not whether part of the application is a valid access application and part is not. The words "an application" or "the application" are to be read in their natural and ordinary meaning as a or the "whole" application. 16 Again, where the legislature has intended to deviate from this natural and ordinary meaning, it has expressly said so. For example: (a) The chapeau to s. 60(1) provides that an agency "may refuse to deal with an access application (in whole or in part) for any of the following reasons ... "; (b) Section 44(2) provides that "an agency may, for the purposes of transferring only part of an access application, split an application into 2 or more applications. Any resulting application is to be treated as a separate application by the applicant." 17 Both these provisions are premised on there being a [valid] "access application". Likewise, whilst s. 55(2) contemplates multiple reviewable decisions being made, it (as with all provisions after Div. 1 of Pt. 4) is premised on the existence of a valid access application.
In respect of legislative purpose, the Department submitted: 19 The making of formal access applications is a cornerstone of the Act: contrast s. 9 with the provisions in ss. 7 and 8 relating respectively to the "proactive" and "informal" release of Government information. Whilst one of the objects of the Act is "giving members of the public an enforceable right to access government information" (s. 3(1)(b)), that language is only reflected in s. 9, which is concerned with "access applications" as defined in s. 4(1). Moreover, whilst it is the intention of Parliament that the discretions be conferred by the Act "be exercised, as far as possible so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information" (s. 3(2)(b)), s. 41(1)(e) itself involves no reviewable exercise of discretion. Furthermore, s. 51(5) provides that an agency's decision that an application is not a valid access application is "presumed to be correct", subject to any review of the decision under Pt. 5. 20 Accordingly, whilst Div. 2 of Pt. 4 and subsequent provisions of the Act that refer to "access applications" are premised on there being "valid access applications", the Act strikes a balance between the need to comply with the formal requirements for access applications on the one hand and giving members of the public an enforceable right to access government information on the other. For example, s. 52, set out above, is entitled "agency assistance with invalid applications" and provides, amongst other things, that an agency provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application" (s. 52(3)). See also s. 16. 21 If the strict construction of s. 41(1)(e) above were not adopted, an application for access to government information could arguably be a valid access application if one percent of the application "included such information as is reasonably necessary to enable the government information applied for to be identified". Plainly, that was not the legislative purpose of s. 41(1)(e). Moreover, splitting an access application into a valid part and an invalid (but capable of later becoming valid under ss. 51A(2) or 52(2)) part would be unworkable given the statutory time frames.
The Department referred to a number of previous decisions of the Tribunal. In Rosser v Healthcare Complaints Commission [2014] NSWCATAD 24 at [17], the Tribunal noted that the respondent to those proceedings had submitted that an application lodged under the GIPA Act was invalid as it did not comply with the requirements of s 41(1)(b) and 41(1)(c), that is the application did not state that it was an application under the GIPA Act and it was not accompanied by the appropriate fee. The Tribunal commented "I observe … that while the submission may technically be a correct one, I doubt that I would have disposed of the application solely on that basis".
The Department submitted that the respondent's submission in those proceedings was not only technically correct but legally correct in that there is no other authority suggesting than an application not accompanied by the necessary application fee could be a valid application.
The Department also referred paragraph 57 of the decision in Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 where a Senior Member stated that he was "satisfied that large parts of the access application are invalid as it is not possible to ascertain what information is sought. The access application did not include the information that is reasonably necessary to enable the information applied for to be identified."
As the Department submitted, the Tribunal in that case did not specifically address the question whether an access application could be partially invalid under s 41(1)(e), nor did the Tribunal address the relationship between s 41(1)(e) and subsequent provisions of Part 4 including s 60(1)(a) and (b), which, as the Department noted, specifically provides that "an agency may refuse to deal with an access application (in whole or in part)".
The Department thirdly referred to Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 222. In that case the respondent had determined that part of an access application was not a valid access application. The Tribunal did not need to determine whether that decision was correct and the Tribunal did not directly address the question whether an access application could be partially invalid under s 41(1)(e).
The Department submitted that in this case the Department had formed the view that the access application did not include certain information reasonably necessary to enable the government information applied for to be identified, that the Department had complied with s 52(1)(c) by inviting the applicant to provide the necessary information, and that, had the applicant provided that information, the application would have become a valid access application.
The Department submitted that the applicant "chose not to do so but rather to engage in frequent and unproductive correspondence, and, ultimately, this application to the Tribunal".
The applicant's submissions in response, received on 7 June 2019, largely rehearsed the matters raised by the applicant in his initial submissions and at the hearing. In that respect they do not require further consideration.
However two submissions made by the applicant do warrant consideration.
First, the applicant submitted that s 15 of the GIPA Act required that "agencies must exercise their function so as to promote the object of this Act". However, that submission takes s 15(a) out of context. Section 15 provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
It is clear that s 15 is directed to the consideration of whether there is an overriding public purpose against the disclosure of information. It does not provide any specific direction or standard in relation to the determination of the validity of applications pursuant to s 51. However, s 3(2) of the GIPA Act provides that the Act should be interpreted and applied so as to further the object of the Act.
The second matter of potential relevance raised by the applicant was the terms of s 58(2) of the GIPA Act. Section 58 provides: 58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
The fact that more than one decision can be made in respect of a particular access application is a reason why it is not impractical, in the manner suggested by the Department (in paragraph 21 of its note, set out at [65] above), to treat an access application as invalid in part.

Zonnevylle v NSW Department of Justice

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (6)

Cited By (3)